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Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 (21 April 2022)

Intro:-

The plaintiff seeks writs of certiorari and mandamus in relation to a decision of a delegate ("the delegate") of the defendant ("the Minister") to refuse to grant her a protection visa under the Migration Act 1958 (Cth), based on adverse credibility findings relying in part on her failure to provide further information supporting her claims. The plaintiff's application should be upheld on the ground that the delegate unreasonably exercised the discretion under s 62 of the Migration Act to refuse to grant her a visa without taking any further action to obtain additional information.

Facts:-

The plaintiff, a citizen of Turkey, entered Australia on a Student (Subclass 572) visa on 8 January 2015. On 24 March 2016, she lodged an application for a Protection (Subclass 866) visa. On 14 July 2016, she was notified that her application was invalid because she had failed to provide personal identifiers as required by s 46(2A) of the Migration Act. She had been asked to attend the Department of Immigration and Border Protection[1] ("the Department") to provide fingerprints, but she had misunderstood the request and had gone to a police station instead.

On 3 August 2016, the plaintiff made a valid application for a Protection (Subclass 866) visa, which was in substantially the same form as the invalid application. The application was prepared with the assistance of a translator, and the plaintiff indicated that she would need a translator if called to attend an interview.

In her protection visa application, the plaintiff claimed to be a lesbian and claimed that if she was returned to Turkey she would be killed or forced to marry a man, which she said would be worse than death.

Between August 2016 and April 2017, the plaintiff engaged in sporadic correspondence in broken but intelligible English with the Department about her application. The plaintiff did not hear anything about her application between April 2017 and August 2019. She states in an affidavit filed in support of her application in this Court that during this period her father died, her mental health declined, she became homeless, and she attempted to take her own life and was hospitalised.

On 19 August 2019, in response to a request for a criminal history check from a Senior Status Resolution Officer ("the Status Resolution Officer") at the Department, a Senior Border Force Officer sent an email to the Department stating that there was no record of charges or convictions but there was information indicating that the plaintiff had serious mental health issues. Subsequent emails show that, around this time, the plaintiff had been admitted to hospital under the Mental Health Act 2007 (NSW).

On 6 January 2020, an officer of the Department sent a letter to the plaintiff inviting her to attend an interview in Melbourne on 31 January 2020. Departmental emails from August 2019 show that the plaintiff was in New South Wales (in addition to being homeless and having no money). The plaintiff states in her affidavit that she does not recall receiving or reading the letter at the time.

On 14 February 2020, the plaintiff received two further letters by email from the delegate requesting further information. The first letter requested further information from the plaintiff pursuant to s 56 of the Migration Act ("the s 56 letter"). It stated that:

(1) the plaintiff's failure to attend the 31 January 2020 interview and her delay in lodging her application for a protection visa were relevant to an assessment of whether her claims for protection were genuine;

(2) the plaintiff's claims lacked "substantiating details such as dates and locations" and the delegate needed further information to be satisfied that her claims were genuine; and

(3) information indicating that the plaintiff had obtained a new Turkish passport and intended to return to Turkey "directly contradict[ed]" the plaintiff's claims that she could not return to Turkey because she feared she would lose her life.

The letter asked whether the plaintiff had any comments or further information to provide in relation to those matters. The inclusion of the third point in the letter is not insignificant. It means that the delegate must have reviewed the file and read the relevant correspondence and must therefore have been aware that the plaintiff was living in New South Wales, was homeless and had recently been admitted to hospital under the Mental Health Act.

The second letter invited the plaintiff under s 57 of the Migration Act to comment on the information indicating that she had obtained a new Turkish passport and intended to return to Turkey ("the s 57 letter"). The letter stated that the plaintiff's apparent willingness to return to Turkey could suggest that she did not genuinely fear that she would lose her life upon return.

On 17 February 2020, the plaintiff responded by email as follows:

"i am [name redacted] is waiting for my case, i havent go back turkey with getting passport, i am in sydeny without money and home, i have been reaaly bad situation to come back melbourne for case, no body listen to me even government, call me bla bla or whatever or ye ye ye, i am really suffering mentally and phscichly, i dont even have phone or money, i will have court in sydey for steal chochlate cause suffering financily, dowling court.. if i go back mine where am i now? people call me this and that... please help me"

In response, on the same day, the plaintiff received an email from the delegate stating that the Department was "prepared to re‑schedule [the 31 January 2020] interview to be held in Sydney in the week commencing 9 March 2020". The plaintiff was "encourage[d] ... to contact [her] previous case manager in Status Resolution should [she] require assistance". The Status Resolution Officer sent the plaintiff a separate email on 17 February 2020 stating that the plaintiff's application was continuing and the Department needed to interview her for the application to progress.

On 20 February 2020, the plaintiff responded to the delegate's email, stating:

"to protection visa assessment

i am on the street without money how can i make it to come melbourne, i really in bad situation, i came here for good life live my identity but here what i am living is like iam relegionous person from turkey, my life is worse then being death.." (emphasis added)

On 3 March 2020, the Status Resolution Officer wrote to the plaintiff stating:

"If you are continuing to experience difficulty, we may be able to provide some support for you.

Please contact me by email or phone so that we can discuss your current situation."

There was no response to this email.

Two weeks later, on 17 March 2020, the delegate refused to grant the plaintiff a protection visa. The plaintiff was notified of that decision by letter dated 18 March 2020.

Delegate's reasons

Under the heading "Findings of Fact", the delegate set out her reasons for finding that the plaintiff's claims were not credible. The delegate said that she had raised concerns about the plaintiff's failure to attend her scheduled interview in Melbourne and the plaintiff "did not engage with" the offer to schedule another interview in Sydney. The delegate said that she was not satisfied that the plaintiff's response to her concern about the plaintiff's failure to attend her scheduled interview in Melbourne constituted "a reasonable explanation for her failure to attend". The delegate said that the plaintiff's failure to "engage" with the offer to reschedule the interview was a "further reason for concern about the credibility of [the plaintiff's] protection visa claims".

The delegate recorded that:

(1) the plaintiff's failure to respond to the delegate's concerns about the plaintiff's delay in applying for a protection visa "raise[d] further concerns that the [plaintiff's] claims [might] not be credible";

(2) "[t]he [plaintiff's] failure to respond to [the delegate's] concerns regarding the lack of detail in her protection claims ... suggest[ed] that the [plaintiff's] situation [was] not as described in her protection visa application";

(3) "[a]s flagged with the [plaintiff] ..., the [plaintiff's] statement of claims lack[ed] substantiating details", "no further details or supporting documents were provided" and "[t]his raise[d] concerns that her claims [were] not credible"; and

(4) the plaintiff "did not respond to [the delegate's] concern ... about the fact that [the plaintiff] had obtained a new Turkish passport" and "[t]his raise[d] concerns that the [plaintiff's] claims for protection [might] not be genuine".

The delegate said that because she had "not been able to interview" the plaintiff and having considered the information before her (including the plaintiff's limited responses to her requests for further information), she could not be satisfied that the plaintiff's claims were credible and she rejected them "in their entirety". The delegate concluded that she did not accept as credible the plaintiff's "claims that she is a lesbian" and did not accept the plaintiff's "claim that she was subjected to past harm in Lebanon [sic] by the authorities or her family members because she is a lesbian". The reference to Lebanon was obviously an error.

Issues:-

(a) Ground 1: in rejecting the plaintiff's claims to be a lesbian and to have suffered past harm in Turkey, did the delegate reasoned illogically, irrationally or unreasonably?

(b) Ground 2: whether the delegate acted unreasonably in exercising their discretion under s 62 of the Act to refuse to grant the visa without taking any further action to obtain additional information from the Plaintiff which had been sought under Section 56 of the Act,and/or the Plaintiff's views on information which had been sought under Section 57 of the Act?

Ground 2 – unreasonable exercise of s 62 discretion

The logical starting point is ground 2, which concerns the delegate's decision to exercise the discretion under s 62 of the Migration Act to refuse to grant the plaintiff a protection visa without taking any further action to obtain additional information from the plaintiff.

Section 62 of the Migration Act, headed "Failure to receive information does not require action", provides:

"(1) If an applicant for a visa:

(a) is invited to give additional information; and

(b) does not give the information before the time for giving it has passed;

the Minister may make a decision to grant or refuse to grant the visa without taking any action to obtain the additional information.

(2) If an applicant for a visa:

(a) is invited to comment on information; and

(b) does not give the comments before the time for giving them has passed;

the Minister may make a decision to grant or refuse to grant the visa without taking any further action to obtain the applicant's views on the information." (emphasis added)

It may be accepted that the Migration Act does not impose an obligation on a decision-maker to give reasons for exercising the discretion conferred by s 62. Nonetheless, it was common ground that the power must be exercised reasonably.

The principles are well established and may be stated shortly. "Parliament is taken to intend that a statutory power will be exercised reasonably by a decision‑maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker" (emphasis in original). That conclusion will be open where a decision is "so unreasonable that no reasonable person could have arrived at it", although it is by no means limited to such a case. It is concerned with both outcome and process.

In the present case, the critical point is that it was apparent on the face of the email sent by the plaintiff on 20 February 2020 that she did not realise that the Department was offering her an interview in Sydney. Her response to the email offering to reschedule the interview in Sydney was: "i am on the street without money how can i make it to come melbourne, i really in bad situation" (emphasis added).

This also has to be seen in the context of other information on the plaintiff's file which was in evidence before this Court, including the plaintiff's email sent three days earlier, in which she said, among other things: "i am in sydeny without money and home, i have been reaaly bad situation to come back melbourne for case, no body listen to me even government, call me bla bla or whatever or ye ye ye, i am really suffering mentally and phscichly". The Minister submitted that this was "a rational response written in English". That submission cannot be accepted. The information before the delegate indicated that the plaintiff was homeless, had no money, struggled to communicate in English and had been experiencing serious mental health issues requiring hospitalisation.

No one from the Department attempted to correct the plaintiff's misunderstanding as to the location of the interview she was being offered. It is not necessary to decide whether, given the plaintiff's circumstances, someone should have attempted to correct the plaintiff's misunderstanding in Turkish because no attempt was made in English. The email sent on 3 March 2020 stating that the Department might be able to provide support if the plaintiff "continued to experience difficulty" and inviting the plaintiff to contact the Status Resolution Officer did not ameliorate the situation. The plaintiff obviously was experiencing difficulty, and the offer of support did not attempt to inform the plaintiff that she had misunderstood that she was being offered an interview in Sydney. That was the critical issue that needed to be addressed.

The Minister submits that it was not unreasonable for the delegate to exercise the discretion conferred by s 62 because "the plaintiff [was] given multiple opportunities to respond to the delegate's request for information and [did] not respond[] substantively" (emphasis added). The Minister also drew attention to the difficulty the Department had experienced in contacting the plaintiff in the seven months or so leading up to the delegate's decision.

To say that the plaintiff did not respond substantively is to ignore what the plaintiff did communicate, namely, that she was in desperate circumstances and could not go to Melbourne. No reasonable decision-maker could have ignored the plaintiff's misunderstanding, particularly having regard to her circumstances, and proceeded to refuse to grant a visa for reasons that depended on the plaintiff's failure to provide further information and to attend an interview.

It must be accepted that, if a visa applicant is unresponsive, there may come a point in time where it is reasonable for a decision‑maker to exercise the discretion under s 62 of the Migration Act and make a decision to refuse to grant a visa. But no reasonable decision-maker could have decided that that point had been reached when the plaintiff had obviously misunderstood what was being offered to her and no one attempted to correct her misunderstanding.

The Minister's reliance on s 51A of the Migration Act, which provides that Subdiv AB of Div 3 of Pt 2 (which contains s 58, among other provisions) is taken to be "an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with", is misplaced. The complaint which has been upheld is of unreasonableness, not denial of natural justice.

Given that the plaintiff's application must be upheld on the basis of ground 2, it is strictly unnecessary to consider the remaining grounds. It is appropriate, however, to say something about each ground.

Ground 1 – unreasonable finding that claims for protection were not credible

By ground 1, the plaintiff contends that in rejecting her claims to be a lesbian and to have suffered past harm in Turkey, the delegate reasoned illogically, irrationally or unreasonably. The parties' submissions on this ground raise three issues. First, can the formation of a state of satisfaction be impugned on the basis that the process of reasoning engaged in was unreasonable? Second, did the delegate in fact rely entirely, or substantially, on the plaintiff's failure to provide substantive responses and to attend an interview in reaching her credibility findings? Third, assuming the answer to the first two questions is "yes", was it unreasonable for the delegate to rely on the plaintiff's failure to provide substantive responses and to attend an interview?

The first issue arises because of the terms of s 65 of the Migration Act, which provides that the Minister (or her delegate) is to grant a visa if satisfied that, relevantly, the criteria prescribed for the visa are satisfied and is to refuse to grant the visa if not so satisfied. The delegate refused to grant the plaintiff a protection visa because she was not satisfied that the plaintiff met the relevant criteria.

Drawing on the reasons of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS, the Minister submits that the proper test for whether the formation of a state of satisfaction is unreasonable is whether the state of satisfaction reached "is one at which no rational or logical decision maker could arrive on the same evidence". In other words, the process by which the decision‑maker did in fact reach their state of satisfaction is said to be less relevant. In this respect, the Minister distinguished the test for unreasonableness in respect of "an exercise of a power".

The Minister's submissions are rejected. As stated above, unreasonableness is concerned with both outcome and process[9]. Whether what is being reviewed is an exercise of a power or the formation of a state of satisfaction, a finding of unreasonableness is not limited to cases where the outcome is one which no reasonable decision-maker could have reached. As Crennan and Bell JJ relevantly said: "the correct approach is to ask whether it was open to the [decision-maker] to engage in the process of reasoning in which it did engage"[10] and a decision might be said to be illogical or irrational (or, it might be added, unreasonable) "if there is no logical connection between the evidence and the inferences or conclusions drawn". Leaving aside the supposed distinction between the exercise of a power and the formation of a state of satisfaction, it is not in dispute that adverse credibility findings are susceptible to jurisdictional error on the basis of unreasonableness.

The second issue raised is therefore to identify what inferences or conclusions were drawn by the delegate. That is, what is the proper construction of the delegate's reasons? The Minister submitted that the delegate did not rely solely on the plaintiff's failure to provide further information and to attend an interview; rather, the delegate relied on the underlying doubts she had about the plaintiff's claims compounded by the plaintiff's failure to provide further information and to attend an interview.

The difficulty with this argument is that even if the delegate also relied on her underlying doubts in finding that the plaintiff's claims were not credible, it is not, and could not be, suggested that the delegate did not also rely on the plaintiff's failure to provide further information and to attend an interview. And the Minister did not submit that if the delegate relied on the plaintiff's failure to provide further information and to attend an interview, and that was an error, the error was not material.

Whether or not the plaintiff's failure to provide further information and to attend an interview was the only matter relied on by the delegate, the delegate's reasons make it plain that those matters were the critical considerations. The first paragraph of the reasons under the heading "Findings of Fact" describes the plaintiff's failure to "engage with" the delegate's offer to schedule an interview in Sydney, which was said to be "further reason for concern about the credibility of her protection visa claims". The next three paragraphs each start by identifying the plaintiff's failure to respond to a particular concern raised by the delegate and finish with the conclusion that this "raise[d] concerns" about the credibility of the plaintiff's claims. The final paragraph states that given that the delegate was unable to interview the plaintiff and having considered the information before her (including the plaintiff's limited responses to her requests for further information), the delegate could not be satisfied that the plaintiff's protection claims were credible and, therefore, the delegate rejected the plaintiff's claims "in their entirety".

The third issue is whether it was unreasonable for the delegate to rely on the plaintiff's failure to provide further information and to attend an interview as supporting the conclusion that her claims were not credible. The short answer is that it was unreasonable. On the face of the emails sent by the plaintiff on 17 and 20 February 2020, the plaintiff: was homeless; was not fluent in English; was suffering from mental health problems ("i am really suffering mentally"); had no phone and no money; and did not understand that the delegate was offering to reschedule the interview in Sydney.

Yet, the delegate found that the plaintiff's claim to be a lesbian and her claim that she was subjected to harm in Turkey on that account were not credible because the plaintiff had:

(1) failed to respond properly to the delegate's concerns raised in the letters sent on 14 February 2020;

(2) failed to attend her scheduled interview in Melbourne or provide a "reasonable explanation" for why she did not attend; and

(3) failed to "engage" with the offer to reschedule the interview in Sydney.

No reasonable decision-maker could have reasoned in the way that the delegate reasoned. First, it is not correct that the plaintiff "did not engage" with the offer to reschedule the interview in Sydney. She did not understand that an interview in Sydney was being offered (as was plain on the face of the emails) and, as explained above, the delegate did not attempt to correct this misunderstanding.

Second, it was unreasonable for the delegate to find that the plaintiff had failed to provide "a reasonable explanation for her failure to attend" her scheduled interview in Melbourne. The delegate was aware of information indicating that the plaintiff was in Sydney, struggled to communicate in English, was homeless, had no money and was suffering from serious mental health issues.

The delegate's conclusion that the plaintiff's failure to "engage" with the offer to reschedule the interview was a "further reason for concern about the credibility of her protection visa claims" was a combination of the first and second errors. The delegate did not refer to the plaintiff's difficulties understanding and communicating in English, her mental health issues or homelessness. Nor did the delegate acknowledge the fact that the plaintiff misunderstood that she was being offered an interview in Sydney. As explained, all of those matters were evident on the face of the plaintiff's correspondence and other emails on the plaintiff's file.

The delegate proceeded on the false unstated premise that the only explanation for that failure to engage was that there was some doubt about the veracity of the plaintiff's claims. The adverse credibility findings that the delegate arrived at by this flawed process of reasoning were not reasonable.

Extension of time

The Minister resisted the grant of an extension of time, relying on the asserted weakness of the plaintiff's grounds, the plaintiff's failure to invoke her right of merits review and her failure to satisfactorily explain the delay.

An extension of time should be granted. The plaintiff's substantive application has merit. Her delay in making the application to this Court was also satisfactorily explained. When the plaintiff was able to seek merits review, she was suffering from acute mental illness and was restricted in her ability to access her email because public libraries were closed as a result of the pandemic lockdown[19]. None of those matters were challenged by the Minister. The delay is also explained in part by the difficulty of the Legal Aid Commission of New South Wales taking instructions (as a result of the plaintiff being in detention, not being fluent in English and suffering from mental health problems) and the pandemic. Finally, the Minister identifies no prejudice that would result from the grant of an extension of time.

Conclusion:-

A writ of certiorari should issue to quash the impugned decision. As "the duties of the Minister to consider and determine the application remain unfulfilled ... their performance is able to be compelled by a constitutional writ of mandamus", and such a writ should issue.

The orders of the Court are:

1. Pursuant to s 486A(2) of the Migration Act 1958 (Cth), the period within which an application may be made for a remedy to be granted in relation to the decision made by a delegate of the defendant on 17 March 2020, notified to the plaintiff on 18 March 2020, is extended to 8 November 2021.

2. Pursuant to r 4.02 of the High Court Rules 2004 (Cth), the time fixed by rr 25.02.1 and 25.02.2(b) be enlarged in respect of this application.

3. A writ of certiorari issue to quash the decision made by a delegate of the defendant on 17 March 2020, notified to the plaintiff on 18 March 2020, to refuse to grant the plaintiff a protection visa.

4. A writ of mandamus issue directed to the defendant requiring the defendant to determine the plaintiff's application for a protection visa according to law.

5. The application otherwise be dismissed.

6. The defendant pay the plaintiff's costs of and incidental to the application.

Added a post 

Kozarov v Victoria [2022] HCA 12 (13 April 2022)

Intro:-

This appeal arises out of proceedings commenced in the Supreme Court of Victoria for damages for the negligent failure of the respondent to prevent psychiatric injury to the appellant in the course of her employment with the respondent as a solicitor in the Specialist Sexual Offences Unit ("the SSOU") of the Victorian Office of Public Prosecutions ("the OPP").

In February 2012, the appellant was diagnosed with post-traumatic stress disorder ("PTSD") resulting from vicarious trauma which she had suffered until then in the course of her employment. She was later also diagnosed with major depressive disorder which was found to be a corollary of the PTSD.

The trial judge (Jane Dixon J) held the respondent liable to the appellant in negligence and awarded damages in her favour. Her Honour found that the respondent had been placed on notice of a risk to the appellant's mental health by the end of August 2011 ("the notice finding"), such as to require the respondent to take steps by way of reasonable response which included offering her rotation out of the SSOU to work in another section of the OPP. Her Honour also found that, at the end of August 2011, the appellant would have accepted an offer of rotation out of the SSOU to work in another section of the OPP ("the rotation finding"), thereby avoiding the exacerbation of her PTSD that occurred between August 2011 and February 2012.

Upholding the notice finding but rejecting the rotation finding, the Court of Appeal (Beach and Kaye JJA and Macaulay A-JA) allowed the respondent's appeal.

In her appeal by special leave to this Court, the appellant sought to overturn the Court of Appeal's rejection of the rotation finding. For the following reasons, the Court of Appeal did not err in accepting the notice finding, but the Court of Appeal erred in rejecting the rotation finding. Accordingly, the appeal must be allowed.

Facts:-

In June 2009, the appellant joined the SSOU as a recently admitted solicitor, in a "VPS Grade 4" role. The appellant's work in the SSOU routinely involved interaction with survivors of trauma and exposure to their traumatic experiences including by attending court to instruct in sexual assault trials, meeting with child and adult alleged victims of sexual offences and their families, viewing explicit child pornography and preparing child complainants for cross-examination. From time to time, the appellant worked in a more senior "VPS Grade 5" role, in temporary "backfilled" positions within the SSOU.

In 2009 or 2010, the appellant attended a one-day training workshop at the OPP on the topic of "Understanding and working with victims of trauma" ("the Benstead workshop"). The workshop became a forum for intense discussions about the emotional effects of work in the SSOU. On that occasion, the appellant asserted that there was not enough being done to assist SSOU staff, and she gave examples of how her work was affecting her as a mother.

The appellant became increasingly vocal at staff meetings from late 2010 onwards about how work was affecting her daily life, including describing feelings of paranoia about leaving her children with other people, including at activities and with school teachers, her refusal to allow her son to be an altar boy, and dreaming of her children being the complainants in her matters.

By 2011, the appellant was known by the manager of the SSOU, Mr Brown, and the deputy manager of the SSOU, Ms Robinson, to be a dedicated, hard-working, ambitious and loyal employee of the OPP. Mr Brown and Ms Robinson also knew that the appellant had upwards of 25 files, when the desirable file load was no more than 20; that she had been experiencing physical health ailments, including the need to take time off for medical appointments from time to time; and that she was a mother of young children and a sole parent.

Events between April and August 2011

On 18 April 2011, SSOU staff including the appellant signed a memorandum addressed to Mr Brown and Ms Robinson concerning staff wellbeing ("the staff memorandum"). The staff memorandum followed an after-hours meeting in the absence of management at which significant concerns about wellbeing were discussed. The staff memorandum recorded that the SSOU solicitors were experiencing increasing court commitments; that solicitors were working long hours and taking work home on weeknights and on weekends; and that "solicitors ... reportedly experienced a marked increase in the symptoms associated with stress". The memorandum included a lengthy list of stress-related symptoms said to be experienced by SSOU solicitors, as well as a list of "unhealthy behaviour/lifestyle choices" that solicitors reported themselves to have made as a result of the stress-related symptoms.

The trial judge found that the appellant's signature on the staff memorandum "notified the [respondent] of ongoing health and well-being impacts" experienced by SSOU staff, including the appellant]. This finding was supported by expert evidence that the staff memorandum should have alerted the SSOU's managers to the probability that SSOU staff members were suffering from symptoms of PTSD.

Her Honour considered that the staff memorandum provided the context in which subsequent signs of risk attaching to the appellant were to be viewed and assessed. Her Honour found that "the [appellant's] demeanour, presentation and conduct both before and after the memo combined to show an accretion of signs that she was being adversely affected by her work", culminating in "the presentation of a staff member who, by around the end of August 2011, needed active intervention and proper supervision to ensure that she was not damaged by her work".

Events from September 2011

From 29 August 2011 until the end of December 2011, the appellant continued to deal with serious sexual offences in the SSOU and, in November 2011, she accepted a promotion to a permanent VPS Grade 5 role in the SSOU. She took annual leave and long service leave for the whole of January 2012, as had been arranged in October 2011. On 31 January 2012, the appellant sought an extension of her leave from 7 February 2012 (when the appellant had been due to return to work) to 10 February 2012. On 9 February 2012, the appellant requested that she be moved out of the SSOU. Thereafter, there were attempts to return the appellant to work at the OPP in different areas until 20 April 2012. Those attempts were unsuccessful and, consequently, the appellant's employment was terminated.

Issue:-

Was the Respondent liable from its failure to take reasonable measures in response to "evident signs" of the Appellant's work-related PTSD?

Notice finding

In pursuing its Notice of Contention, the respondent did not seek to challenge the practice of this Court not to disturb concurrent findings of fact "in the absence of special reasons such as plain injustice or clear error"[24]. In the result, the respondent failed to establish error or injustice of any kind on the part of the trial judge or the Court of Appeal in making and maintaining the notice finding.

The trial judge found that "viewed prospectively", by the end of August 2011, a reasonable person in the position of the respondent "would have adverted to the evident signs regarding the [appellant] and observed that she was failing to cope with her allocated work and that her mental health was at risk". The signs relevantly included: (1) the appellant's signature to the staff memorandum, which stated staff complaints about health impacts, including psychologically based impacts, caused by the SSOU's work; (2) the appellant's statements at the Benstead workshop, staff meetings and the Carfi session about her hypervigilance and abnormally overprotective parenting practices as a result of her work; (3) the appellant's excessive file load, her case mix, which involved a high proportion of child complainant cases, and her patterns of working late and on weekends and public holidays; (4) the appellant's observable emotional involvement in some cases, such as using a nickname for her "favourite" child complainant; (5) the allocation to the appellant of the Lim matter, a particularly traumatic matter, in the face of her resistance to taking it because she was struggling with her existing case load; (6) the appellant's sudden departure from work on 12 August 2011, during the Lim trial, after an episode of dizziness, and her subsequent time away from work until 29 August 2011; (7) the attempted suicide of one of the child complainants in the Lim case, about which the appellant was informed while she was on leave; (8) the observation of Mr Brown (which he told the appellant was shared by others) that the appellant was not coping with the demands of her work; and (9) the appellant's "highly emotive and agitated reaction" to her disagreement with Mr Brown on 29 August 2011.

Rotation finding

As it was conducting an appeal by way of rehearing, the Court of Appeal was required to conduct a "real review" of the evidence given at first instance and of the trial judge's reasons for judgment to determine whether the trial judge erred in fact or law. The appellant did not dispute that the Court of Appeal was in as good a position as the trial judge to decide on the proper inference to be drawn about the appellant's probable conduct from the available evidence, giving appropriate respect and weight to the conclusion of the trial judge.

There is some ambiguity in the trial judge's reasons as to whether her Honour considered that, in the appellant's case, the only option that would have avoided the exacerbation of her PTSD between August 2011 and February 2012 was rotation out of the SSOU. However, the trial judge ultimately reached the conclusion that work-related screening of the appellant at the end of August 2011 "would have revealed that the [appellant] needed to be rotated out of the SSOU because of the connection between her work and her symptoms at that time". The trial judge found that there was no good reason why the appellant could not have been rotated to another part of the OPP that did not manage sexual offences[34].

The trial judge proceeded on the basis that the appellant's rotation from the SSOU required her cooperation, and the Court of Appeal observed that there was no suggestion that the respondent could have compelled the appellant to move to another unit that did not involve work relating to sex offences. Thus, the appellant was required to prove on the balance of probabilities that, if offered rotation out of the SSOU, she would have accepted it. The trial judge found that the appellant discharged this burden, having regard to the appellant's recognition of her need for professional psychological help in August 2011 and her cooperation with exploring alternative roles at the OPP after 9 February 2012.

The Court of Appeal noted that the appellant did not give evidence that she would have agreed to rotation out of the SSOU at the end of August 2011. Their Honours stated that the circumstances of 9 February 2012 relied upon by the trial judge were very different from the circumstances of late August 2011. Their Honours referred to the appellant's strong reaction to Mr Brown's suggestion that she was not coping and the terms of her second email on 29 August 2011, placing particular reliance on the appellant's statement that she was "passionate about continuing [her] work in the [SSOU]". Their Honours also noted that the appellant was by then also seeking promotion in the SSOU and that, on 9 November 2011, she signed a contract for a permanent position there. On the basis of these matters, "having looked afresh at the evidence, and making due allowance for the advantage of the trial judge", the Court of Appeal formed the view that "it could not be concluded that the [appellant] proved, on the balance of probabilities, that the appropriate exercise of care by the [respondent] would have resulted in the [appellant] accepting a rotation out of the SSOU at any time between the end of August 2011 and February 2012".

The Court of Appeal erred in forming this view. The appellant's cooperative conduct in February 2012, which was with the benefit of insight about the harmful effect of the nature and intensity of her work upon her mental health, while not determinative, was relevant evidence in support of the rotation finding. Also relevant, and not adverted to by the Court of Appeal, was the expert evidence of Professor McFarlane, a psychiatrist, that a "significant majority" of people assessed by him and receiving appropriate advice, appropriately communicated, would accept that advice. The substance of this evidence was that it is more common than not for persons to heed medical advice given to them about the cause of a diagnosed serious illness and the means by which that cause could be either mitigated or removed. This was important evidence in support of the rotation finding.

The Court of Appeal also failed to advert to the inherent likelihood that a reasonable person advised of the risks of serious psychiatric injury might be expected, on the balance of probabilities, to accept advice to avoid those risks. It was inherently likely that the appellant, faced with advice as to the need to rotate out of SSOU in order to avoid an exacerbation of her PTSD, would have acted self-interestedly in accordance with the advice. In this regard, it is significant that the appellant gave extensive evidence at the trial and the trial judge rejected the respondent's attacks upon her credibility, did not accept that she was an unsatisfactory witness and found her evidence to be "generally coherent and credible". The Court of Appeal should have adverted to the real possibility that the appellant's demeanour and credibility may have influenced the trial judge in making the rotation finding].

It is true that there was a body of material that tended against the rotation finding. This material included the appellant's commitment prior to February 2012 to the SSOU's work and the social importance of that work; the commitment of SSOU staff, including the appellant, to specialisation in sexual offence work with the accompanying inevitability of vicarious trauma and the limited opportunities for "time out"; the instances of the appellant's applications for promotion within the SSOU as further indication of her strong desire to do the traumatic work involved; and the appellant's apparent outrage at the possibility that Mr Brown thought that the appellant should no longer be in the SSOU. However, these factors were of relatively little weight in assessing the counterfactual, which involved a diagnosis of serious psychiatric illness and appropriate advice. On the whole of the evidence, the trial judge's rotation finding was the preferable one.

Conclusion:-

The appeal should be allowed with costs. The orders of the Court of Appeal should be set aside. In their place, it should be ordered that the appeal to that Court be dismissed with costs

Added a post 

Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2022] HCA 11 (6 April 2022)

Intro:-

There was no dispute at any stage of this proceeding that the Association owed a duty to take reasonable care to avoid foreseeable risks of personal injury to participants in the campdrafting event, including Ms Tapp. The Association admitted that it owed Ms Tapp a duty of care to organise, manage, and provide the campdrafting event with reasonable care and skill. The Association did not contest the trial judge's finding that "[w]hat was required in taking reasonable care was for an informed decision to be made as to whether it was safe to continue with the competition". But the Association claimed that it had not breached its duty, that any breach had not caused Ms Tapp's injuries, and that Ms Tapp's injuries were the result of the materialisation of an obvious risk. The trial judge and a majority of the Court of Appeal of the Supreme Court of New South Wales accepted those submissions.

This appeal concerns: (i) whether the Association breached its duty of care to Ms Tapp within s 5B of the Civil Liability Act 2002 (NSW); (ii) whether that breach of duty caused Ms Tapp's injuries within s 5D of the Civil Liability Act; and (iii) whether the Association was not liable in negligence to Ms Tapp by reason of s 5L of the Civil Liability Act because her injuries were the "result of the materialisation of an obvious risk of a dangerous recreational activity". For the reasons below, (i) the Association breached its duty of care by failing to stop the event in order to inspect the ground of the arena and to consider its safety when the Association knew of substantially elevated risks of physical injury to the contestants; (ii) that breach of duty caused Ms Tapp's injuries; and (iii) the injuries were not the result of materialisation of an obvious risk. The appeal should be allowed.

Facts:-

Although only 19 years old at the time of her spinal injury, Ms Tapp was an experienced and very able horse rider and campdraft contestant.

The Association's principal witness at trial was Mr Shorten. The trial judge found Mr Shorten to be "a genuine person who was flustered by the processes of cross‑examination, but was doing his best to be truthful and to assist the Court". Mr Shorten's evidence established that a contestant might fall for reasons other than their horse slipping because of the poor condition of the surface. Mr Shorten described the risks of campdrafting as including the horse falling by losing its footing or contacting the hooves of the animal being chased, or the rider losing balance and falling off.

It appears that the Open Campdraft proceeded without incident from the time of Mr Shorten's ride as contestant 17 until the time of contestant 65. At 6.14 pm, contestant 65, Mr Clydsdale, fell from his horse. At 6.22 pm and 6.36 pm, two more contestants, Mr Sadler and Mr Gillis, respectively contestants 70A and 82, fell from their horses. A document entitled "Open Draft Draw" contained the order in which contestants had been drawn to compete in the Open Campdraft, and recorded the number of points they had scored. The document also recorded which contestants had had falls. The falls of Mr Clydsdale, Mr Sadler, and Mr Gillis were described in the Open Draft Draw as "bad falls". It was conceded by Mr Shorten that a bad fall is accepted "in campdrafting circles as a signal that the surface needs attention to prevent another fall", although Mr Shorten's evidence was that, other than Ms Tapp's fall, he only saw the falls of Mr Gillis and Mr Sadler, and that Mr Gillis' fall was a "bad fall", but Mr Sadler's was not.

After the falls of Mr Clydsdale, Mr Sadler, and Mr Gillis, the Open Campdraft was delayed. The delay arose because Mr Shorten was approached by an experienced campdrafter, Mr Stanton, who was listed as contestant 116 in the draw. The trial judge recorded Mr Shorten's evidence of Mr Stanton's first approach to Mr Shorten. On that first approach, Mr Stanton said that the Open Campdraft should be stopped because "the ground [was] getting a bit slippery". Mr Shorten's reply was that this was not fair because "people have already competed and they have their scores and if the ground is better in the morning the people who have already ridden on the ground might not make the final and that's not fair".

Mr Shorten then spoke with Mr Young, the Chair of the MRC and a director of the Association, and Mr Gallagher, who was the competition judge. Mr Young said that "the surface is okay. Competitors need to ride to the condition of the ground". And Mr Gallagher said that he thought that the competition should keep going. Mr Shorten also spoke with two contestants who had fallen from their horses, Mr Gillis and Mr Sadler. Mr Gillis said that he rode too hard and Mr Sadler said that he fell just before the gate. There was no evidence that either contestant was asked about the condition of the ground. And neither contestant said anything about whether the surface of the arena had caused their fall.

At about 6.58 pm, another contestant fell from his horse. That contestant was number 98, Mr Piggot. Mr Piggot's fall was also described in the Open Draft Draw as a "bad fall". Very shortly after Mr Piggot's fall, Mr Shorten was again approached by Mr Stanton. Mr Stanton said, yet again, that something should be done about the event because he thought that the ground was "unsafe". The event was delayed while Mr Shorten and Mr Callinan (the President of the Sports Club, which coordinated and conducted carnivals and rodeos affiliated with the Association) walked around and spoke with Mr Young and another MRC board member, Mr Smith. One or both of Mr Young and Mr Smith said that "the riders should ride to the conditions". And Mr Young said again that he thought that "the arena surface is still alright".

Mr Shorten said that he had considered the condition of the ground and noticed that the surface was not wet but was moist in parts and dust was still flowing up. Mr Shorten gave evidence that he told Mr Gallagher that "we will continue but we will make an announcement that any competitor who wishes to withdraw can do so and they will get their money back". An announcement was then made over the loudspeaker. Mr Shorten's evidence was that he had said to Mr Young and Mr Smith "we will announce that if competitors wanted to scratch they would get their full entry fee back or they could compete at their own risk" (emphasis added), but the trial judge found that the content of the announcement was only an offer of a refund if riders chose not to compete.

In her first statement, Ms Tapp said that, immediately before the fall, "the ground felt heavy and my horse struggled to get a proper stride. My horse could not get her next stride and she went down on her front that is, she fell straight in a direct line and then we both slid onto the ground". In her second statement, Ms Tapp said: "I felt my horse's front legs slide from beneath me and slide toward the right. My horse went down onto her front and both my horse and myself landed on the ground". The evidence from Ms Tapp's sister included a statement that: "I remember the horse looked like its front legs slid from under it and the horse and [Ms Tapp] fell." And Ms Tapp's father gave evidence that, as best he could tell, "the horse and [Ms Tapp] fell because the front legs of the horse slid from beneath it". After Ms Tapp's fall, the competition stopped for the day. The Sports Club's Incident Report records that, the following day, the arena was ploughed for three hours before the competition recommenced.

Sections 5B and 5C

For the purpose of assessing breach of duty, s 5B(1) of the Civil Liability Act provides that "[a] person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions".

Section 5B(2) provides that "[i]n determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm".

Section 5L

Division 5 of Pt 1A of the Civil Liability Act is concerned with "Recreational activities". Within Div 5, s 5L expresses a defence, the onus of which lies on the defendant[119]. Section 5L provides:

"No liability for harm suffered from obvious risks of dangerous recreational activities

(1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

(2) This section applies whether or not the plaintiff was aware of the risk."

The defence in s 5L requires a defendant to prove that: (i) the plaintiff was engaged in a "recreational activity"; (ii) the recreational activity was dangerous in the sense that it involved "a significant risk of physical harm"; (iii) there was a risk of that activity that was obvious; and (iv) the harm was suffered by the plaintiff as a result of the materialisation of that obvious risk. Once these four elements are proved, the defence in s 5L will apply to the extent that the harm suffered by the plaintiff was a result of the materialisation of that obvious risk.

There was no dispute in the Court of Appeal or in this Court that Ms Tapp was engaged in a dangerous recreational activity, namely campdrafting. The issue was whether there was a risk of that activity that was obvious and that materialised. An "obvious risk" is defined by ss 5F and 5K as "a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person", including "risks that are patent or a matter of common knowledge", and can include risks that have "a low probability of occurring" or which are "not prominent, conspicuous or physically observable".

Characterising "risk" at the appropriate level of generality

The proper assessment of the alleged breach of duty depends on "the correct identification of the relevant risk of injury", because it is only then that an assessment can take place of what a reasonable response to that risk would be. The enquiry is concerned with determining what person, thing or set of circumstances gave rise to the potential for the harm for which the plaintiff seeks damages. The characterisation of the relevant risk should not obscure the true source of the potential injury.

The correct approach to characterisation of the risk for the purposes of breach of duty under s 5B of the Civil Liability Act was adopted in Port Macquarie Hastings Council v Mooney. In that case, a pedestrian slipped and fell into a stormwater drain on an unlit, temporary gravel footpath. The characterisation of the risk ignored the manner in which the pedestrian fell, and the particular hazard which precipitated the fall (the stormwater drain). Sackville A‑JA said:-

"The relevant risk of harm created by the construction or completion of the footpath was that in complete darkness a pedestrian might fall and sustain injury by reason of an unexpected hazard on the path itself (such as an unsafe surface or variation in height) or by unwittingly deviating from the path and encountering an unseen hazard (such as loose gravel, a sloping surface or a sudden drop in ground level)."

Section 5C(a) of the Civil Liability Act reflects, and is consistent with, the common law. The effect of this provision is that a defendant cannot avoid liability by characterising a risk at an artificially low level of generality, that is, with too much specificity. As this Court said in Chapman v Hearse, "one thing is certain" and that is that in identifying a risk to which a defendant was required to respond, "it is not necessary for the plaintiff to show that the precise manner in which [their] injuries were sustained was reasonably foreseeable". The Court continued:-

"it would be quite artificial to make responsibility depend upon, or to deny liability by reference to, the capacity of a reasonable [person] to foresee damage of a precise and particular character or upon [their] capacity to foresee the precise events leading to the damage complained of".

Similarly, in Rosenberg v Percival, Gummow J said:-

"A risk is real and foreseeable if it is not far‑fetched or fanciful, even if it is extremely unlikely to occur. The precise and particular character of the injury or the precise sequence of events leading to the injury need not be foreseeable. It is sufficient if the kind or type of injury was foreseeable, even if the extent of the injury was greater than expected. Thus, in Hughes v Lord Advocate [[1963] AC 837], there was liability because injury by fire was foreseeable, even though the explosion that actually occurred was not."

In the context of s 5L, as Bryson JA observed in C G Maloney Pty Ltd v Hutton‑Potts, "[m]uch depends, in the application of provisions dealing with obvious risk, upon the degree of generality or precision with which the risk is stated". Although the identification of the appropriate level of generality will not always be straightforward, there are four significant matters that must guide the reasoning process concerning the selection of the correct level of generality. First, and contrary to some views that have been expressed in the New South Wales Court of Appeal, the "risk" with which s 5L is concerned will usually need to be assessed after a determination that there is prima facie liability for negligence. Secondly, the s 5L risk should be characterised at the same level of generality as the risk is characterised in the course of assessing whether the defendant has breached a duty of care. Thirdly, the generality at which the risk in s 5L is stated should include the same facts as established the risk for the purposes of the breach of duty which caused the harm to the plaintiff, but no more. Fourthly, and consequently, the characterisation of the risk does not need to descend to the precise detail of the mechanism by which an injury was suffered if that detail is unnecessary to establish a breach of duty. Each of these four matters is explained in turn below.

The focus should be upon the same essential circumstances which established the necessity for a reasonable person in the position of the defendant to take reasonable precautions in performance of a duty of care. The risk with which s 5L is concerned is thus the same risk as that with which s 5B is concerned.

Issue:-

Whether-

a) the Association breached its duty of care by failing to stop the event in order to inspect the ground of the arena and to consider its safety when the Association knew of substantially elevated risks of physical injury to the contestants;

b) that breach of duty caused Ms Tapp's injuries; and

c) the injuries were not the result of materialisation of an obvious risk

Consideration:-

The probability of harm: s 5B(2)(a)

The probability of harm falls to be assessed at the time at which a reasonable person in the position of the Association should have taken precautions. That time was shortly before 7 pm on 8 January 2011, being the time before Ms Tapp competed in the Open Campdraft. It is irrelevant that the condition of the ground might have been entirely safe the previous day, or in the morning of 8 January 2011.

In assessing a substantially elevated risk or probability of harm shortly before Ms Tapp competed, it is necessary to identify the knowledge about the nature of the ground of the arena that would be held by a reasonable person in the position of the Association, ascertained by the matters that were known or ought to have been known by the relevant members of the Committee or MRC on behalf of the Association who were responsible for ensuring that the surface of the arena was reasonably safe for the event

The trial judge and the majority of the Court of Appeal made limited reference to this evidence concerning the four falls. After observing that the evidence as to the total number of falls for the whole of the day of 8 January 2011 was unclear, the trial judge referred to Mr Shorten's evidence that he had seen two falls (those of Mr Gillis and Mr Sadler) and that "they were both in the arena when they fell". The trial judge also stated that she was "conscious of the evidence and submission that falls at campdrafting events were rare". But her Honour did not advert to Mr Shorten's acceptance that a "bad fall" is an accepted "signal" that the surface of the arena needs attention. Nor did the majority of the Court of Appeal.

The four falls were accompanied by two warnings given to Mr Shorten by the very experienced contestant, Mr Stanton: the first warning was given after the first three falls and the warning was that the competition should be stopped because "the ground [was] getting a bit slippery". The second warning was given after the fourth fall and was that something should be done about the event because he thought "the ground [was] unsafe".

Nonetheless, the Committee and MRC chose not to stop the event in order to inspect the ground of the arena and to consider its safety. One or more of the Committee or MRC members said that riders needed to ride to the conditions, and Mr Shorten agreed in cross‑examination that the justification in his mind for continuing the event was that "the event had to go on"

Ms Tapp relied on the evidence contained in the Incident Report that it took three hours for the arena to be disc‑ploughed and harrowed on the morning after Ms Tapp's fall and, when the competition commenced thereafter at 8.30 am, there were no further falls.

Precautions that a reasonable person in the position of the Association should have taken

Given the probability of harm, the potential magnitude of injury, the ease with which the event could have been stopped, and the minimal social disutility of disadvantage to contestants who participated in the Open Campdraft on 8 January 2011, the only available conclusion is that the event should have been stopped until members of the Committee or MRC on behalf of the Association inspected the arena and were satisfied that the ground of the arena was reasonably safe in that the risk of injury from falling from a horse that slipped on the ground of the arena was not substantially elevated.

The Association submitted that, although it did not stop the event for the day after Mr Piggot's fall, it did respond by temporarily suspending the event while the ground of the arena was inspected and therefore it did not breach its duty of care. That submission cannot be accepted.

The Association's submission was based upon the reasoning of Payne JA that the campdraft was delayed prior to Ms Tapp's fall "because various people, on behalf of the Association, were inspecting the arena and deciding whether it was safe to continue the event". That conclusion was not open on the evidence. While it is not in doubt that Mr Shorten delayed the Open Campdraft on each of the two occasions when Mr Stanton had questioned the safety of the arena surface, neither the trial judge's findings nor the evidence supported the finding that the arena was inspected at that time or at any time during the Open Campdraft on 8 January 2011. Apart from Ms Tapp's evidence of a delay, the only relevant evidence comprised evidence from Mr Shorten and the Incident Report. That evidence does not support a finding that "various people ... were inspecting the arena". The highest the evidence could be put is that Mr Shorten "considered the condition of the ground" and "noticed that the surface was not wet, it was moist in parts" and "[d]ust was still flowing up". In cross‑examination, Mr Shorten did not give evidence that he had inspected the arena. The relevant evidence was as follows:

"Q: When you agreed with me a minute ago that Mr Stanton was right in identifying the dangerous condition of the ground, you'd actually inspected it?

A: I walked across it, I didn't – I asked for them other fellows opinions.

Q: When Mr Stanton came back and said point blank 'Somebody's going to get hurt out there', did you inspect it again?

A: We went to the judge and asked him to halt the event, we walked across and seen Alan Young and Wayne Smith and spoke to them."

In this Court, the Association also submitted that the duty of care owed by the Association was satisfied by an informed decision that it was safe to continue with the competition. The Association submitted that the organisers made an informed decision that it was safe to continue the competition, on two occasions stopping it, considering Mr Stanton's warnings, inspecting the ground, and consulting with experienced campdrafters including the judge and participants (some of whom had themselves fallen) before unanimously deciding to proceed. On the available evidence, there was no such informed decision. Not only was there no inspection of the ground but, as McCallum JA correctly found, in the conversations that ensued, no one concluded that the surface was safe.

Accordingly, the Association breached its duty of care by failing to stop the competition in order to inspect the ground and to make "an informed decision ... as to whether it was safe to continue with the competition". The Court of Appeal erred in failing to find that the Association had breached its duty of care in this respect.

Whether the risk would have been obvious to a reasonable person in the position of Ms Tapp: s 5L

Difficult issues can sometimes arise concerning which characteristics of a plaintiff or of a defendant are to be attributed to a reasonable person in their position. None of those issues was raised in this case. The only issue was whether, from the perspective of a reasonable person in the position of Ms Tapp, the risk would have been obvious.

There are three reasons which, in combination, preclude any conclusion that the risk of injury as a result of falling from a horse that slipped by reason of substantial deterioration of the surface of the arena beyond the normal deterioration that might be expected would have been obvious to a reasonable person in Ms Tapp's position.

First, unlike the organisers of the competition on the Committee or MRC, Ms Tapp did not have the opportunity to examine the condition of the ground at all during the Open Campdraft, and particularly not in the hour before she competed, during which the other falls occurred. In cross‑examination, Mr Shorten was asked about the opportunity of contestants to "walk the arena, or walk the field in which they're going to be competing". He said that the opportunity was offered to contestants "before the [O]pen [Camp]draft started" and that "[n]o competitor gets a chance before [they] ride[] in a camp to go around the course first".

Secondly, a reasonable person in Ms Tapp's position would not have had any concerns about the condition of the ground from observations of other contestants or information about other contestants. On the day that Ms Tapp had her accident, she had already competed twice that morning, her sister had competed three times, and her father had competed four times (including one occasion shortly before Ms Tapp), all without incident.

The trial judge held that Ms Tapp "did not observe any falls and was unaware that there had been any falls during the [O]pen [Campdraft] event". Indeed, from around 5 pm, when Ms Tapp accepted her father's offer to take his place in the Open Campdraft, until she competed at around 7 pm, Ms Tapp had warmed up her horse, Xena Lena, twice in an area about 200 metres from the arena. When asked in cross‑examination about her awareness that a man had fallen shortly before she competed, Ms Tapp explained that she had been away from the arena and had been unaware of that fall.

Thirdly, as Mr Shorten said, and consistently with Rule 5, decisions concerning the quality of the surface and how the surface is maintained were made by the Committee or MRC. A reasonable person in the position of Ms Tapp, who was preparing herself and her horse to compete in the hour before being called, would have relied upon the Committee or MRC for that assessment. Further, although Ms Tapp was experienced in campdrafting, as a 19‑year‑old she was still a teenager and, as McCallum JA correctly observed, "teenagers are likely to be less attuned to risks that would be obvious to more experienced, settled members of the community". Ms Tapp's age thus reinforces the point that a reasonable person in her position would be unlikely to pause, while waiting for her run in a high‑turnover event, to reflect upon the appearance of the surface of the arena. A reasonable person in her position would, if they turned their mind to the issue at all, likely assume the Committee or MRC had made an appropriate decision about the surface.

During the time before Ms Tapp's event, she became aware that the event was delayed but no announcement was made about the reason for the delay and no one told Ms Tapp about the reason. The trial judge found that "no specific oral warning was given to [Ms Tapp] and no suggestion was made, by announcement or otherwise, that competitors 'rode at their own risk'". All that had been announced was that there was an offer of a refund of the entry fee if riders chose not to compete, but Ms Tapp did not hear the announcement and there was no suggestion that the announcement was loud enough that a reasonable person in her position, while warming up her horse in the separate arena, would have heard it. In any event, a reasonable person in Ms Tapp's position would have known, as she knew, that events were held up for other reasons such as "an injured beast ... coming out of the yard".

Conclusion:-

The appeal should be allowed with costs. The orders of the Court of Appeal of the Supreme Court of New South Wales made on 23 October 2020 should be set aside and, in their place, it should be ordered that:

(a) the appeal be allowed with costs; and

(b) the orders made by the Supreme Court of New South Wales on 4 November 2019 be set aside and, in their place, it be ordered that:

(i) there be verdict and judgment for the plaintiff in the agreed amount of $6,750,000; and

(ii) the defendant pay the plaintiff's costs.

Added a post 

Ruddick v Commonwealth of Australia [2022] HCA 9 (25 March 2022)

Intro:-

In 2021, after a series of amendments over many years to the Commonwealth Electoral Act 1918 (Cth) designed to reduce voter confusion at federal elections, the Commonwealth Parliament enacted items 7, 9, 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth) ("the 2021 Amendments"). In broad terms, those amendments constrain a registered political party from using a name or logo on the election ballot paper if that name or logo has a word in common with the name of a previously registered political party. The purpose of the 2021 Amendments is plain. It is to reduce confusion.

This case, as presented and argued, was particularly concerned with the application of the 2021 Amendments to the Liberal Democratic Party. If applied to the Liberal Democratic Party to preclude the use of its name on the ballot paper for a federal election, they would not prevent the party being registered under an alternative name, so that candidates could be identified on the ballot paper as affiliated with the same party bearing that alternative name. Alternatives conveying a similar view point include the party's previous name, the "Liberty and Democracy Party", or the name which the party has recently sought to register, the "Liberty & Democracy Party". The 2021 Amendments would not prevent the Liberal Democratic Party from campaigning, advertising, or communicating in any way under the name "Liberal Democratic Party". They would not prevent the Liberal Democratic Party from handing out "how to vote" cards with details of candidates endorsed by the Liberal Democratic Party, if it wished to continue to campaign under that name. They would not prevent endorsed candidates of the party from being identified on the ballot paper with the logo and initialism of "LDP".

Facts:-

The law from 1984

Historically, ballot papers for federal elections did not include any party endorsement with the names of candidates. That changed when, in 1983, a scheme was introduced for the registration of political parties which permitted registered parties to have their name (or, later, a registered abbreviation of it), and eventually their party logo, printed on the ballot paper next to the name of a candidate endorsed by the party.

The 1983 amendments permitted registration of a political party only in certain circumstances, which included compliance with provisions designed to avoid confusion of parties by electors. The provisions included a first‑in‑time priority to registered parties and Parliamentary parties which prevented registration of any subsequent party with a name or abbreviation that: (i) "is the name, or is an abbreviation or acronym of the name", of the prior registered party or Parliamentary party; or (ii) "so nearly resembles the name, or an abbreviation or acronym of the name" of the prior registered party or Parliamentary party that it was likely to be confused with or mistaken for the prior registered party or Parliamentary party.

In 2004, further amendments were made to the Commonwealth Electoral Act in order to address continuing confusion. Section 129(1)(da) was introduced to prevent registration of a political party if, in the opinion of the Electoral Commission, the proposed name of the party "is one that a reasonable person would think suggests that a connection or relationship exists between the party and a registered party if that connection or relationship does not in fact exist".

But even with these further amendments, Parliament considered there was still a likelihood of significant confusion. In 2005, the Joint Standing Committee on Electoral Matters observed that "[c]onfusion still arises, however, because parties that registered names prior to the 2004 amendments are still permitted to use those names". The Committee quoted a submission of the Liberal Party that the party name "liberals for forests" is "potentially confusing and can mislead voters into believing that liberals for forests has some connection to the Liberal Party or gives its preferences to the Liberal Party".

The confusion at the 2013 federal election

The confusion provisions failed to prevent significant confusion in voting in 2013. With Mr Leyonhjelm as its lead candidate, the Liberal Democratic Party received 415,901 votes (9.5 per cent of the votes) for the Senate election for New South Wales.

In a radio interview two days after the 2013 federal election, Senator Leyonhjelm said that the Liberal Democratic Party had initially expected a vote of about 2.5 to 3 per cent, which rose to about 4 per cent as a result of "donkey" votes due to the party's first position on the ballot paper. That view is consistent with a careful academic analysis that estimated that the benefit of being placed first on a ballot paper was, on average, a 1 per cent increase in a candidate's vote share. Senator Leyonhjelm referred to the 9.5 per cent of votes received and added that "you can't deny that some people would have ... mistaken us for the Liberals", although he speculated that the confusion might also have been with the Christian Democrats or the Australian Democrats. He accepted that it was possible that confusion could have contributed 75 per cent of the Liberal Democratic Party votes.

In an interim report on the inquiry into the conduct of the 2013 federal election, the Joint Standing Committee on Electoral Matters referred to concerns about "voter confusion", particularly in New South Wales, with "votes going to the Liberal Democratic Party rather than the Liberal/Nationals". The Committee observed that part of the reason may have been the position of the Liberal Democratic Party in the first column on the ballot paper combined with the format of the ballot paper, with "Liberal" as the more prominent part of the name on the line above "Democrats".

In its 2020 report, the Joint Standing Committee on Electoral Matters referred to the combination of the ballot position of the Liberal Democratic Party and the Democratic Labor Party and their use of "Liberal" and "Labor" as affecting the vote by a few percentage points, as voters had been misled. Although it is not possible to identify and then disaggregate all possible factors that might have contributed to the 9.5 per cent vote that the Liberal Democratic Party received, it is an available inference from those facts and matters, together with Mr Ruddick's admissions on the pleadings and in the agreed facts as to confusion in fact caused by the word "Liberal" in the party name, that the confusion caused by the similar name was responsible for a significant part of the increase in that vote.

Further legislative responses to avoid confusion

The Joint Standing Committee on Electoral Matters produced a further report in 2016 concerning the introduction of logos on ballot papers for reasons including assisting voters "to clearly locate their intended vote on the ballot paper". Those suggestions resulted in further amendments to the Commonwealth Electoral Act to permit the use of logos on ballot papers.

In December 2020, the Joint Standing Committee on Electoral Matters published a report on the conduct of the 2019 election. After consideration of the need to distinguish "party name registrations" because "voter choices and election outcomes should not be distorted by duplicative names", the Committee recommended that "section 129 of the Commonwealth Electoral Act 1918 should be amended to permit the Electoral Commissioner to remove a name or a part of a name from an existing or proposed party that replicates a key word or words in the name of another recognised party that was first established at an earlier time". This recommendation was the impetus for the 2021 Amendments.

The 2021 amendments

Parliament responded to the recommendation of the Committee by introducing the 2021 Amendments. The explanatory memorandum to the 2021 Amendments explained that the purpose of the amendments was to avoid confusion and to enhance the informed choice of voters: "[w]here overlap of names causes voters to mistake one party for another, it can distort their choices, in some cases by attracting a voter mistakenly to a party they did not intend to support and in other cases deterring them from supporting a party that they might otherwise give consideration to.

The impugned provisions have two central effects.

First, items 7 and 9 impose an additional requirement for registration of a new party, and hence for a party name (or abbreviated name) and logo to appear with the name of an endorsed candidate on the ballot paper. The additional requirement, contained in ss 129(3), 129(6) and 129A(2), is that the name, abbreviation or logo of an applicant party must not, without the consent of the prior registered political party, contain a word that is in the name, or the abbreviation of the name, of the prior registered political party.

Secondly, by items 11 and 14, introducing ss 134A(1)(a)(iii) and 134A(1A), an existing party cannot remain registered under its name if an earlier registered party objects to the existing party's name or logo and that name or logo contains a word that is in the name, or the abbreviation of the name, of the prior registered political party.

Legitimacy of the purpose of the 2021 amendments

As explained above, the history and sequence of amendments to the Commonwealth Electoral Act has been one of evolving legislative responses to minimise confusion. Each of the reports of the Joint Standing Committee on Electoral Matters identified a need to respond to voter confusion. It was against that background that the 2021 Amendments were enacted. The Assistant Minister began the second reading speech of the Electoral Legislation Amendment (Party Registration Integrity) Bill 2021 (Cth) by identifying that the purpose of the impugned provisions was to "reduce the risk of voter confusion". He added that the Bill "responds to reports of the Joint Standing Committee on Electoral Matters", concluding that "these provisions will enhance the integrity of the electoral process by reducing the likelihood of voters inadvertently associating or confusing political parties with similar‑sounding names".

Mr Ruddick submitted, however, that the purpose of the 2021 Amendments was illegitimate. Parliament cannot enact legislation for a purpose or design that is inconsistent with the Constitution. Mr Ruddick submitted that the purpose of the 2021 Amendments was inconsistent with ss 7 and 24 of the Constitution and the implied freedom of political communication because it was "anti‑competitive" in the sense that, despite references in the extrinsic materials to a purpose of avoiding confusion, the "real mischief" and the "true purpose" of the provisions is to reduce competition between major parties and minor parties. Mr Ruddick pointed to paras 7.41 to 7.44 in the 2020 Joint Standing Committee on Electoral Matters report, which made a number of references to major parties and minor parties.

Mr Ruddick's submission was essentially that the purpose of the 2021 Amendments expressed in the explanatory memorandum and in the second reading speech was a sham. It can be accepted that statements of purpose in an explanatory memorandum or a second reading speech are not conclusive, but it is a significant step to conclude that express statements in such extrinsic materials are a pretence designed to conceal an anti-competitive purpose.

Issue:-

Did the 2021 Amendment have the effect of imparing the quality of electoral choice by the public so as to be incosistent with ss 7 and 24 of the Constitution and the implied freedom of political communication?

Consideration:-

The broader freedom of political communication constraint

In Lange v Australian Broadcasting Corporation, this Court recognised an implied freedom of political communication as a separate and broader restriction upon legislative power. This implied freedom was based not merely upon ss 7 and 24 but also upon the structure of the Constitution and provisions such as ss 64 and 128, each of which "give rise to implications of their own".

Provided that a law has a legitimate purpose, a threshold issue for determining the validity of any law alleged to infringe the implied freedom of political communication is whether the law effectively burdens freedom of communication about government or political matters either in its terms, operation, or effect. Since the implication is "an implication of freedom under the law of an ordered society", any burden upon the freedom of political communication must be measured against the valid, existing laws which form a "constitutionally valid baseline". Proof that the law imposes a burden requires that the existing freedom is curtailed or restricted in some way. In Levy v Victoria, McHugh J made the same point about the measurement of a burden against existing, valid laws, saying that the implied freedom "gives immunity from the operation of laws that inhibit [an existing] right or privilege to communicate political and government matters ... [T]hat right or privilege must exist under the general law."

The same point was reiterated in Brown v Tasmania. In the joint judgment of Kiefel CJ, Bell and Keane JJ, their Honours said that it was "logical to approach the burden which a statute has on the freedom by reference to what [persons] could do were it not for the statute". Nettle J said that the freedom is only a "freedom to communicate by lawful means". Gordon J said that "[t]o the extent that the impugned law is congruent with the existing law, it is any incremental burden that needs justification". And Edelman J said that there can be no burden on the freedom if "the conduct about which legislation is concerned is independently unlawful, so that there was no legal freedom to communicate about government or political matters".

Mr Ruddick did not establish any burden on electoral choice or the freedom of political communication

As explained above, a threshold issue for Mr Ruddick in his submissions concerning constraints on legislative power arising from (i) ss 7 and 24 of the Constitution, and (ii) the implied freedom of political communication was to establish that the 2021 Amendments placed some burden on, respectively, informed electoral choice or the ability to communicate on government or political matters. Both of Mr Ruddick's submissions fail at this threshold stage.

Mr Ruddick effectively asks this Court to infer that the quality of electoral choice, or the freedom of communication on government or political matters, will be impaired due to the inability of a candidate to have, accompanying their name on the ballot paper, the name and logo of a party which includes a word used in another party's name. That conclusion is not self‑evident. Rather, on the material before the Court, the expected conclusion would be the opposite. The likely effect of the narrow restrictions imposed by the 2021 Amendments is, overall, to improve the clarity, and hence the quality, of electoral choice and communication on government or political matters.

The starting point is the impugned provisions of items 11 and 14 of the 2021 Amendments, which introduced ss 134A(1)(a)(iii) and 134A(1A) concerning existing registered political parties with a word in their name or logo that is used in the name or abbreviation of an earlier registered political party which objects to the use of that word. As explained above, the manner in which Mr Ruddick's challenge was made focused upon the application of these provisions to the Liberal Democratic Party.

On the assumption that the 2021 Amendments would operate to require the deregistration of the Liberal Democratic Party under that name, as it was registered after the Liberal Party, Mr Ruddick's submission invites consideration of how that deregistration would impair the quality of electoral choice by the public, or the quality of communication on government or political matters to the public.

Apart from the content of the ballot paper, deregistration of the Liberal Democratic Party would not preclude any communication with the public, including communication using the name "Liberal Democratic Party". The only potential restraint on the quality of electoral choice by the public, or on communication on government or political matters to the public, is that, by s 169 of the Commonwealth Electoral Act, a candidate for election endorsed by the Liberal Democratic Party, such as Mr Ruddick, would be unable to have that party name printed adjacent to their name on the ballot paper. Yet, as the 2013 election demonstrated, that would have the effect of reducing confusion and thus enhancing the quality of electoral choice by the public.

Even if it were accepted that there was some small constraint upon political communication and the quality of electoral choice by the inability of a candidate endorsed by the Liberal Democratic Party to use the word "liberal" on the ballot paper, the net effect would still be an enhancement of electoral choice and the quality of communication on government or political matters to the public. Contrary to Mr Ruddick's submissions, the Liberal Democratic Party would not be precluded, or impaired in any real way, from using its name to communicate any message of political philosophy. As the Commonwealth correctly submitted, items 11 and 14 do not preclude registration of names which use derivatives of the word "Liberal" in its title. The variety of the English language permits many possible derivatives of a word, compounds of the word, or synonyms for the word.

The same point can be made in relation to another political party mentioned in the special case, the "liberals for forests". In 2001, the Administrative Appeals Tribunal held that the "liberals for forests" did not present any "real risk" of being confused with or mistaken for the "Liberal Party of Australia" or the name "Liberal", although the Tribunal accepted that "[i]t may be that some persons will draw the inference that members of 'liberals for forests' are former members or have some affiliation with the Liberal Party of Australia or one of its State divisions". The latter confusion by electors was not held to be sufficient to preclude registration of the "liberals for forests".

Just four years later, in its 2005 report, the Joint Standing Committee on Electoral Matters concluded that confusion between the liberals for forests and the Liberal Party was the reason for the narrow defeat of the National Party candidate for Richmond in the 2004 federal election. The Committee referred to evidence that the "how to vote" card for the liberals for forests replicated the colours and layout of previous Liberal Party "how to vote" cards and emphasised the word "LIBERALS" in capitals, overshadowing "for forests".

The obvious inference to be drawn from the material in the special case is that the absence of the party name "liberals for forests" on the ballot paper would enhance the quality of electoral choice and political communication by reducing the potential for confusion. Conversely, there was no fact in the special case, and no written or oral submission from Mr Ruddick, which would permit any inference that, if the liberals for forests were prevented from using the word "liberal" in their party name on the ballot paper, the quality of choice of even a single elector, or any communication on a government or political matter, would be impaired in any way.

The liberals for forests, in this example, could have continued to operate and campaign under that same name or a similar name and hand out "how to vote" cards with that or a similar name, which explained that liberals for forests would be named on the ballot paper with the chosen alternative, including any derivative word from "liberal".

The implied freedom of political communication was not engaged

Mr Ruddick's case based on the implied freedom of political communication fails for a further reason. His submissions are indistinguishable from the basis upon which five members of this Court in Mulholland v Australian Electoral Commissionupheld the validity of earlier amendments to the registration scheme in the Commonwealth Electoral Act. Mr Ruddick did not seek leave to challenge the correctness of that decision.

Like this case, the appeal in Mulholland concerned Pt XI of the Commonwealth Electoral Act. Mr Mulholland, the registered officer of the Democratic Labor Party, challenged two conditions for a political party to obtain registration and have its name printed on the ballot paper as contrary to the implied freedom of political communication. Those conditions were: (i) the party must have 500 members, and (ii) two or more parties could not count the same person as a member for the purposes of registration. Each of McHugh J, Gummow and Hayne JJ, Callinan J and Heydon J expressly approved the reasoning of McHugh J in Levy v Victoria[198] and held that proof of a burden on the freedom of political communication requires "proof that the challenged law burdens a freedom that exists independently of that law". Mr Mulholland's challenge failed because the Democratic Labor Party had no right to be included on the ballot paper, independently of the provisions of the Commonwealth Electoral Act.

Conclusion:-

The questions of law stated for the consideration of the Full Court in the Special Case filed on 3 December 2021 should be answered as follows:

Question 1. Are any of items 7, 9, 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth) invalid, in whole or in part, on the ground that they infringe the implied freedom of political communication?

Answer: In relation to items 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth), the answer is "No". Otherwise unnecessary to answer.

Question 2. Are any of items 7, 9, 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth) invalid, in whole or in part, on the ground that they preclude the direct choice by the people of Senators and Members of the House of Representatives, contrary to ss 7 and 24 of the Constitution?

Answer: In relation to items 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth), the answer is "No". Otherwise unnecessary to answer.

Question 3. In light of the answers to Questions 1 and 2, what relief, if any, should issue?

Answer: None.

Question 4. Who should pay the costs of and incidental to this special case?

Answer: The plaintiff.

 

Added a post 

Stubbings v Jams 2 Pty Ltd [2022] HCA 6 (16 March 2022)

Intro:-

This is an appeal from the Court of Appeal of the Supreme Court of Victoria.

Facts:-

The appellant owned two houses in Narre Warren, both of which were mortgaged to Commonwealth Bank. The mortgage repayments were between $260 and $280 per week. The appellant did not live in either house; instead he lived at rental premises at Boneo, where he worked repairing boats for the owner of the property. Due to a falling out with the owner, the appellant ceased work and needed to move house. Rather than live at one of the Narre Warren properties, he sought to purchase another property on the Mornington Peninsula.

The appellant was unemployed and had no regular income. He had not filed tax returns in several years and was in arrears on rates payments in respect of the two Narre Warren properties. After a home loan application to ANZ was rejected for lack of financial records, the appellant was introduced to Mr Zourkas.

Mr Zourkas described himself as a "consultant", in the business of introducing potential borrowers to Ajzensztat Jeruzalski & Co ("AJ Lawyers"). AJ Lawyers in turn provided a service to clients, such as the respondents, to facilitate the making of secured loans by those clients. The primary judge found that Mr Zourkas played an "important and essential" role in these transactions, in that his involvement ensured that AJ Lawyers never dealt directly with the borrower or guarantor, such as the appellant.

The appellant and Mr Zourkas met on a number of occasions in 2015. At their first meeting, the appellant said that he "wanted to buy a little house" to live in, to which Mr Zourkas responded that "there would not be a problem going bigger and getting something with land". On the strength of that suggestion, the appellant found a five‑acre property with two houses on it in Fingal, available for $900,000. At another meeting, Mr Zourkas told the appellant that he could borrow a sum sufficient to pay out the existing mortgages over the Narre Warren properties, purchase the Fingal property, and have approximately $53,000 remaining to go towards the first three months' interest on the loan. Mr Zourkas advised the appellant that he could then sell the Narre Warren properties, reducing the loan to approximately $400,000, which the appellant could then refinance with a bank at a lower interest rate.

The two Narre Warren properties and the Fingal property would secure the appellant's obligations as guarantor. The existing debt to Commonwealth Bank secured on the Narre Warren properties totalled approximately $240,000. On the basis that the two properties had a market value of $770,000, the appellant's equity was thus worth about $530,000.

On 30 June 2015, the appellant signed a contract to purchase the Fingal property for $900,000. A deposit of $90,000 became payable on 7 July 2015. The appellant only ever paid $100 towards it.

In late July or early August 2015, Mr Zourkas introduced the appellant to Mr Jeruzalski, a partner at AJ Lawyers. On 10 August 2015, AJ Lawyers arranged to have the two Narre Warren properties and the Fingal property valued as security for the loan. Together, the properties were valued at $1,570,000[16]. Satisfied that this would support a loan, AJ Lawyers provided two letters of offer, on behalf of their clients, including the respondents, to provide first and second mortgage finance to the company. Each offer was conditional on the appellant acting as guarantor and with the three properties as security for his guarantee.

The first mortgage loan was for a sum of $1,059,000 at an interest rate of 10 per cent per annum and a default rate of 17 per cent per annum. The second mortgage loan was for a sum of $133,500 at an interest rate of 18 per cent per annum and a default rate of 25 per cent per annum. Two loans were necessary because, in line with AJ Lawyers' standard practice, the first was capped at two‑thirds of the combined property valuations to avoid a higher loan‑to‑security ratio that might be considered too risky for the lender. The second loan was required to pay Mr Zourkas' consultancy fees, loan procuration fees, the respondents' legal costs as mortgagees, and the costs and expenses of purchasing the Fingal property. It was also necessary to enable the appellant to pay the first month's interest, which was payable in advance.

On 19 September 2015, Mr Zourkas presented the appellant with two letters, dated 16 and 17 September 2015, which indicated that AJ Lawyers had been "instructed to approve" the two loans. The letters enclosed documents for execution by the appellant and the company. This documentation included a certificate of "Independent Financial Advice", to be signed by an accountant, and a certificate of "Independent Legal Advice", to be signed by a lawyer.

The certificates were of critical importance to the decision of the Court of Appeal and were a significant focus of argument in this Court. In the certificate of independent legal advice, under the heading "Acknowledgement by Guarantor", was the following list of questions, which the appellant was to answer by writing in the right‑hand column[:

"1. Have you received copies of the documents described under the heading 'Security Documents' below?

2. Have you been given an opportunity to read those Security Documents?

3. Have the Security Documents been fully explained to you by your solicitor?

4. Do you understand the effects of the Security Documents and the consequences to you if the Borrower defaults on its obligations to the Lender?

5. In particular, do you understand that if the Borrower fails to pay all of the moneys due to the Borrower to the Lender then the Lender will be entitled to call on you as Guarantor to recover the moneys due to it?

6. Was this Acknowledgement read and signed by you BEFORE you signed the Security Documents?

...

I confirm the accuracy of the answers to the above questions and acknowledge that the Lender will be relying on these answers in respect of giving the loan to THE VICTORIAN BOAT CLINIC PTY LTD."

The certificate of independent financial advice, meanwhile, required an independent accountant to sign and attest to the following:-

"1 I have been instructed by THE VICTORIAN BOAT CLINIC PTY LTD ACN 601 712 172 to explain the financial risks being assumed:-

(a) by executing the security documents in respect of the financial accommodation to be provided by the Lender which security documents are referred to in Item 1 of the Schedule below ('the Security');

(b) by the application of the said financial accommodation for the purposes referred to in Item 2 of the Schedule below.


2 Before the Security was executed by the Borrower, I explained the financial risk being assumed by executing the Security and by the application of the aforesaid financial accommodation in the manner stated in Item 2 of the Schedule.

3 To the best of my knowledge and belief and in my opinion the Borrower appears to understand the nature and extent of the financial risk which the Security places and the nature and extent of the financial risk which will be assumed by the application of the aforesaid financial accommodation in the manner stated in Item [2] of the Schedule.

4 I have been engaged by the Borrower in advising and have given this Certificate entirely independently of any other Borrower or Guarantor.

5 The Loan herein is required for business purposes."

The primary judge found that Mr Zourkas had presented the certificates to the appellant by handing over two sealed envelopes (one labelled "Accountant", the other labelled "Solicitor"), a business card for a solicitor, Mr Kiatos, and a phone number for an accountant, Mr Topalides. Mr Zourkas told the appellant to "take these documents, get them signed and bring them back"[26]. The Court of Appeal observed that it was clear from context that approval of the loans was conditional on the two certificates being duly signed and returned.

The appellant visited both Mr Kiatos and Mr Topalides that same day. Mr Kiatos (and not the appellant) completed and signed the certificate of independent legal advice, writing in answers to the list of questions directed to the appellant as guarantor. The appellant signed an acknowledgment on behalf of the company confirming the accuracy of those answers and that he had received independent legal advice.

With the documentation complete, the loans were settled, the mortgages were registered, and the Fingal property was purchased on 30 September 2015. Once the various fees and payments had been made, the appellant was left with a sum of $6,959. The appellant subsequently moved into the Fingal property with his son. He never carried on any boat repair business.

The first month's interest having been paid in advance by the funds received from the second loan, the appellant managed to sell some assets to pay off the second month's interest. However, on 30 December 2015, the company defaulted on the third month's interest payments[36]. The respondents commenced proceedings against the appellant, seeking to enforce the guarantee and their rights as mortgagees of the two Narre Warren properties and the Fingal property.

The primary judge

The primary judge found that the appellant laboured under circumstances of "special disadvantage". His Honour described the appellant's financial position as "bleak". Notably, in this regard, the Narre Warren properties were the appellant's only assets of any value. The primary judge also found that the appellant was "unsophisticated, naïve and had little financial nous". The primary judge observed that the appellant's demeanour at trial – at which he represented himself – indicated that he was "completely lost, totally unsophisticated, incompetent and vulnerable".

The primary judge found that Mr Jeruzalski "[did] not seek or want any further information about the guarantor or his or her personal or financial circumstances". Mr Jeruzalski's attitude in this regard conformed to the standard practice of AJ Lawyers of making no inquiries as to a borrower's capacity to repay the loan, and having no contact with borrowers save for written correspondence and documentation.

The primary judge found that Mr Jeruzalski knew that the loans were "a risky and dangerous undertaking for [the appellant]" because of the high interest rates, the risk to the appellant of the cost of forced sales, and the consequential impact of a default upon the appellant.

The primary judge did not accept that Mr Kiatos and Mr Topalides were truly independent sources of advice for the appellant.

The primary judge concluded that these findings demonstrated a "high level of moral obloquy" and "wilful blindness" as to the appellant's financial and personal circumstances

The Court of Appeal

The Court of Appeal concluded that the primary judge's reasons reflected an adverse view of asset‑based lending "as a concept" and concluded that this adverse view "overwhelmed ... his determination of the unconscionability issue"[50]. The Court of Appeal was not satisfied that Mr Jeruzalski had either actual or constructive knowledge of the appellant's desperate personal and financial circumstances.

Importantly in this regard, the Court of Appeal considered that Mr Jeruzalski was entitled to rely on the certificates of independent advice as showing that the appellant had consulted a solicitor and an accountant, and as to the truth of the matters stated therein. In their Honours' view, the certificates made it reasonable for Mr Jeruzalski to refrain from any further inquiry as to the appellant's circumstances; indeed, their Honours noted that, absent the certificates, there may have been sufficient knowledge on Mr Jeruzalski's part to "justify the serious finding that it was unconscionable for him to abstain from inquiry in all the circumstances". As to the primary judge's finding that the certificates did not reflect truly independent advice, the Court of Appeal held that there was no sufficient basis in the evidence for that inference.

The parties' contentions in this Court

In this Court, the appellant conceded that asset‑based lending is not necessarily unconscionable in itself, and focussed upon the circumstances of the system of asset‑based lending employed by the respondents and AJ Lawyers in this case.

The appellant submitted that the Court of Appeal attributed unwarranted significance to the certificates of independent advice. The appellant argued that the primary judge was entitled to infer that Mr Jeruzalski knew it was unlikely that the appellant had received truly independent advice. More broadly, the appellant argued that the Court of Appeal failed to have due regard to the findings made and inferences drawn by the primary judge as to Mr Jeruzalski's appreciation of the dangers confronting the appellant in taking the loans, particularly since the primary judge had relied on his impressions of the witnesses in making these findings.

The respondents argued that the only significant finding of the primary judge that was disregarded by the Court of Appeal was the finding to the effect that the certificates were not truly independent[59]. It was said that the Court of Appeal was justified in taking this course on the basis that there was no evidence to support the primary judge's inference.

Issues:-

a) Was the system of lending involving a law firm, acting through an intermediary, tainted by unconsciousnable conduct?

b) Whether the Respondents' agent had knowledge of Appellant's special disadvantage?

Consideration:-

Unconscionable conduct

In Kakavas v Crown Melbourne Ltd, this Court said:-

"[E]quitable intervention does not relieve a plaintiff from the consequences of improvident transactions conducted in the ordinary and undistinguished course of a lawful business. A plaintiff who voluntarily engages in risky business has never been able to call upon equitable principles to be redeemed from the coming home of risks inherent in the business. The plaintiff must be able to point to conduct on the part of the defendant, beyond the ordinary conduct of the business, which makes it just to require the defendant to restore the plaintiff to his or her previous position."

In Commercial Bank of Australia Ltd v Amadio, this Court held that unconscionability involves: a relationship that places one party at a "special disadvantage" vis‑à‑vis the other; knowledge of that special disadvantage by the stronger party; and unconscientious exploitation by the stronger party of the weaker party's disadvantage. But these considerations should not be understood as if they were to be addressed separately as if they were separate elements of a cause of action in tort. As Dixon CJ, McTiernan and Kitto JJ said in Jenyns v Public Curator (Qld)[63], in a passage approved by this Court in Kakavas and Thorne v Kennedy, the application of the equitable principles relating to unconscionable conduct:-

"calls for a precise examination of the particular facts, a scrutiny of the exact relations established between the parties and a consideration of the mental capacities, processes and idiosyncrasies of the [vulnerable party]. Such cases do not depend upon legal categories susceptible of clear definition and giving rise to definite issues of fact readily formulated which, when found, automatically determine the validity of the disposition. Indeed no better illustration could be found of Lord Stowell's generalisation concerning the administration of equity: 'A court of law works its way to short issues, and confines its views to them. A court of equity takes a more comprehensive view, and looks to every connected circumstance that ought to influence its determination upon the real justice of the case'." (citation omitted)

Special disadvantage

In this field of discourse, "special disadvantage" means something that "seriously affects the ability of the innocent party to make a judgment as to his [or her] own best interests". While the factors relevant to an assessment of special disadvantage have not been exhaustively listed, Fullagar J in Blomley v Ryan considered that special disadvantage may be inferred from "poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary". No particular factor is decisive, and it is usually a combination of circumstances that establishes an entitlement to equitable relief.

At all times, the appellant was incapable of understanding the risks involved in the transaction. He was unable to perform simple calculations, such as 10 per cent of $130,000. The primary judge observed that the very circumstance that the appellant was disposed to enter into such a transaction was evidence of his vulnerability. To say the least, the appellant's financial circumstances were "bleak".

It could not be, and was not, disputed by the respondents that the primary judge's findings as to the appellant's circumstances established that he was at a special disadvantage vis‑à‑vis the respondents. The outcome of the appeal to this Court turns on the extent of Mr Jeruzalski's knowledge of the appellant's circumstances and whether Mr Jeruzalski exploited that disadvantage so that the respondents' attempt to enforce their rights under the loans and mortgages was unconscionable.

Knowledge and exploitation

The inevitable outcome of the transaction was, objectively speaking, that the appellant's equity in his properties would be taken by the respondents by way of interest payments, including at default interest rates. The dangerous nature of the loans, obvious to Mr Jeruzalski but not to the appellant, was central to the question whether the appellant's special disadvantage had been exploited by the respondents.

The primary judge found that Mr Jeruzalski "should have known" that the appellant was bound to lose his equity in the Narre Warren properties. It may be accepted that his Honour's findings as to Mr Jeruzalski's state of mind did not rise to an unequivocal finding of actual knowledge on the part of Mr Jeruzalski that the appellant would inevitably lose his equity in his properties by taking these loans; but a finding in such terms was not essential to the appellant's case for relief. For a court of equity, the question is whether Mr Jeruzalski's appreciation of the appellant's special disadvantage was such as to amount to an exploitation of that disadvantage.

In Kakavas, this Court approved of the emphasis laid by Mason J in Amadio on the point that:

"the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his [or her] own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party."

A case for relief against an unconscionable attempt to enforce legal rights is established in this case because Mr Jeruzalski had sufficient appreciation of the appellant's vulnerability, and the disaster awaiting him under the mortgages, that his conduct in procuring the execution of the mortgages is justly described as unconscientious.

There can be no doubt that Mr Jeruzalski, on behalf of the respondents, had a lively appreciation of the likelihood that the loss of the appellant's equity in his properties would be suffered by reason of his financial naïveté and his lack of means. The findings of the primary judge pertaining to Mr Jeruzalski's state of knowledge were made after having had the benefit of hearing Mr Jeruzalski in person over several days. The primary judge's findings were "inevitably affected" by his collective impressions of Mr Jeruzalski as a witness and were not "glaringly improbable" or "contrary to compelling inferences". The Court of Appeal had no basis for disregarding those findings. Certainly the certificates were not a basis for doing so.

The certificates contained nothing to suggest that the appellant had actually turned his attention to the difference between the cost of his existing borrowings with Commonwealth Bank and the proposed loans, or to how he would service the proposed loans. The absence of even the most general reference in the certificates as to the existence and terms of the company's business plan or as to how the Fingal property zoning problem (of which Mr Jeruzalski was aware) might be resolved is eloquent of their artificiality.

In addition, given the bland boilerplate language of the certificates and the statement therein of the purpose of the loan (which Mr Jeruzalski must have known to be inaccurate), it is open to draw the inference that the certificates were mere "window dressing". A similar inference may be drawn in relation to the commercially unnecessary interposition of the company as borrower, a step calculated to prevent or impede scrutiny of the fairness of the transaction under the Code. The certificates might also be seen to have been a precautionary artifice designed to prevent an inference that the respondents were wilfully blind to the obvious danger to the appellant. But however one views the certificates, they could not negate Mr Jeruzalski's actual appreciation of the dangerous nature of the loans and the appellant's vulnerability to exploitation by the respondents[78]. Indeed, one might regard the deployment of such artifices in a context where the lender or its agent deliberately distances itself from evidence that must confirm the dangerous nature of the transaction for the borrower or its guarantor as evidence pointing to an exploitative state of mind on the part of the lender.

The primary judge found that Mr Jeruzalski suspected that the appellant did not receive truly independent advice from either Mr Kiatos or Mr Topalides. Mr Jeruzalski's evidence was that, "if [the appellant] or [the company] had no income, then, from his experience, a first‑tier bank would not have lent money to him", and further, that "his firm would not assist somebody like [the appellant] to obtain a bank loan"[80]. There was nothing in the evidence to suggest to Mr Jeruzalski that the appellant had an income that would enable him to refinance with a bank. The circumstances of Mr Jeruzalski's involvement with the appellant meant that what Mr Jeruzalski did know of the appellant's affairs made the prospect of the appellant's refinancing with a bank a forlorn hope.

Mr Jeruzalski, on behalf of the respondents, appreciated that the loans were a dangerous transaction from the appellant's point of view; but the prospect of obtaining the profit to be made by the taking of the appellant's equity by way of interest payments made the exploitation of the appellant's disadvantages good business for the respondents. The transaction in this case cannot be regarded as if it were, for example, a loan to an asset‑rich but income‑poor individual sought for the purposes of meeting a temporary liquidity problem. The transaction could not even be seen as a high‑risk loan to a person willing to gamble on the prospect of a rise in property values. Having regard to the unchallenged findings of fact by the primary judge, it is evident that Mr Jeruzalski, on behalf of the respondents, took the opportunity to exploit the appellant's lack of business acumen and meagre financial resources to deprive him of his equity in the Narre Warren properties.

Conclusion:-

Mr Jeruzalski's conduct on behalf of the respondents amounted to the unconscientious exploitation of the appellant's special disadvantage. The primary judge was right to hold that it was unconscionable for the respondents to insist upon their rights under the mortgages. That being so, it is unnecessary to consider whether the appellant was entitled to succeed pursuant to s 12CB of the ASIC Act.

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Camenzuli v Morrison [2022] NSWCA 51 (5 April 2022)

The Federal Executive of the Liberal Party resolved to exercise a power of intervention under cl 12 of the Party’s Federal Constitution.  The constitution of a party authorises the Federal Executive to intervene in the management of a State Division.  However, the plaintiff submitted that the internal party processes of pre-selection raised justiciable issues.  The Court, in resolving this dispute, applied Cameron v Hogan (1934) 51 CLR 358[1934] HCA 24.

Facts:

The plaintiff, who is a member of the State Council and State Executive of the NSW Division of the Liberal Party of Australia, sought to impugn the validity of steps taken by the Federal Executive which, by resolution of 4 March 2022, established a committee with power to endorse three incumbent Liberal members of the Parliament as Liberal candidates to recontest their seats. 

The plaintiff challenged the validity of the resolution of Sunday, 6 March 2022 exercising the power of pre-selection.  The substantive argument turned on the correct construction of the Party’s Federal Constitution and, in particular, cl 12.3.  The first, second and third defendants (being the members of the committee established by the Federal Executive, the “committee defendants”) contended that the issue raised is purely one of construction of the internal rules regulating the operation of an unincorporated association, albeit a national political party, being a matter held by the High Court in Cameron v Hogan to be non-justiciable.

The plaintiff sought orders appointing persons to represent (a) members of the New South Wales Division of the Party who were not already joined, and (b) members of the Federal Executive who were not already joined.  This was opposed.  Further, although the statement of claim sought only declaratory relief, at the hearing the plaintiff proposed an amendment seeking injunctive relief preventing the registered officer requesting the Electoral Commissioner to print the names of the purportedly endorsed candidates on the ballot papers.  On 30 March 2022, the committee defendants identified a perceived need for the service of notices under s 78B of the Judiciary Act.

On 30 March the Court directed that notices be served on the Attorneys by 2pm that day.  The hearing was delayed from 31 March 2022 to 1 April 2022.  The directions hearing on 30 March 2022 took place whilst the proceedings were listed in the Equity Division.  A member of this Court gave directions.  One involved the removal of the proceedings to the Court of Appeal, a matter which had originally been sought by the parties, but before appropriate grounds could be formulated to support the motion.

The Court had refused an earlier application for removal in a matter involving the same parties and disposed of by Ward CJ in Eq on 25 February 2022.  At the directions hearing on 30 March 2022, the committee defendants submitted that the Court should stay its consideration of the matter until an application by them to remove the matter to the High Court was determined.  The removal application was heard by the High Court on 31 March 2022.  Chief Justice Kiefel ordered that the whole matter before this Court be removed (while noting that the constitutional issue sought to be raised might be described as “tenuous”), but proceeded immediately to remit the matter to this Court.

Issues:

I. Whether or not the party pre-selection process is justiciable.

II. Whether or not statutory provisions create an interest in members allowing the Court to enforce procedures under Party Constitution.

III. Whether or not the power to endorse candidates for election is an exercise of management function.

IV. Whether or not the power to endorse a candidate is subject to Constitution of State Division.

Applicable law:

Associations Incorporation Act 2009 (NSW), s 26 - provides that an association's constitution binds the association and its members to the same extent as if it were a contract between them under which they each agree to observe its provisions.

Civil Procedure Act 2005 (NSW), s 56 - facilitates the just, quick and cheap resolution of the real issues in the proceedings.

Commonwealth Electoral Act 1918 (Cth) s 4 - provides that a “political party” is defined to mean “an organization the object or activity, or one of the objects or activities, of which is the promotion of the election to the Senate or to the House of Representatives of a candidate or candidates endorsed by it”. 

Commonwealth Electoral Act 1918 (Cth) s 123 - provides that an “eligible political party” is a political party that either has a member of Parliament as a member or has at least 1,500 members and is established “on the basis of a written constitution (however described) that sets out the aims of the party”.

Commonwealth Electoral Act 1918 (Cth) s 125 - provides that the register merely contains a list of the names of, and details concerning, registered political parties.

Commonwealth Electoral Act 1918 (Cth) s 141 - provides for a review of such decisions, by way of application to the Administrative Appeals Tribunal. 

Commonwealth Electoral Act 1918 (Cth) s 163 - specifies qualifications of candidates by reference to age, citizenship and entitlement to be an elector. 

Commonwealth Electoral Act 1918 (Cth) s 166 - provides the procedures for nomination. 

Commonwealth Electoral Act 1918 (Cth) s Pt XI - provides for the registration of political parties for the purposes of the Act.

Commonwealth Electoral Act 1918 (Cth) s XIV - deals with nomination of candidates, and states that no person shall be capable of being elected as a Senator or Member of the House unless duly nominated.

Judiciary Act 1903 (Cth), ss 39404478B - provides that where a cause pending in a State court involves a matter arising under the Constitution or involving its interpretation, the court is not to proceed unless and until notice has been given to the Attorneys General of the Commonwealth and of the States specifying the nature of the matter, and the Attorneys have had a reasonable time to consider the question of intervention in the proceedings or removal of the cause to the High Court. 

Uniform Civil Procedure Rules 2005 (NSW), r 36.16 - provides that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. 

Asmar v Albanese [2022] HCASL 71 - provided that the Electoral Acts are important in determining the justiciability question to which we will turn below. But, in our view, they do not assist in determining the question of whether the Branch Rules and, if applicable, the National Constitution empower the National Executive to act as it did. ...”.

Asmar v Albanese [2022] VSCA 19 - where the High Court refused special leave to appeal this decision.

Asmar v Albanese (No 4) [2021] VSC 672 - provided that the Electoral Acts do not seek to regulate the internal affairs of political parties, for example, they do not require the Electoral Commissions to approve amendments to their Constitutions or Rules nor do they prescribe procedures for resolution of disputes between branches and members and between branches and the National Executive. 

Baldwin v Everingham [1993] 1 Qd R 10 - treated the fact that the issue was one of public importance as sufficient to render all questions as to the internal processes justiciable, provides an inadequate basis for distinguishing Cameron v Hogan.

Butler v Mulholland (No 2) [2013] VSC 662Robson J addressed a dispute within the Democratic Labor Party as to who was the secretary of the party and the person responsible for providing details to the electoral officer for registration under the Victorian legislation.

Cameron v Hogan (1934) 51 CLR 358[1934] HCA 24 - binding authority that disputes arising from the application of the rules of an unincorporated political party are not justiciable. 

Edgar and Walker v Meade (1916) 23 CLR 29[1916] HCA 70 - concluded that disputes concerning the rules of a voluntary organization became justiciable when the voluntary association attained (what Dowsett J described as) ‘significance in public affairs’. 

Johnson v The Greens NSW [2019] NSWSC 215 - Robb J noted that s 26 of the Associations Incorporation Act 2009 (NSW) gave contractual force to that political party’s constitution and thus Cameron v Hogan was inapplicable.

LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575[1983] HCA 31 - provides that the Court, in dealing with the Electoral Act, would be dealing with an issue arising under a federal law and would therefore be exercising federal jurisdiction.

Mulholland v Australian Electoral Commission (2004) 220 CLR 181[2004] HCA 41 - noted that the scheme for registration was first introduced in 1983, and later amended in 2000 and 2001. 

Ruddick v Commonwealth of Australia [2022] HCA 9 - explained that the other contextual factor relating to the registration of political parties was the provision of direct funding for political parties. 

Setka v Carroll (2019) 58 VR 657[2019] VSC 571 - involved a challenge to the expulsion of the plaintiff from the Australian Labor Party by resolution of the National Executive. 

Analysis:

Although the Court in Cameron v Hogan made no reference to any electoral legislation, presumptions as to the nature and operation of political parties were probably influenced by that legislative context.  The joint reasons in Cameron v Hogan did not conclude that no issue as to the operation and management of a voluntary association could be the subject of proceedings in a court.   The joint reasons acknowledged that proceedings might be brought to enforce a proprietary interest in property held by a voluntary association and to enforce contractual rights between members (if any).  There might also be an action in tort if members of the association took steps in reliance upon an attempted expulsion from membership which steps were resisted.  

The plaintiff’s basis for distinguishing Cameron v Hogan was the changed statutory scheme for the regulation of political parties.  The issue, however, is not whether the Electoral Act has changed significantly since 1934 (which it clearly has), but whether the changes warrant intervention in a particular case.  The existence of a dispute does not enliven the jurisdiction of the Court to determine the dispute.  There was a dispute in Cameron v Hogan, but the Court did not have power to determine it.

The plaintiff contended that statutory recognition of the process of endorsement gave rise to a right enforceable at the behest of an interested party member, to have the court determine the validity of the internal process by which the endorsement occurred.  Statements that pre-selection disputes have a “close connection” with provisions of the Electoral Act concerning nomination, endorsement and funding fall short of explaining why a dispute between the members of an organisation whose rules lack contractual force may become justiciable.

The public interest in the operation of major political parties does not justify judicial intervention in internal party disputes generally.  The provisions in the current Electoral Act providing for party registration, candidate nomination and endorsement, and public funding do not purport to affect the general internal operations of political parties. 

Conclusion:

The Court ordered to dismiss the statement of claim filed on 15 March 2022 in the Equity Division, removed into this Court by order made on 30 March 2022 and remitted by the High Court of Australia on 31 March 2022. 

 

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Commissioner of Taxation v Carter [2022] HCA 10 (6 April 2022)

The parties are in dispute over a trust deed which provided that, if the trustee made no effective determination to pay, apply, set aside or accumulate any part of trust income in a given accounting period, the income was to be held on trust for specified beneficiaries.

The trustee failed to pay, apply, set aside or accumulate income in the income year.  The Court, in making its final orders, assessed whether present entitlement under s 97(1) is determined immediately prior to end of the income year and whether disclaimers operated retrospectively so as to disapply s 97(1) in respect of income year.

Facts:

This appeal concerns Div 6 of Pt III of the Income Tax Assessment Act 1936 (Cth) ("the 1936 Act"), headed "Trust income" which states: "Except as provided in this Act, a trustee shall not be liable as trustee to pay income tax upon the income of the trust estate".  

The Whitby Trust was settled on 27 July 2005.  Mr Allen Bruce Caratti and his daughter Alisha were joint Guardians.  The power to appoint income was contained in cl 3.1 of the Trust Deed for the Whitby Trust.

Clause 3.7 of the Trust Deed then provided for the default distribution of income if the Trustee failed to make a determination under cl 3.1.  No income remained with the Trustee.  Clause 3.7 operated "immediately prior to the end of the last day of [the] Accounting Period" and distributed all of the income of the Whitby Trust successively to the persons identified in cll 4.1 to 4.5.  

The Trustee having failed to appoint or accumulate the income of the Whitby Trust in the 2014 income year, the income of the Trust was distributed to the Primary Beneficiaries of the Trust, who were Mr Caratti's children – Natalie, Alisha, Nicole, Christina and Benjamin.  

One‑fifth of the income of the Trust was distributed to each of Mr Caratti's children.  Thus, the combined operation of cll 3.1, 3.7 and 4.2 was such that "immediately prior to the end of the last day" of the 2014 income year, one‑fifth of the income of the Whitby Trust was held on trust for each of Mr Caratti's children.

On 27 October 2015, the Commissioner of Taxation ("the Commissioner") issued an amended assessment to each respondent for the 2014 income year which included as assessable income one‑fifth of the income of the Whitby Trust on the basis that the respondents were "presently entitled" to that income within the meaning of s 97(1) ("the 2014 Assessments").  On 3 and 4 November 2015, the respondents executed deeds of disclaimer in respect of their default distributions under cl 3.7 for the 2014 income year. 

On 30 September 2016, the respondents executed further disclaimers ("the Third Disclaimers") disclaiming any and all right title and interest conferred by the Trust Deed to any income and, without limiting the generality of that disclaimer, disclaiming any and all right title and interest conferred by cl 3.7 of the Trust Deed.  

The respondents objected to the 2014 Assessments, contending, among other grounds, that each had validly disclaimed the relevant cl 3.7 distribution by the Third Disclaimers.  

The Administrative Appeals Tribunal held that the Third Disclaimers were ineffective because they were made after the respondents, with knowledge, had failed to disclaim and had accepted the gifts.  The Full Court of the Federal Court held that the Third Disclaimers were effective and dismissed the Commissioner's notice of contention.  

The Full Court held that there was nothing in s 97(1) of the 1936 Act to indicate that a beneficiary's liability was to be determined once and for all at the end of the income year by reference to the legal relationships then in existence.  The Commissioner appealed to this Court on the sole ground that the Full Court erred in finding that the Third Disclaimers operated retrospectively so as to disapply s 97(1) in respect of the 2014 income year. 

Issue:

Whether or not disclaimers operated retrospectively so as to disapply s 97(1) in respect of income year.

Applicable law:

Income Tax Assessment Act 1936 (Cth) ss 95A96 - reflects that, in Div 6, the basic income tax treatment of the net income of a trust estate is to assess the beneficiaries on a share of the net income of the trust estate based on their present entitlement to a share of the income of the trust estate. 

Income Tax Assessment Act 1936 (Cth) s 97 - provides that subject to Division 6D, where a beneficiary of a trust estate who is not under any legal disability is presently entitled to a share of the income of the trust estate:

(a) the assessable income of the beneficiary shall include:
(i) so much of that share of the net income of the trust estate as is attributable to a period when the beneficiary was a resident; and

(ii) so much of that share of the net income of the trust estate is attributable to a period when the beneficiary was not a resident and is also attributable to sources in Australia ..." 

Union‑Fidelity Trustee Co of Australia Ltd v Federal Commissioner of Taxation [1969] HCA 36 makes clear that a present entitlement of a beneficiary under s 97(1) does not depend upon receipt of the income. 

Harmer v Federal Commissioner of Taxation (1991) 173 CLR 264  - provides that a beneficiary is presently entitled to a share of the income of a trust estate "if, but only if: (a) the beneficiary has an interest in the income which is both vested in interest and vested in possession; and (b) the beneficiary has a present legal right to demand and receive payment of the income, whether or not the precise entitlement can be ascertained before the end of the relevant year of income and whether or not the trustee has the funds available for immediate payment.

Dwight v Commissioner of Taxation [1992] FCA 178 - provides that the phrase "is presently entitled to a share of the income of the trust estate" in s 97(1) is directed to the position existing immediately before the end of the income year for the stated purpose of identifying the beneficiaries who are to be assessed with the income of the trust – namely, those beneficiaries of the trust who, as well as having an interest in the income of the trust which is vested both in interest and in possession.

Federal Commissioner of Taxation v Whiting [1943] HCA 45 - provides that the criterion for liability looks to the right to receive an amount of distributable income, not the receipt.

Union‑Fidelity Trustee Co of Australia Ltd v Federal Commissioner of Taxation [1969] HCA 36 - makes clear that a present entitlement of a beneficiary under s 97(1) does not depend upon receipt of the income. 

Matthews v Matthews [1913] HCA 49 - provides that the presumption of assent – that when there is a transfer of property to a person, the donee assents even before they know of the transfer – is a "strong presumption of law".

Hill v Wilson [1873] UKLawRpCh 70 - provides that a gift "requires the assent of both minds".

Federal Commissioner of Taxation v Cornell [1946] HCA 32 - provides that the subject matter of a gift can vest in a donee before the donee actually assents.

Mansell v Mansell [1732] EngR 187 - provides that trusts can be validly declared for charitable purposes or in favour of unborn persons.

Mirzikinian v Tom & Bill Waterhouse Pty Ltd [2009] NSWCA 296 - where the irrelevance of the assent of a beneficiary to the formation of a perfect trust was the subject of the decision.

Analysis:

The respondents' contention that the phrase "is presently entitled" should be construed to mean "really is" presently entitled (emphasis added) for that income year, such that, for "a reasonable period" after the end of the income year, later events could subsequently disentitle a beneficiary who was presently entitled immediately before the end of the income year, is contrary to the text of s 97(1) and the object and purpose of Div 6 identified above.  

It would give rise to uncertainty in the identification of the beneficiaries presently entitled to a share of the income of a trust estate and the subsequent assessment of those beneficiaries.   The uncertainties that would arise, and which would apply with equal force to the Commissioner, trustees, beneficiaries and perhaps even settlers, would also not be fair, convenient or efficient.  

The submissions of the parties concerning the operation of the Third Disclaimers, including the references in those submissions to "presumptions" and "assent", cannot be addressed without dealing with an error in an assumption of the parties about the operation of disclaimers in equity.   

The parties assumed that the validity of the creation of the separate trust, or (if the separate trust already existed) the validity of the increase in the value of the subject matter of any existing trust for the Primary Beneficiaries, depended upon a "presumption", in each case, that the Primary Beneficiaries had assented to that creation or increase.  The assumption that there is a "presumption" of assent in such circumstances was thought to be supported by the notion that a disclaimer operates to rebut a "presumption" of assent.  The assent of a beneficiary is irrelevant to the creation of equitable rights by an unconditional declaration of trust. 

Conclusion:

The appeal is allowed.  The Court sets aside orders 1 and 2 made by the Full Court of the Federal Court of Australia on 10 September 2020 and, in their place, orders that the appeal be dismissed.

 

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Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2022] HCA 11 (6 April 2022)

The appellant was competing in a campdraft competition where the appellant's horse slipped and fell causing serious injury to appellant.  It was contended that the respondent breached duty of care.  The Court, in adjudicating this dispute, assessed whether breach of duty of care caused appellant's injuries.

Facts:

On 8 January 2011, the appellant ("Ms Tapp") was injured while competing in a campdrafting event organised by the respondent, the Australian Bushmen's Campdraft & Rodeo Association Ltd ("the Association").  Ms Tapp's horse slipped, causing Ms Tapp to fall and suffer a serious spinal injury.  Ms Tapp brought an action in negligence for damages against the Association.  Ms Tapp's claim was dismissed by the primary judge (Lonergan J) and was upheld by a majority of the New South Wales Court of Appeal (Basten and Payne JJA, McCallum JA dissenting).

It was Ms Tapp's case that her horse fell because of deterioration in the surface of the arena leading up to her ride.  Ms Tapp alleged that the Association, by allowing the event to continue in these circumstances, breached its duty to Ms Tapp to take reasonable care for her safety.  The Association admitted that it owed Ms Tapp a duty of care to organise, manage and provide the campdrafting event with reasonable care and skill, but it denied that it had breached that duty.  The Association's Rule Book contains a reference to the surface being ploughed, in the context of a general requirement that the arena surface be safe. 

An incident report prepared by the Ellerston District Sports Club and dated 12 January 2011 ("the Incident Report") noted that the surface had been "renovated" at 7 am and 6 pm on Friday, 7 January 2011.  Mr Shorten, the Secretary of the Ellerston District Sports Club, in his evidence, stated that on the Friday evening, although he had not received any complaints and was not aware of any problems with the surface of the arena, he and several other organising members had decided to renovate the arena "just to keep it nice and soft and competitive".  There was evidence that, besides Mr Shorten, several other riders fell off their horses on Saturday, 8 January 2011. 

Prior to Ms Tapp's incident, two complaints were made by Mr Stanton, a competitor, about the surface of the arena.  On two occasions, competition was suspended while the members of the Association responsible for the conduct of the competition considered Mr Stanton's suggestion that the event be cancelled.  While Mr Stanton urged that course because the "ground [was] unsafe", that view was not shared by other participants who were in a position to make a responsible judgment.  To the contrary, the prevailing view was that competitors should "ride to the conditions".  Mr Shorten, Mr Young and Mr Smith agreed that an announcement would be made over the loudspeaker that any competitors who wished to withdraw from the event could do so and receive a full refund.

Issues:

I. Whether or not the respondent breached duty of care.

II. Whether or not the breach of duty of care caused appellant's injuries.

III. Whether or not the harm suffered by appellant is a result of materialisation of obvious risk of dangerous recreational activity.

Applicable law:

Civil Liability Act 2002 (NSW) s 5B - provides that a person is not negligent in failing to take precautions against a risk of harm unless--

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

Civil Liability Act 2002 (NSW) s 5D - provides that a determination that negligence caused particular harm comprises the following elements--

(a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation" ), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability" ).

Civil Liability Act 2002 (NSW) s 5L - provides that a person ("the defendant" ) is not liable in negligence for harm suffered by another person ("the plaintiff" ) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2020] NSWCA 263  - where it was observed that "there is no doubt that it was established that immediately prior to [Ms Tapp's] horse falling its legs slid. What was left unproven was the reason for that slide."

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at 440 [43] - where the Court has recognised that the Act does not apply a test of "common sense". 

Betts v Whittingslowe [1945] HCA 31; (1945) 71 CLR 637 at 649 - where Dixon J found that the defendant's breach of duty, coupled with the occurrence of an accident of the kind that might thereby be caused, was enough to justify an inference that the breach caused the accident. 

Robinson Helicopter Co Inc v McDermott [2016] HCA 22 - relied upon in holding that the Court of Appeal had no sufficient basis for setting aside the findings of the primary judge.

New South Wales v Fahy [2007] HCA 20 - focused on how the particular injury happened may be misleading in attempting to determine issues of duty and its breach. 

Jones v Bartlett (2000) 205 CLR 166 - relied upon in holding that judgments of this Court is posed by hindsight reasoning – the failure to take account of the context in which a risk was to be evaluated at the time the evaluation was made. 

Fox v Percy [2003] HCA 22 - held that the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'.

Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637 - provides that 'natural limitations' that exist in the case of any appellate court proceeding include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share.

Travel Compensation Fund v Tambree [2005] HCA 69 - provides that "it is doubtful whether there is any 'common sense' notion of causation which can provide a useful, still less universal, legal norm".

Fallas v Mourlas [2006] NSWCA 32 - provides that division 5 of Pt 1A of the Civil Liability Act is concerned with "Recreational activities".  Within Div 5, s 5L expresses a defence, the onus of which lies on the defendant. 

Perisher Blue Pty Ltd v Nair‑Smith [2015] NSWCA 90 - provides that the enquiry is concerned with determining what person, thing or set of circumstances gave rise to the potential for the harm for which the plaintiff seeks damages.

Analysis:

Mr Gallagher was a judge of the campdrafting event and Mr Callinan was the President of the Ellerston District Sports Club.  Neither Mr Gillis nor Mr Sadler suggested that the state of the surface of the arena had anything to do with their falls.  It may also be noted that there was evidence that Mr Young himself competed again on the arena surface after these discussions and immediately before Ms Tapp's injury.  The primary judge concluded that the Association was not liable for Ms Tapp's injuries on the basis that her injuries were the materialisation of an obvious risk of a dangerous recreational activity.  

In the Court of Appeal, his Honour concluded that Ms Tapp could not demonstrate that her horse fell because of deterioration in the surface of the arena, as distinct from some other cause.  However, McCallum JA held that the primary judge ought to have found that the Association breached its duty by failing to suspend the competition at the very latest when the announcement was made, but probably earlier.  At trial, Ms Tapp had sought to establish specific reasons for inferring that the surface of the arena had deteriorated to the point where it was unsafe, and this attempt failed.  The failure of an attempt to establish by expert evidence specific identified defects in the surface of the arena does not negate, as a matter of strict logic, the possibility that there was some other, unidentified defect in the surface of the arena that contributed to Ms Tapp's fall.

The risk of a horse slipping as a result of losing its footing during a manoeuvre performed at speed is part and parcel of competitive campdrafting on even the most benign of surfaces.  The information available to the Association at the time the competition was suspended included statements from Mr Shorten and Mr Gillis, each of whom blamed his own management of his horse for his fall.  None of the information on which the Association's decision‑makers acted suggested that deterioration in the surface was the cause of those falls. 

Conclusion:

The appeal is allowed with costs.  The Court sets aside the orders made by the Court of Appeal of the Supreme Court of New South Wales on 23 October 2020 and, in their place, order that:

 

(a) the appeal be allowed with costs; and

 

(b) the orders made by the Supreme Court of New South Wales on 4 November 2019 be set aside and, in their place, it be ordered that:

 

(i) there be verdict and judgment for the plaintiff in the agreed amount of $6,750,000; and

 

(ii) the defendant pays the plaintiff's costs.
Added a post 

Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41 (17 March 2022)

Intro:-

The appellant, Weijiang Chen, appeals from orders of a judge of the Federal Circuit Court of Australia (as it was then known) made on 21 July 2021. The primary judge dismissed an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal) made on 17 October 2019, which affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), made on 17 April 2019 to refuse to grant the appellant a subclass 485 temporary graduate (post-study work) visa (the visa) pursuant to the Migration Act 1958 (Cth) (the Act) and the Migration Regulations 1994 (Cth) (the Regulations).

Facts:-

In July 2014 the appellant, a citizen of China, arrived in Australia as the holder of a student visa.

The conviction(s)

In 2015, following an incident with his ex-girlfriend, the appellant was charged with common assault and stalking. A National Police Certificate dated 20 December 2018, produced by the criminal records section of the Australian Federal Police (AFP), records the following “court results” in relation to the appellant. It states that on 11 March 2015 at Downing Centre Local Court, the appellant was:

(a) fined $880 for the offence “Common Assault (Domestic Violence)”; and

(b) convicted and sentenced to a bond to be of good behaviour for 12 months for the offence “Stalk/Intimidate Intend Fear Physical Harm (Domestic)”.

The 2016, 2017 and 2018 student visa applications

The appellant’s unchallenged evidence is that his visa applications in 2016 and 2017 were prepared by a migration agent and then signed by him. He said that he told the migration agent about the fine and the bond imposed in 2015 and he was advised by the migration agent that there was no requirement to disclose that in the visa applications. Those applications did not disclose that he had any conviction(s).

In respect of the appellant’s 2018 student visa application, which he made on 26 February 2018, the appellant’s evidence is that to save money he completed the visa application himself and he copied the responses across from the applications previously made on his behalf by his former migration agent. The 2018 application is not in the materials before the Court but the delegate’s decision states that the appellant made the following declarations on the application form:-

Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?

No

...

The applicants declare that they: Have read and understood the information provided to them in this application.

Yes

Have provided complete and correct information in every detail on this form, and on any attachments to it.

Yes

Understand that if any fraudulent documents or false or misleading information has been provided with this application, or if any of the applicants fail to satisfy the Minister of their identity, the application may be refused and the applicant(s), and any members of their family unit, may become unable to be granted a visa for a specified period of time.

Yes

The appellant was granted a student visa on 9 April 2018, which applied until 31 January 2019.

The 2019 visa application

Having completed his academic studies the appellant wished to obtain employment in Australia. He engaged a migration agent, MEK Consultancy (MEK) of Suite 402, Level 4, 167 Queen Street, Melbourne to assist him with obtaining the appropriate visa. The National Police Certificate dated 20 December 2018 is addressed to MEK and it is appropriate to infer that MEK applied to the AFP for it.

On 15 January 2019 the appellant applied for a subclass 485 visa. In response to a question on the visa application as to whether he had ever been convicted of an offence in any country, the appellant answered “Yes” and added the following detail: “bond to 12 months good behaviour”.

On 18 March 2019 the Department of Home Affairs wrote to the appellant outlining its view that he had provided false or misleading information in his 2018 visa application. The Department invited him to comment on the information which was suspected to be false or misleading, and to specify if there were any relevant compassionate or compelling circumstances under the Regulations to justify the grant of the visa.

The suspected false or misleading information in the 2018 visa application was that the appellant had declared that he had not been convicted of an offence in any country, and yet the National Police Certificate attached to the 2019 visa application “show[ed] two convictions dated 11 March 2015”. On that basis the Department suspected that the appellant had failed to declare his convictions in the 2018 visa application, and thus did not satisfy PIC 4020(1)(b).

On 10 April 2019 the appellant responded to the Department by letter and said:-

- After reading your letter, I realised that I had made an honest mistake when I applied for a student visa in 2018, but I did not intentionally conceal any information.

- When I supplied the required documents, I did not realise that the offence I had committed was considered a conviction. I thought that conviction meant going to prison, and I was just fined and given a 12 month good behaviour bond.

- I have read [PIC] 4020 and understand the serious consequences of concealing or providing false information, but I was absolutely not trying to provide any false information. My student applications in 2016 and 2017 were made by my previous agent and at that time, I talked with them about my court case in 2015 and they said it would not affect the application. Therefore, when I made the student application in 2018, I followed the previous applications and did not understand the real meaning of the wording when I ticked the box: “no conviction”. I had no intention of misleading the Department - I just misunderstood.

- The legal case in question occurred in 2015 and was a result of my own immaturity regarding romantic relationships. I had never been in a relationship before. Should it be required, I would be happy to explain the circumstances surrounding this regrettable incident and how I have learned from it. I am totally remorseful and am ashamed of my actions and it does not in any way reflect the person that I am today.

- I have attached some character references for your information to testify to my true character. I hope you can accept my explanation and feel able to process my application successfully.

The delegate’s decision

On 17 April 2019 the delegate decided to refuse the visa on the basis that the appellant did not satisfy PIC 4020 and therefore did not meet cl 485.216(3) of the Regulations. Clause 485.216 relevantly provides that the visa applicant must satisfy PIC 4020.

The delegate concluded that there was evidence before the Minister that the appellant had provided or caused to be provided false or misleading information in his 2018 student visa application, which visa the appellant was granted and held in the 12 months before he made the 2019 visa application, by stating that he had not been convicted of an offence in any country.

The delegate concluded that there was evidence before the Minister that the appellant had provided or caused to be provided false or misleading information in his 2018 student visa application, which visa the appellant was granted and held in the 12 months before he made the 2019 visa application, by stating that he had not been convicted of an offence in any country.

The Tribunal

On 2 May 2019 the appellant applied to the Tribunal for review of the delegate’s decision.

The Tribunal heard the application on 17 October 2019 and the appellant gave evidence and made submissions, assisted by a migration agent. The appellant sought to give his evidence through a Mandarin interpreter, but the Tribunal limited the use of the interpreter. The hearing took only about 35 minutes and at its conclusion the member affirmed the delegate’s decision and gave ex tempore reasons. On 31 October 2019 the Tribunal delivered written reasons.

The Tribunal found that the appellant provided false or misleading information in a material particular in his 2018 visa application. The false or misleading information was his declaration that he had not been convicted of any offence in any country when, in fact, he had been convicted in March 2015 of common assault and stalking (at [14]-[15]).

The Tribunal considered the appellant’s explanation for why he provided the false or misleading information; specifically, that he did not realise that he was “convicted” of any offence in March 2015, and he had no intention of misleading the Department. The Tribunal also said that the appellant made some “unusual claims” including that the appellant did not believe that in China he would receive the same penalty for his offending conduct, and the matter would instead have been sent to mediation, and that “[o]ne of the reasons for the [different] outcomes is cultural differences between Australia and China” (at [16]). The Tribunal expressed concern that the appellant sought to downplay the importance of his offending conduct, and said that it believed that his embarrassment about that conduct is one of the reasons why he did not declare any convictions in the 2018 visa application (at [17]).

The application to the Federal Circuit Court

27 On 20 November 2019 the appellant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court. On 25 March 2021 the appellant filed a Further Amended Application for Review which contained the following two grounds:-

1. A reasonable bystander might apprehend - from the Tribunal’s frequent interruptions, apparent closed mind to the evidence, scornfullness, exaggeration, observation that the applicant’s evidence was “unusual”, refusal to allow the applicant to use an interpreter, and failure to consider evidence favourable to the applicant that was before it - that the Tribunal might not have brought an open mind to its task.

2. The decision was irrational, unreasonable or [un]intelligible in that no reasonable decision-maker could have proceeded on the premise that the applicant had been convicted twice or that he had been convicted of common assault.
28 The appellant submitted that there were various indications from the manner in which the Tribunal member conducted the hearing that might result in a fair-minded lay observer reasonably apprehending that the member might not have brought an impartial mind to the review application. He contended that the indications were in the form of the member’s issue with the use of an interpreter; the regular interruptions of the appellant when he was giving evidence; the suggestion that the appellant was “playing a game” with the Tribunal in relation to his English language proficiency; the criticism of the appellant about his asserted late appointment of a migration agent; the use of an intimidating, loud and/or rude, and incredulous or belittling tone; the member’s disinterest in the appellant’s evidence and any evidence favourable to the appellant; the description of the appellant’s claims as “unusual”; and the exaggeration of the appellant’s 2015 offending conduct. The parties relied upon a table setting out particulars of the appellant’s allegations of conduct said to give rise to apprehended bias and the Minister’s responses to those allegations.

Issue:-

1. Whether the Court below erred by not concluding that the Tribunal’s decision was affected by apprehended bias.

Consideration:-

The applicable principles

There is no dispute between the parties as to the applicable principles in relation to this ground. The appellant submits that the primary judge erred in applying the test for a reasonable apprehension of bias. He contends that when the conduct of and the language used by the Tribunal member is considered as a whole and in context the Court ought to have concluded that the Tribunal’s decision was affected by apprehended bias.

Apprehended bias, if found, is an aspect of a denial of procedural fairness. A denial of procedural fairness on the part of an administrative decision-maker, such as the Tribunal, may result in jurisdictional error justifying an order that a decision be set aside: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [17] (Gaudron and Gummow JJ) and [169]-[170] (Hayne J).

The test for apprehended bias is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Tribunal member might not bring a fair, impartial and independent mind to the determination of the matter on its merits: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] (Allsop CJ, Kenny and Griffiths JJ) citing R v Watson; Ex parte Armstrong [1976] HCA 39; 136 CLR 248; Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288; Ebner; Concrete Pty Limited v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577 and British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; 242 CLR 283.

In ALA15 at [36] the Full Court explained that:-

...at least the following two steps are involved in a case involving an allegation of apprehended bias:

(i) there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and

(ii) there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ);

The rule in relation to apprehended bias applies both in the context of curial and non-curial decision-making. When applied outside the judicial system, the rule “must take account of the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings”; and “regard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject matter with which the decision is concerned”: Refugee Review Tribunal, Re: Ex parte H [2001] HCA 28; 179 ALR 425 at [5] (Gleeson CJ, Gaudron and Gummow JJ).

One must therefore take account of the fact that the Tribunal’s role is inquisitorial and that the Tribunal:

...must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.

: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 at [19] (Allsop J (as his Honour then was) with whom Moore and Tamberlin JJ agreed).
39 In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507, Hayne J (with whom Gleeson CJ and Gummow J agreed) explained that:-

(a) the rules in relation to bias through prejudgment are different in administrative decision-making as compared to judicial decision-making: at [180];

(b) specialised administrative tribunals can be expected to bring to the task of decision-making “a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications”. Such a decision-maker could be expected to build up “expertise” in matters such as country information; and “[o]ften information of that kind is critical in deciding the fate of an individual’s application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment”: at [180];

(c) saying that a decision-maker has prejudged or will prejudge an issue, or that there is a real likelihood that a reasonable observer might reach that conclusion, involves the following contentions in respect of the decision-maker:
(i) they have an opinion on the relevant aspect of a matter in issue;

(ii) they will apply that opinion to the matter in the case; and

(iii) they “will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case”: at [185]; and

(d) having or expressing preconceived opinions does not constitute bias or a reasonable apprehension of bias, by pre-judgment, for it does not follow that the decision-maker will disregard the evidence: at [186].

The question as to a reasonable apprehension of bias is “one of possibility (real and not remote), not probability”: Ebner at [7]. Even so, as Kirby J explained in Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; 206 CLR 128 at [90], the test:-

...is not merely a sense of unease or a feeling that conventions of discretion and prudence have been breached. Something more is required. Although the law interposes the imputed consideration of a fair-minded observer and speculates on whether that person “might” (rather than “would”) entertain a reasonable apprehension of bias in the particular case, the serious consequences that necessarily attend the affirmative conclusion oblige that it should be “firmly established”.

(Citations omitted.)

An allegation of apprehended bias against an administrative officer must be distinctly made and clearly proved. More must be shown than a mere predisposition of the Tribunal to a particular view and it is necessary to show that a decision-maker’s mind is not open to persuasion: Jia Legeng at [69] and [71]-[72] (Gleeson CJ and Gummow J).

The standard of appellate review

While the primary judge’s decision that the Tribunal member’s conduct did not give rise to a reasonable apprehension of bias was necessarily evaluative, his decision to dismiss the application was dictated by the application to the facts of the fixed rule prohibiting apprehended bias. It did not involve the exercise of discretion, in that it was not a matter in which the primary judge was allowed “some latitude as to the choice of decision to be made”: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [19] (Gleeson CJ Gaudron and Hayne JJ); see also Norbis v Norbis [1986] HCA 17; 161 CLR 513 at 518 (Mason and Deane J); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [18] (Kiefel CJ), [43]-[49] (Gageler J), [85]-[87] (Nettle and Gordon JJ) and [144]-[147] (Edelman J).

Thus the primary judge’s decision does not attract the more deferential standard of appellate review applicable to an exercise of judicial discretion, as explained in House v The King [1936] HCA 40; 55 CLR 499 at 504-5 (Dixon (as his Honour then was), Evatt and McTiernan JJ). The question on appeal is whether the primary judge was right or wrong in his conclusion that the appellant had not established a reasonable apprehension of bias, not whether that conclusion was open to him in a House v The King sense.

The standard of appellate review is that referred to in Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551-522 (Gibbs CJ, Jacobs and Murphy JJ), in which the majority explained (at 552):

The duty of the appellate court is to decide the case – the facts as well as the law – for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.
The appeal is by way of rehearing, and it requires a “real review” of the proceeding below: Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62; 278 FCR 1 at [413] (Bromwich, O’Callaghan and Wheelahan JJ) citing Fox v Percy [2003] HCA 22; 214 CLR 118 at [25] (Gleeson CJ, Gummow and Kirby JJ).

The primary judge’s conclusion on apprehended bias was based on his review of the audio recording and transcript of the Tribunal hearing, and we have the same evidence. This Court is in as good a position as the primary judge to determine on the evidence whether the appellant has established a reasonable apprehension of bias.

The appellant submits that the Tribunal member’s general tone and manner in dealing with him was often impatient, rude and bullying; he often raised his voice and was sometimes scornful. The appellant says that the member often interrupted him, generally when he was trying to give evidence helpful to his case: e.g. the interruptions at T8.05, T8.36, T10.26, T10.32 and T12.42. The Minister denies that the member’s general manner and tone was impatient, rude and bullying, and contends that the audio recording and transcript do not otherwise disclose that the member’s mind was not open to persuasion. The Minister says that the audio recording shows that the member and the appellant both spoke over one another, and argues that is a common occurrence during a hearing. The Minister also says that the member did not prevent or hinder the appellant from giving his evidence, and that the absence of any protest by the appellant is relevant to how the reasonable lay observer would reach a conclusion as to the manner in which the hearing was conducted.

While the appellant’s submissions sometimes overstate the position, having listened to the audio recording we are satisfied that at various points the Tribunal member’s tone and manner in questioning of the appellant was loud, aggressive and interrupting. He often raised his voice and was impatient and sometimes rude. He was, on occasion, scornful or incredulous as to the appellant’s evidence. He also showed disinterest in evidence which might tend to show that the appellant’s incorrect answer in the 2018 visa application was not purposefully false. The Tribunal member’s conduct also suggested that he was affronted by the appellant’s offending conduct and perceived lack of remorse.

The Tribunal’s inquisitorial role may involve robust and forthright testing of a visa applicant’s claims, and such testing will not of itself sustain a finding of apprehended bias: SZRUI at [24] (Flick J, with whom Allsop CJ agreed); and occasional displays of impatience and irritation or occasional sarcasm or rudeness on the part of the Tribunal do not generally establish disqualifying bias. Generally such behaviour simply forms part of the factual matrix in relation to which any question of apprehended bias is to be assessed, but in some cases such behaviour may show bias or give rise to a reasonable apprehension of bias: SZRUI at [91] (Robertson J with whom Allsop CJ agreed) citing Sarbjit Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 902 at 10-11 (Lockhart J).

We have considered each of the instances of conduct by the Tribunal member on which the appellant relies, but our decision does not turn on a particular instance or instances. Rather, considering the Tribunal member’s conduct during the hearing in totality, and looking at the evidence cumulatively, we are satisfied that a fair-minded and appropriately informed lay observer might reasonably apprehend that the member might not bring an impartial mind to the question as to whether the appellant’s incorrect answer in his 2018 visa application was purposefully false. It is “of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”: R v Watson at 259 (Barwick CJ, Gibbs and Mason JJ (as their Honours then were), and Stephen J) citing R v Sussex Justices; Ex parte McCarthy [1923] EWHC KB 1; [1924] 1 KB 256 at 259 (Lord Hewart CJ). What strikes us when listening to the audio recording is that the Tribunal member’s conduct in the hearing crossed the line articulated in Ebner and the other authorities to which we have referred. In our respectful view the primary judge erred in finding otherwise.

We now turn to address some of the specific instances of the Tribunal member’s conduct which the appellant relies upon, but reiterate that our conclusion does not turn on a particular instance or instances.

1) The use of an interpreter

First, the appellant submits that the Tribunal member began the hearing on a hostile note, unfairly accusing him of “playing games” by persisting with his request to use an interpreter. The transcript (T2.01-2.27) and audio recording show the following exchange at the commencement of the hearing:-

MEMBER: What do you mean “the legal level”? What’s your IELTS score – overall band score?

MR CHEN: Seven.

MEMBER: Seven. I wonder if you’re playing games with me, Mr Chen. Someone with an overall band score of seven has a good command of English, however, you want us to use an interpreter for everything, do you?

We accept that at different points in the hearing the Tribunal member allowed the interpreter to interpret questions for the appellant, and that the member did not insist upon the appellant not using the interpreter where it was necessary. We accept too that, by and large, the appellant displayed sufficient proficiency in English such that he did not require the assistance of an interpreter, and that on the occasions he sought assistance from an interpreter he was permitted to do so. Having said that, the transcript shows eight instances where the appellant required the assistance of an interpreter, and several other occasions where his evidence was somewhat garbled because of his difficulties with English.

It is important to keep in mind that the appellant’s proficiency in English (at least in 2015 when he was convicted and in 2018 when he made the incorrect declaration) was central in the application. The appellant accepted that his declaration in the 2018 visa application that he had not been convicted of an offence was incorrect. The question for the Tribunal was whether that incorrect answer was “purposefully false” such that PIC 4020 was not satisfied.

Plainly, the appellant was not saying that he could not speak English; he was just saying that he did not consider his English to be good enough to rely on in a legal proceeding, keeping in mind that obtaining a favourable decision from the Tribunal was very important to him. Additionally, there was no issue before the Tribunal as to whether the appellant’s English language proficiency was sufficient for a subclass 485 visa, yet the member used the appellant’s explanation about his limitations with English as a basis for suggesting to him that, “perhaps [he is] not eligible for a 485 visa”. That was unfair and, in the context of the hearing overall, suggestive that the member was set against the appellant from the outset.

The vice in this part of the Tribunal member’s conduct was not so much that he might appear to have had an adverse opinion about the appellant’s claim before the hearing began, but that he had that opinion and then at various further points in the hearing his conduct was such that a fair-minded observer might well infer that there was nothing the appellant could say that might change the member’s mind. As we further explain, at various points in the hearing the member’s impatience, interruptions, tone, questioning, and comments about the implausibility of the appellant not understanding the meaning of “conviction”, might lead a fair-minded observer to consider that the member might not be open to persuasion: see VFAB at [82].

2) Appointment of Migration Agent

Second, the appellant relies on the following exchange, which took place almost immediately after the exchange regarding the use of an interpreter:

MEMBER: ...I do have a question: why – when did you engage Mr Zhao to provide you with support here today?

MR CHEN: After the hearing notice

MEMBER: It looks like it was Tuesday, two days ago.

MR CHEN: Yes. On that day I sent the represented form to the ---

MEMBER: It makes it almost impossible for an agent, a lawyer, it doesn’t matter how good they are; if somebody says, “Can you represent me, I’ve got to go to the tribunal tomorrow or the next day”. Why would you wait so long?

MR CHEN: To be very frank I ---

MEMBER: I don’t want you to be anything other than what you swore you would be earlier; just be truthful.

The audio recording and transcript shows that the member went off on a tangent at this point by asking an irrelevant question as to when the appellant appointed a migration agent. The member then interrupted the appellant before he could respond and, by reference to the date on which the appointment form was lodged with the Tribunal, the member (wrongly) criticised the appellant for appointing his agent late, using a loud voice and an intimidating tone (T3.40). When the appellant gave evidence as to when he engaged the migration agent, the member interrupted him again and said in a critical tone, “[s]o you don’t do anything for two weeks” (T4.27). As the appellant made clear when he was given a chance, he had appointed the migration agent about one week after he received notice of the Tribunal hearing on 2 October 2019, but he did not notify the Tribunal of that appointment until a few days before the hearing (T3.36 and T4.29).

In endeavouring to answer the Tribunal’s irrelevant question, which was based on an incorrect assumption, as to why he had waited so long to appoint an agent, the appellant commenced by saying: “To be very frank...” (T3.44). It can be accepted that the appellant was giving sworn evidence; he was required to be truthful in his answers, and his use of that phrase was superfluous. But the use of such a phrase as an introduction to an explanation is commonplace in everyday speech. Without permitting the appellant to finish his explanation the member interrupted him again, using a loud, forceful and angry tone, and said: “I don’t want you to be anything other than what you swore you would be earlier, just be truthful” (T3.46).

The member’s gratuitous and unjustified criticism of the appellant’s preparation of his case was irrelevant and may have been suggestive of bias to the fair-minded observer. His interruption to sternly warn the appellant to be truthful suggests that the member thought that the appellant may not give honest evidence, notwithstanding that the appellant had not done or said anything prior to that exchange which could be said to have fairly raised any doubt as to his honesty. The member was required to have an impartial mind, open to persuasion, as to whether the appellant’s answer in the 2018 visa application was purposefully false. When considered together with the other matters to which we refer, this exchange might lead a fair-minded and appropriately informed lay observer to reasonably apprehend that the member might not bring an impartial mind to that central question

3) Tribunal's failure to explore whether the incorrect answer in the 2018 visa application was purposely false

Third, the appellant contends that the Tribunal member displayed little or no interest in exploring the central issue as to whether his incorrect answer in the 2018 visa application was purposely false; which also supports a finding that a fair-minded lay observer might reasonably apprehend that the Tribunal may not have had an open mind. On the appellant’s argument, the Tribunal member’s approach indicates that he had come to the hearing with his mind made up and he therefore thought it unnecessary to make proper enquiries.

The Minister submits that a claim of apprehended bias cannot be made out by reference to a critique of the Tribunal’s inquisitiveness. He argues that there is no complaint that the Tribunal failed to afford the appellant the type of hearing required under s 360 of the Act, and that the appellant was well aware of the issues on review before the Tribunal. The Minister contends that it was unnecessary (and not indicative of bias) for the Tribunal not to explain the meaning of “conviction” to the appellant, or to further explore the issue of purposeful falsity with him.

We take a different view. It is difficult to understand why the Tribunal member did not at any point ask the appellant why he made an incorrect declaration as to his conviction(s) in his 2018 visa application, whereas in his 2019 visa application he freely answered the same question correctly. The fact that the appellant freely provided the correct information in his 2019 visa application could be said to indicate that the incorrect declaration in his 2018 visa application did not involve purposeful falsity. However, the member did not explore that issue at all.

As is apparent, the appellant said that before he made his 2019 visa application, he “got the AFP from the police station” (which we take to be a reference to the National Police Certificate provided by the AFP), and he then knew that he had a conviction because that document described the “court result” in respect of the stalking offence as, “Convicted. Bond to be of good behaviour for 12 months”. The appellant said that, up to that point, he had thought conviction meant “going to the jail”. In 2019, he provided the correct answer to the question about having a conviction, using similar language to that in the National Police Certificate: “bond to 12 months good behaviour”.

The appellant’s evidence that he had declared the correct information as soon as he had it, was inconsistent with the Tribunal member’s apparent hypothesis that the appellant was “playing games” in relation to his proficiency in English. However, instead of engaging with the appellant’s explanation, the member merely asked, rhetorically, in a loud and forceful tone: “How can it be an innocent mistake; it’s a simple question...”

Further, rather than engaging with the appellant’s explanation, the Tribunal member instead asked the appellant to spell out the various academic courses he had completed. That the appellant had completed those courses was uncontroversial and the relevant certificates were in evidence. The member’s focus on those matters over those raised by the appellant in the hearing might suggest to the fair-minded observer that the Tribunal member was fixed on the idea that the question in the 2018 visa application was a simple one, and that the appellant’s proficiency in English was such that he could not have misunderstood it. That conclusion may have been open to the Tribunal on the evidence, but the member displayed disinterest in evidence which pointed in favour of the appellant having made an innocent mistake. That includes: (a) that the appellant volunteered his 2015 conviction in his 2019 visa application; (b) there was no evidence before the Tribunal that the appellant’s IELTS English test or his academic studies exposed the appellant to the meaning of the legal term “conviction”; and (c) as the audio recording shows, the appellant struggled to express himself clearly using formal language. In the hearing he required assistance by the interpreter on eight occasions, and that was in 2019, four years after the 2015 criminal proceeding in relation to which he claims he did not understand he had been “convicted”.

Having regard to the totality of the Tribunal member’s conduct in the hearing, and considering that conduct cumulatively as the observer would, we find that a fair-minded lay observer appropriately informed as to the hearing being conducted, might reasonably have apprehended that the Tribunal might not have brought an impartial mind to the decision as to whether the appellant’s incorrect declaration involved purposeful falsity. We have referred to the various matters which, in combination, have drawn us to that conclusion and there is a clear logical connection between those matters and the feared deviation from the Tribunal deciding the case on its merits.

We consider the Tribunal did not afford the appellant procedural fairness and thereby fell into jurisdictional error, justifying an order that the Tribunal decision be set aside. We respectfully consider the primary judge erred in not so concluding. In the main, that conclusion arises from our view of the way the Tribunal member conducted the hearing, rather than any specific criticism of the primary judge’s reasoning.

Conclusion:-

We have made orders to uphold the appeal, to set aside the Tribunal’s decision, and to remit the appellant’s visa application to the Tribunal, differently constituted, to be determined according to law.

 

Added a post 

Hobart International Airport Pty Ltd v Clarence City Council; Australia Pacific Airports (Launceston) Pty Ltd v Northern Midlands Council [2022] HCA 5 (9 March 2022)

Intro:-

This is an appeal from the Federal Court of Australia

Facts:-

The Hobart Airport site and the Launceston Airport site ("the Airports") are on Commonwealth land. They are not amenable to council rates or State land tax because s 114 of the Constitution prohibits States (without the consent of the Commonwealth Parliament) from imposing "any tax on property of any kind belonging to the Commonwealth".

The Clarence City Council administers the municipal area covering the eastern suburbs of Hobart and surrounding localities, including the Hobart Airport site. The Northern Midlands Council administers the municipal area extending from the south of Launceston to the Tasmanian central midlands, including the Launceston Airport site.

During the late 1990s and early 2000s, the Commonwealth entered into a number of long-term leases with airport operators as part of a project to privatise Australia's federal airports ("the privatisation project"). Legislation to facilitate the privatisation project was enacted. The Airports Act 1996 (Cth) "establish[ed] the regulatory arrangements to apply to the airports [then] owned and operated on behalf of the Commonwealth by the [FAC] ... following the leasing of those airports". The Airports (Transitional) Act 1996 (Cth) ("the Transitional Act") established "a framework [to give] effect to the Government's decision to lease all the Federal airports effectively as ongoing businesses with staff and management in place". The simplified outline of the Transitional Act provided:-

● This Act provides for the leasing of certain airports.

● Airport land and other airport assets will be transferred from the [FAC] to the Commonwealth.

● The Commonwealth will grant an airport lease to a company. The company is called an airport-lessee company.

● Immediately after the grant of the airport lease, the Commonwealth may transfer or lease certain assets to the airport-lessee company.

● Certain employees, assets, contracts and liabilities of the FAC will be transferred to the airport-lessee company."

At the time of the privatisation project, the Commonwealth sought to create a "level playing field" between the operators of newly privatised airports and their actual or potential competitors. The Commonwealth recognised that a competitive imbalance arose from the fact that the newly privatised airports were situated on Commonwealth land and, therefore, were not amenable to council rates or State land tax. Consistently with the Commonwealth's long-standing policy of making payments equivalent to rates in respect of federal airports, and in order to implement the principle of competitive neutrality agreed to in the CPA, the Commonwealth included in federal airport leases a term requiring lessees to pay to the relevant council a "fictional" or "notional" equivalent to the rates that would have been payable if the airport sites were not on Commonwealth land.

These appeals are concerned with the following leases ("the Leases") granted by the Commonwealth pursuant to s 22 of the Transitional Act:

(1) a lease between the Commonwealth and Hobart International Airport Pty Ltd ("HIAPL") (the operator of the Hobart Airport) for the Hobart Airport site dated 10 June 1998, which commenced on 11 June 1998, for a term of 50 years, with a 49‑year option to renew; and

(2) a lease between the Commonwealth and Australia Pacific Airports (Launceston) Pty Ltd ("APAL") (the operator of the Launceston Airport) for the Launceston Airport site dated 28 May 1998, which commenced on 29 May 1998, also for a term of 50 years, with a 49‑year option to renew.

The Leases contain materially similar terms. The dispute giving rise to these appeals concerns cl 26, headed "Rates and Land Tax and Taxes". Clause 26.1 provides that "[t]he Lessee must pay, on or before the due date, all Rates, Land Tax and Taxes without contribution from the Lessor". Clause 26.2, headed "Ex Gratia Payment in Lieu of Rates and Land Tax", creates a mechanism whereby, if council rates and taxes are not payable by HIAPL and APAL ("the Lessees") because the Airports are situated on land owned by the Commonwealth, the Lessees must pay certain amounts to the relevant "Governmental Authority" or the Commonwealth, as the case may be.

Most relevantly for present purposes, cl 26.2(a) provides:-

"Where Rates are not payable under sub-clause 26.1 because the Airport Site is owned by the Commonwealth, the Lessee must promptly pay to the relevant Governmental Authority such amount as may be notified to the Lessee by such Governmental Authority as being equivalent to the amount which would be payable for rates as if such rates were leviable or payable in respect of those parts of the Airport Site:-

(i) which are sub-leased to tenants; or

(ii) on which trading or financial operations are undertaken including but not limited to retail outlets and concessions, car parks and valet car parks, golf courses and turf farms, but excluding runways, taxiways, aprons, roads, vacant land, buffer zones and grass verges, and land identified in the airport Master Plan for these purposes, unless these areas are occupied by the Commonwealth or an authority constituted under Commonwealth law which is excluded from paying rates by Commonwealth policy or law. The Lessee must use all reasonable endeavours to enter into an agreement with the relevant Governmental Authority, body or person to make such payments." (emphasis added)

The Clarence City Council and the Northern Midlands Council ("the Councils"), established under the Local Government Act 1993 (Tas)[19], are respectively the relevant "Governmental Authority" for the Hobart Airport and the Launceston Airport. The Councils are not, and have never been, parties to the Leases.

Between 1998 and 2013, there was no issue about the operation of cl 26.2(a). The Lessees made payments to the Councils in accordance with independent valuations of the Airports in each financial year. In the 2014 financial year, the Valuer-General for Tasmania ("the Valuer‑General") undertook a re‑valuation of the Airports. The outcome was a significant increase in the quantum of the equivalent amount payable by the Lessees to the Councils under cl 26.2(a) of the Leases. The Lessees objected to the valuation on the bases that the Valuer-General incorrectly identified the portions of the Airports on which trading or financial operations were undertaken to be included for calculating the amount payable under cl 26.2(a) (for example, by including common user areas of the Airports, such as the check-in areas and departure lounges) and that the wrong methodology had been applied.

Protracted correspondence and meetings subsequently ensued between the Lessees, the Councils and the Commonwealth in an effort to resolve the disagreement. The Commonwealth engaged an independent valuer, Herron Todd White ("HTW"). In 2016, HTW provided a valuation report, which the Commonwealth considered accurately reflected the Lessees' obligations under cl 26.2(a). The Commonwealth told HIAPL that, because it had made payments to the Clarence City Council exceeding the amounts determined in the valuation report, it considered HIAPL had met its obligations under cl 26.2(a) for the years addressed by the valuation (namely, the 2014, 2015 and 2016 financial years). The Commonwealth told APAL that if it made payments to the Northern Midlands Council in line with the valuation report, it would consider APAL to have met its obligations under cl 26.2(a) for the 2014, 2015 and 2016 financial years, and APAL subsequently made payments accordingly.

In 2017, HTW provided a revised valuation report. HTW did not apply a value to the common user areas in the revised valuation. The Commonwealth informed the Lessees that "[g]oing forward", absent any formal agreement between the Councils and the Lessees, it would consider the Lessees compliant with their obligations under cl 26.2(a) if they made "payments in lieu of rates to [the Councils] on the basis of a valuation and methodology consistent with" the revised HTW valuation. The Commonwealth encouraged the Lessees to enter into negotiations with the Councils, "with a view to reaching mutually agreed arrangements around the payment of ex‑gratia rates for future years". Subsequently, for the purposes of cl 26.2(a), the Lessees paid the Councils on the basis of the valuations and methodology set out in HTW's revised valuation for the 2017 and 2018 financial years.

There was therefore no dispute between the parties to the Leases – the Commonwealth and the Lessees – about the operation of cl 26.2(a) or the Lessees' compliance with it. The Lessees and the Councils have not relevantly entered into any agreements about ex-gratia payments as contemplated by the final sentence of cl 26.2(a)[20].

The Councils, however, contended that the Valuer‑General had correctly identified the portions of each Airport on which trading or financial operations were undertaken in calculating the equivalent quantum under cl 26.2(a) and applied the correct methodology. The Councils, therefore, did not accept that the Lessees' payments to them of amounts calculated in accordance with HTW's valuations (and not the higher amounts based on the Valuer-General's valuation) satisfied the Lessees' obligations under cl 26.2(a).

The Councils then commenced proceedings in the Federal Court of Australia against the Commonwealth and the Lessees seeking, among other things, declaratory relief pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) with respect to the proper construction of cl 26.2(a) of the Leases and the Lessees' obligations to make payments pursuant to the Leases for the financial years for 2014/2015 to 2017/2018 inclusive.

Decisions below

The primary judge dismissed the Councils' applications on the basis that the Councils lacked standing to obtain the declaratory relief sought.

The Councils appealed to a Full Court of the Federal Court (Jagot, Kerr and Anderson JJ) on various grounds essentially directed to arguing that the Councils had standing to seek the declaratory relief in respect of the interpretation and application of the Leases. The Commonwealth's position was not materially different to that adopted by the Councils.

The Lessees contended that the primary judge correctly found that the Councils did not have standing. They also filed notices of contention arguing, in the alternative, that the primary judge's decision should be affirmed on three grounds: (1) the Councils' claims did not involve a justiciable controversy so as to constitute a "matter" for the purposes of Ch III of the Constitution in respect of which the Federal Court had jurisdiction; (2) the Federal Court did not have original jurisdiction as any "matter" did not arise under any law made by the Commonwealth Parliament within the meaning of s 39B(1A)(c) of the Judiciary Act 1903 (Cth); or (3) the Federal Court should decline to exercise its discretion to grant the relief sought by the Councils. The Full Court unanimously allowed the Councils' appeals, dismissed the Lessees' notices of contention and remitted the proceedings to the primary judge to determine whether the Councils should be granted the declaratory relief sought.

By grant of special leave, the Lessees appealed to this Court. Each of the Lessees contended that the proceeding to which it is a party does not involve a "matter" for the purposes of Ch III of the Constitution as there is no justiciable controversy to be quelled and the only rights, duties or liabilities to be established are the contractual rights, duties or liabilities of two contracting parties inter se between whom there is no dispute about the meaning or effect of the relevant lease. The Lessees also contended that the doctrine of privity of contract prevented the Councils from seeking declaratory relief regarding the interpretation or application of the Leases and that the Councils lacked standing.

The Councils filed notices of contention contending that if the doctrine of privity of contract ordinarily prevents a third party from seeking declaratory relief about the meaning or effect of a contract, then this case involves "exceptional circumstances" sufficient to establish standing or the Court should confine the doctrine so that it does not deny standing where the third party is a participant in respect of the contract.

Matter

"Matter" has two elements: "the subject matter itself as defined by reference to the heads of jurisdiction set out in [Ch] III [of the Constitution], and the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy".

Subject matter

The Councils' claims for declaratory relief satisfy the first element – the subject matter requirement. The rights and obligations of the Commonwealth and the Lessees under the Leases owe their existence to a Commonwealth law, the Transitional Act, such that the claims "aris[e] under" a Commonwealth law within s 76(ii) of the Constitution.

The fact that the Commonwealth is a party to the proceedings, within s 75(iii) of the Constitution, does not provide a separate basis for satisfying the subject matter requirement. Section 39B(1A) of the Judiciary Act does not invest federal jurisdiction in the Federal Court in relation to all matters within s 75(iii), only those in which "the Commonwealth is seeking an injunction or a declaration". In these proceedings, the Commonwealth does not seek such relief. The Commonwealth's submission to the contrary is rejected.

Justiciable controversy

Central to both the notions of judicial power and "matter" within Ch III of the Constitution is the second element – the requirement that the dispute involves a "justiciable controversy". The established position remains that "there can be no matter within the meaning of [ss 75 and 76 of the Constitution] unless there is some immediate right, duty or liability to be established by the determination of the Court".

In these appeals, whether there is a justiciable controversy may be addressed by asking if the applicable principles permit the Councils to seek declaratory relief in relation to the dispute. That is, in these appeals (but not in all cases), the answer to the question of whether there is a justiciable controversy turns on whether the Councils have standing to have the dispute determined and to seek the declaratory relief sought.

The question in these appeals can be approached in this way because, in federal jurisdiction, "questions of 'standing' to seek equitable remedies such as those of declaration and injunction, [when they arise,] are subsumed within the constitutional requirement of a 'matter'". The "significance of standing to the existence of a matter for the purposes of Ch III" is, in essence, that there is no "matter" "unless there is a remedy available at the suit of the person instituting the proceedings in question". While "[a] negative answer to the question – is there a matter before the Court in which it has federal jurisdiction? – would render the question of the plaintiff's standing moot", "an affirmative answer to the question – is there a matter? – may not be sufficient to answer the question whether the plaintiff has standing". It may be that standing to seek relief ordinarily provides the "justiciable" aspect of the controversy, but it is unnecessary to determine whether, in every case where an applicant has "standing", there is necessarily a "justiciable controversy".

It is for those reasons that the particular question in these appeals is whether the Councils have standing. What is required to establish "standing" varies depending on the relief sought. Here, the Councils seek declaratory relief. The breadth of the jurisdiction to grant declaratory relief was considered by Gibbs J in Forster v Jododex Aust Pty Ltd. The question must be real, not theoretical. There must be a proper contradictor – someone presently existing who has a true interest to oppose the declaration sought. And the applicant must have a "sufficient" or "real" interest in obtaining the relief. There is no requirement that an applicant for declaratory relief have a cause of action in order to obtain it. Those principles are not exhaustive. These appeals turn on the nature and adequacy of the Councils' interest in the resolution of the dispute.

Sufficient or real interest

The requirement that an applicant for declaratory relief have a "sufficient" or "real" interest in obtaining the relief has work to do in both public and private law contexts. "However, the requirement applies differently to different sorts of controversies".

In respect of private rights, the general principle is clear: an applicant for declaratory relief will have a "sufficient" or "real" interest in obtaining relief where it pertains to declaring the existence of legally enforceable rights or liabilities of the applicant, including statutory rights. Here, the Councils did not assert that they had any legally enforceable contractual rights under the Leases or any statutory right which they could enforce and, at least in the proceedings below, they disavowed that they enjoyed the benefit of a contractual promise held on trust.

Although lack of privity is a factor relevant to standing and a reason for a court approaching the question of the standing of an outsider with considerable caution, an outsider to a contract may, "for other reasons"[ – what might be described as "exceptional circumstances" – have a "sufficient" or "real" interest to seek declaratory relief as to the meaning and effect of a contract between contracting parties. As the Full Court put it below, "there is reason to be concerned as to the potential for what might be described as unfounded intermeddling by a third party to a contract. But, in the context of declaratory relief, the solution to that concern is not the doctrine of privity of contract".

In Edwards v Santos Ltd[42], Heydon J referred to the decision of the Full Court of the Federal Court in Aussie Airlines Pty Ltd v Australian Airlines Ltd as an example of how a person (in that case, an outsider to a contract) can have standing to obtain a declaration and how a court can have jurisdiction to grant a declaration (relevantly, in relation to the contract). In Aussie Airlines, head leases of airport facilities required the head lessee to grant a sublease to any "new entrant to the domestic aviation industry". Aussie Airlines Pty Ltd claimed to be a "new entrant to the domestic aviation industry"[. The Full Court of the Federal Court held that Aussie Airlines had standing to obtain a declaration that it was a "new entrant to the domestic aviation industry" even though it was not found to have rights under the head lease enforceable against the head lessee. The Court held that the question of whether Aussie Airlines was a "new entrant to the domestic aviation industry" was not "hypothetical"; the resolution of the question was of "real practical importance" to Aussie Airlines; Aussie Airlines had a "real commercial interest" in the relief; the head lessee was "plainly a contradictor"; and there was "obviously a real controversy".

The declaratory relief sought (as to whether Aussie Airlines was a "new entrant to the domestic aviation industry" within the meaning of head leases to which it was not a party) was "of real practical importance" to Aussie Airlines because "[i]f negotiations commence[d] and result[ed] in the grant of subleases" there would be "far-reaching ramifications for the prospective business activities of Aussie Airlines". Aussie Airlines also had "a real commercial interest in obtaining or being refused the declaration" because its future business activities depended upon it obtaining subleases and becoming a new entrant.

Similarly, the Councils have a "sufficient" and "real" interest in seeking declaratory relief about the proper construction of cl 26.2(a) of the Leases. Under cl 26.2(a), the Councils are made active participants in the process established under that clause for the making of ex‑gratia payments by the Lessees to the Councils. That process contemplates that the Councils will notify the Lessees of the amount which is "equivalent to the amount which would be payable for rates as if such rates were leviable or payable" in respect of particular parts of the Airports, with the Lessees being obliged to use "all reasonable endeavours" to enter into an agreement with the Councils "to make" those ex‑gratia payments. In that sense, and to that extent, the Councils could not be described as "outsider[s]" to the Leases[. The proper construction of the words "trading or financial operations" in cl 26.2(a) is of real practical importance to the Councils, given their contemplated role under the Leases.

The Councils also have a real commercial interest in the relief. The meaning of the words "trading or financial operations" in cl 26.2(a) will bear upon the calculations made by the Councils as to the quantum of the amount notified by the Councils. That will have direct and far‑reaching ramifications for the financial position of the Councils.

In Santos, Heydon J regarded it as significant that the plaintiffs' success in obtaining the declaratory relief sought in that case "would advance their interests in the negotiations which the parties were contractually obliged to conduct". The same is true here. If the construction of cl 26.2(a) is determined in favour of the Councils, that would advance their interests for the purposes of future negotiations contemplated and required by cl 26.2(a). The Leases still have 26 years to run, with an option to renew.

These reasons should not be read as suggesting that possessing a mere commercial interest in obtaining declaratory relief about the meaning and effect of a contract to which an applicant for declaratory relief is not a party, on its own, would give rise to a "sufficient" or "real" interest. What makes this case exceptional is the combination of circumstances identified at [38]‑[40] above. Moreover, these reasons are only concerned with the Councils' claims for declaratory relief. The sufficiency of interest that might be required for a non-party to a contract to establish standing to obtain other forms of relief (for example, an injunction, damages or specific performance) does not arise in these appeals.

After the hearing, the Councils filed written submissions seeking to contend, for the first time, that they had standing to seek the declaratory relief sought because they enjoyed the benefit of a contractual promise under the Leases which was held on trust for them. As the Councils have standing to seek the declaratory relief for the reasons set out above, it is unnecessary to address that contention. The issues raised by the Councils' notices of contention also do not arise.

Contradictor

Finally, the fact that the Lessees are obliged under cl 26.2(a) of the Leases to use all reasonable endeavours to enter into an agreement with the Councils to make the ex‑gratia payments and ultimately are obliged to pay amounts to the Councils means that each Lessee is plainly a contradictor. The Lessees certainly do not wish to pay more than they are contractually bound to pay under cl 26.2(a) of the Leases – they each have a real interest in opposing the declaratory relief sought[, indeed they opposed the Councils' construction of cl 26.2(a) before the primary judge.

Conclusion:-

For those reasons, each proceeding involves a "matter". The appeals are dismissed with costs.

Added a post 

Nahi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 29 (8 March 2022)

Intro:-

This is an appeal from dismissal of application for judicial review of Administrative Appeals Tribunal’s decision to affirm decision not to revoke mandatory cancellation of visa on character grounds.

Facts:-

Mr Nahi is a citizen of New Zealand who has resided in Australia since 2010 when he was aged 14. Mr Nahi’s visa was mandatorily cancelled by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs pursuant to s 501(3A) of the Migration Act 1958 (Cth) following his conviction for possession of stolen or unlawfully obtained property for which he was sentenced to 14 months’ imprisonment.

The Administrative Appeals Tribunal affirmed that decision on 10 February 2021 and published reasons for its decision (Tribunal’s reasons). A subsequent application to the Federal Court of Australia for judicial review of the Tribunal’s decision was dismissed on 29 September 2021.

Legislative provisions

Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. It is not in dispute that Mr Nahi did not pass the character test in s 501(1) of the Migration Act, because of the operation of subs (6)(a), on the basis of subs (7)(c).

Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act if the directions are about the exercise of those functions or powers. By s 499(2A), a person or body must comply with a direction made under s 499(1). On 20 December 2018, the then Minister made Direction 79, which came into force on 28 February 2019, and which applied to the decision in respect of the applicant’s visa refusal. (I interpolate that Direction 79 has since been revoked and replaced with Direction 90 made on 8 March 2021 with effect from 15 April 2021).

Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. It is not in dispute that Mr Nahi did not pass the character test in s 501(1) of the Migration Act, because of the operation of subs (6)(a), on the basis of subs (7)(c).

Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act if the directions are about the exercise of those functions or powers. By s 499(2A), a person or body must comply with a direction made under s 499(1). On 20 December 2018, the then Minister made Direction 79, which came into force on 28 February 2019, and which applied to the decision in respect of the applicant’s visa refusal. (I interpolate that Direction 79 has since been revoked and replaced with Direction 90 made on 8 March 2021 with effect from 15 April 2021).

Issues:-

1) Whether learned primary judge erred by failing to find that the Second Respondent was under a duty to inquire after the best interests of the children affected by its decision?

2) Whether the learned primary judge erred by finding that any failure to inquire by the Second Respondent after the best interests of children affected by its decision was not material?

Ground 1

As to Ground One, Mr Nahi contends that the source of the Tribunal’s duty to inquire is s 499 of the Migration Act and Direction 79. In this respect, the primary judge said:

It might well be accepted that there was an obligation on the Tribunal to make an “obvious inquiry” such as “what was the relationship of the minor children to the applicant?” and “what is the evidence that the applicant relies upon with respect to the best interests of minor children?” I do not accept, however, that there was any obligation on the Tribunal to seek to supplement or independently investigate the evidence relied upon by the applicant for the best interests of the minor children consideration, particularly in circumstances where the Tribunal had expressly raised its concerns as to the scope of the material advanced by the applicant to his representative in the course of the hearing before it. The role of the Tribunal was to consider the representations made to it to determine whether the criteria in s 501CA(4) had been met: Taualii at [96] (Anderson J); Pennie at [14] (Davies, Derrington and Colvin JJ).

In Pennie v Minister for Home Affairs [2019] FCAFC 129, the Full Court held:-

"The primary judge correctly stated that it was for Mr Pennie to put before the Minister what he wanted the Minister to take into account and it was not for the Minister to undertake his own research or investigate for himself the likelihood or otherwise of Mr Pennie finding housing in Ireland, or obtaining social with fair or adequate healthcare. The Minister had no legal duty to make such inquiries for himself nor to make findings of fact as to whether Mr Pennie would be entitled to social and housing welfare if removed to Ireland: Maihoa at [41]-[46] (Rares and Robertson JJ). His legal duty was to address the representations made and to take them into account in considering whether to revoke the cancellation decision. A fair reading of the Minister’s reasons discloses that he both considered and weighed up the matters put to him by Mr Pennie."

(emphasis added)

Taualii v Minister for Home Affairs [2019] FCA 2013 and Pennie both involved decisions that had been made by the Minister personally. Mr Nahi submits that this distinction is sufficient to render the primary judge’s conclusion wrong and asserts that in this case, the Tribunal was bound to take into account the relevant considerations set out in Direction 79, not only the representations made by Mr Nahi. Mr Nahi further submits that under Direction 79 the best interests of the children was a critical matter in respect of which the Tribunal was bound to make an obvious inquiry and the obvious thing to do was for the Tribunal to question the witnesses relied upon by Mr Nahi. Implicit in the submission was a contention that the Tribunal was bound to take that course irrespective of the position adopted by his counsel before the Tribunal.

These submissions should not be accepted.

Firstly, the Tribunal clearly satisfied its obligation under Direction 79, by reference to the specific provisions of paragraph 13.2(4) of that Direction. Those factors have been stated above. In this case, they required an evaluation of matters such as the nature and duration of the relationship between each child and Mr Nahi, the extent to which he was likely to play a positive parental role, the likely effect of separation on the child and whether there are others who are likely to fulfil the parenting role. The inability of the Tribunal to make any informed assessment of the matters identified in paragraph 13.2(4) of Direction 79 because of ‘insufficient evidence’ (Tribunal’s reasons at [84]) does not negate that proposition.

The Tribunal considered the evidence before it relevant to that consideration. Such evidence was relatively scant. The lawyers acting for Mr Nahi advanced the following matters as to the best interests of minor children in three short paragraphs in a detailed statement of facts, issues and contentions:

- The Applicant’s [sic] has a niece and nephew who are the children of his eldest brother. The family are close knit and see one another on a weekly basis. Prior to his incarceration [the applicant] was involved in the life of his niece and they bonded. The impact upon their lives will result from the absence of an Uncle who is a key member of his family.

- The Applicant is additionally an active and loving God Father to [two godsons].

- The Applicant is close to his fiancé’s youngest brother...who is 6 years old. He has been close to [him] and they have lived together for long periods during [his] life.

A statement from Mr Nahi’s partner referred to Mr Nahi’s relationship with his niece, godchild, and his partner’s younger brother. A letter from Joshua Thompson referred to Mr Nahi as the godfather to Mr Thompson’s son and a subsequent statement from Mr Thompson referred to Mr Nahi having become the godfather to his second child. There was a letter from Connor Minas referring to Mr Nahi’s godson. During oral evidence, Mr Nahi referred to his relationship with his partner’s younger brother and the support he provides to him.

During the course of the hearing, the Deputy President stated that he could not see where there was any evidence that would assist the Tribunal in considering the factors specified in the direction. In substance, counsel appearing for Mr Nahi accepted that was the case and pointed to the limited very general evidence that had been given. The Deputy President observed in that exchange 'Yes, okay. As long as I am not overlooking anything'.

Plainly, the Tribunal was concerned to give notice that the material that had been put forward appeared to be insufficient. There was no suggestion by counsel that there might be further evidence or further inquiry. The submissions in the facts, issues and contentions are expressed in the most general of terms. When their insufficiency was exposed there was no suggestion that there was available further material that could be brought before the Tribunal. In those circumstances, the Tribunal was entitled to proceed on the basis that the material that was before the Tribunal was the extent of the available evidence concerning the best interests of the children, especially where the children were not Mr Nahi's own children nor was there any suggestion that they were children in respect of whom he fulfilled parental responsibilities.

The Tribunal recorded that none of the statements assisted the Tribunal in assessing the factors identified in paragraph 13.2(4) of Direction 79. The Tribunal was entitled to find, on the basis of the evidence that had been elicited, that this primary consideration did not weigh in favour of the revocation of the cancellation of Mr Nahi’s visa. By doing so, it had regard to the best interests of the children.

Secondly, Mr Nahi was represented before the Tribunal. In its reasons, the Tribunal quoted the exchange with counsel and then expressed the view that there was insufficient evidence to make any informed assessment of the factors that were required to be considered in relation to the interests of minor children (Tribunal’s reasons at [84]). There is no issue taken with that conclusion. Rather, it is said that the Tribunal failed to inquire into the best interests of the five children. That is simply not correct. The Tribunal did inquire. It pointed out in terms the factors to which the Tribunal was required to have regard in assessing the best interest of minor children. Its inquiry met with a response from counsel that provided no hint of any matter that might be the subject of further inquiry in addressing the factors specified in the direction. No adjournment was sought to adduce further evidence and only one witness was asked to elaborate on the written statement in relation to the interests of the minor children.

Therefore, this is not a case in which there was a failure by the Tribunal to make an obvious inquiry about a critical fact of the kind referred to in Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203. The Tribunal made inquiry. There was no constructive failure to exercise jurisdiction.

Thirdly, the contention that the Tribunal should itself have made inquiries of the witnesses about matters relevant to the interests of the children in addition to raising its concerns with counsel and seeking clarification as to whether it was overlooking anything appears to be a claim that the Tribunal 'did not go far enough to discharge its obligation to conduct its review having regard to the interests of [the children]' being the possibility recognised in Uelese at [68].

In the circumstances of the present case where the issue was raised with counsel and there was nothing to suggest that there was significant evidence of a different character that might be given by those witnesses, the obligation was discharged. Whether there are obvious inquiries that should have been is a matter that must be determined in the context in which matters unfolded before the Tribunal. It is not explained why, given the outline of facts, issues and contentions that were provided before the hearing, the content of the witnesses' statements and the answers given by counsel to the questions by the Deputy President it might be thought that there was other more significant evidence that might be forthcoming if further questions were asked. Therefore, there is no basis for concluding that the Tribunal should have gone further than seeking clarification from counsel that there was nothing else beyond the way the case was put in contentions.

Ground 2

As to Ground Two, no criticism is made of the primary judge’s articulation of the principles relevant to materiality. Rather, the error is said to be in the application of those principles to Mr Nahi’s circumstances. Mr Nahi contends that the primary judge should have considered whether there were rational and reasonable choices open to the Tribunal as to the findings it could make in relation to the evidence adduced in the further affidavit material before the primary judge which in turn could realistically have resulted in a different decision. The further affidavit evidence was relevant to the second primary consideration, the best interests of minor children.

The circumstances of Mr Nahi’s offending were such as to lead the Tribunal to determine that the first primary consideration, the protection of the Australian community from criminal or other serious conduct, weighed moderately against revocation, and that the third primary consideration, the expectations of the Australian community, was given only minor weight against revocation of the decision. These considerations were not outweighed by the Tribunal’s finding that the strength, nature, and duration of the Mr Nahi’s ties to Australia weighed moderately in favour of revocation of the cancellation decision (Tribunal’s reasons at [122]). The weight accorded to various matters in Direction 79 is entirely a matter for the Tribunal.

Whether the decision that was in fact made could have been different had the further evidence been available, ‘falls to be determined as a matter of reasonable conjecture with the parameters set by the historical facts that have been determined on the balance of probabilities’: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [38]. The High Court went on to explain, at [39]:

"Bearing the overall onus of jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made...the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made..."

(Emphasis added)

The further affidavit evidence was provided by Ms Tran (Mr Nahi’s de facto partner), Mr Eugene Nahi (Mr Nahi’s father), Mrs Nahi (Mr Nahi’s mother), and Mr Nahi himself. Before the primary judge, there was no challenge to any of the evidence contained in the affidavits and counsel for the Minister invited this Court to accept that it was truthful evidence that would have been given before the Tribunal if the deponents had been asked the relevant questions. We have proceeded on that basis.

The primary judge described the further affidavit evidence as (Reasons at [70]),

"largely of a qualitative character and expressed in general terms. It revealed the extent of the emotional attachments that the applicant had established with the five children and the importance of their relationships with him, rather than the extent to which any of them depended on the applicant for their living expenses, accommodation, clothing, transport and day to day care."

It cannot be doubted that emotional attachments of themselves may be of great significance for the wellbeing of children. The interests of children may be substantially affected if they are separated from people with whom they have formed strong bonds, irrespective of whether those people also provide practical support. Evidence of that kind may be adduced to demonstrate the strength and duration of a relationship. It may be persuasive in the particular circumstances.

In the present case, particularly given the very young ages of the relevant children, it is a matter of note that further affidavit evidence was not elicited from any of the children’s parents in relation to their own child’s relationship with Mr Nahi. Such evidence as was given by the children’s parents was before the Tribunal. That evidence was limited to a statement from the father of Mr Nahi’s two godchildren who spoke of not wanting Mr Nahi to ‘miss out on them growing up’.

When considering the strength, nature and duration of Mr Nahi’s ties to Australia, the Tribunal said, (Tribunal’s reasons at [99]):

The Applicant’s SFIC (paras 54—61) claims the following ties that the Applicant has to Australia and the family and other links to Australian residents:

...
The Applicant has a number of significant Australian minors who are reliant upon his presence in their lives, he wants to be an example to them. He wants to show them that he is someone who has made mistakes but will demonstrate positive and meaningful change in his life. This claim is not supported by the evidence. There is certainly no evidence to support the claim that any minor is reliant on the Applicant’s presence in their life. As noted earlier, and as conceded by Ms Watts at the hearing (see [83] above), there was no evidence other than general statements of a desire to be supportive in the future in the Applicant’s Personal Circumstances Form ... to support his claim.
(Emphasis added)

Each of the further affidavits depose to the ages of the five children. The children’s respective dates of birth have some bearing on the weight to be accorded to some of the claims made in the affidavits when considering the counterfactual question of whether the decision of the Tribunal could have been different if the evidence therein had been before the Tribunal.

As at the date of the Tribunal’s Reasons (10 February 2021), Mr Nahi had been in custody since 29 August 2019. Three of the children had been born before Mr Nahi was incarcerated – his de facto partner’s brother, on 9 June 2014; his godson, on 28 March 2018, and his niece, on 15 January 2019. The remaining two children, a niece and another godson, were born on 15 May 2020 and 22 April 2020 respectively.

When it came to the evidence concerning the children, the terms of Direction 79 were specific as to the factors to which the Tribunal was to have regard. They were specified in paragraph 13.4. The following observations can be made concerning whether there was a realistic possibility that the evidence that would have been given could have resulted in a favourable decision for Mr Nahi having regard to the specified factors:

- the evidence as to the nature and duration of the relationships between Mr Nahi and the children shows that it has been relatively limited, with the longest relationship being of about five years duration pre-incarceration and two and a half years since his incarceration, with his de facto partner’s brother. Mr Nahi’s relationship to each child is non-parental and there was no evidence that any of the children’s primary residences were with Mr Nahi and his partner. In respect of the three older children, Mr Nahi has been incarcerated for periods representing a significant portion of their very young lives and he has had no contact with the two younger children (13.2(4)(a));

- there is no evidence that Mr Nahi is likely to play a parental role for any of these children, not being a parent of any of them (13.2(4)(b));

- there is no evidence that Mr Nahi’s conduct is likely to have a negative impact on any of the children (13.2(4)(c));

- there is some evidence from the father of Mr Nahi’s godson that the child will ‘miss out’ on having Mr Nahi around. There is further evidence, albeit not from the parents of either child, that at least the two eldest children may be affected by separation from Mr Nahi, although there is evidence that contact is presently maintained by FaceTime. ((13.2(4)(d));

- there are other persons who fulfil the parenting role in relation to each of the children (13.2(4)(e));

- there is no evidence of the views of the children which is unsurprising given their very young ages (13.2(4)(f));

- there is no suggestion of any abuse, neglect, physical or emotional trauma arising from Mr Nahi’s conduct (13.2(4)(g)-(h)).

The further affidavits do not depose to historical facts sufficient to sustain the requisite reasonable conjecture that the Tribunal could have made a different decision. They depose to Mr Nahi’s love for the children, his babysitting of the two eldest children, and to the fact that the children were ‘always happy’ when Mr Nahi was around. This evidence goes little further than that which was before the Tribunal and which was considered in its weighing of Mr Nahi’s ties to Australia, which were assessed to weigh moderately in favour of revocation of the decision to cancel Mr Nahi’s visa (Tribunal’s reasons at [120]).

In light of the ultimate finding by the Tribunal, and in light of the quite limited forensic utility of the further affidavit evidence, it is difficult to see that there is a realistic possibility that a different decision could have been made if that further evidence had been elicited by the Tribunal. The primary judge was correct to conclude that it could not have realistically resulted in a different decision by the Tribunal: MZAPC at [38].

Therefore, Ground Two also should not be upheld.

Conclusion:-

For these reasons, the appeal must be dismissed.

Added a post 

Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 (3 March 2022)

Intro:-

Mohamed Khalil is aggrieved by a decision of the Administrative Appeals Tribunal affirming a decision of the Minister to refuse to grant him a Partner (Temporary) (Class UK) visa (partner visa) on character grounds. He applied to this Court for judicial review but the primary judge dismissed his application. This is an appeal from that judgment.

Facts:-

On 9 November 2017, a delegate of the Minister refused to grant Mr Khalil a partner visa because the delegate was satisfied that Mr Khalil had a “substantial criminal record” and did not pass the character test for the purposes of ss 501(6)(a) and (7)(c) of the Migration Act 1958 (Cth) (the Act). That decision was affirmed by the Tribunal on review. Mr Khalil applied for judicial review of the Tribunal’s decision. That application was dismissed but, following an appeal to the Full Court, the Tribunal’s decision was quashed: Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326 (Logan, Steward and Jackson JJ) (Khalil (No 1)).

On remittal, a differently constituted Tribunal again affirmed the delegate’s decision to refuse to grant Mr Khalil a partner visa: Khalil and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4592. Before this Tribunal Mr Khalil relied on additional documents, including a report of a clinical psychologist, Dr Indira Pattni, which included opinions on his risk of reoffending and the best interests of his children.

The legal framework

Section 501(1) confers a discretionary power on the Minister to refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the character test. Section 501(6) relevantly provides that a person does not pass the character test if that person has a “substantial criminal record”. That term is relevantly defined in subs (7)(c) to mean a person who has been “sentenced to a term of imprisonment of 12 months or more”.

Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the exercise of those functions and powers. Section 499(2A) relevantly imposes an obligation on a person or body to comply with a direction made under s 499(1). At the time of the Tribunal’s decision, the relevant Ministerial direction was Direction No 79, entitled “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).

Clause 8(1) of Direction 79 requires decision makers to “take into account the primary and other considerations relevant to the individual case”. The relevant primary considerations are contained in cl 11 and comprise the “protection of the Australian community from criminal or other serious conduct”, the “best interests of minor children in Australia”, and the “expectations of the Australian community”. The relevant “other considerations” are contained in cl 12. These include international non-refoulement obligations and the impact on family members, victims, and Australian business interests.

Clause 8(2) contains guidance on the weight to be afforded to certain evidence when applying these considerations. It states:-

(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

In considering the “protection of the Australian community”, cl 11.1(1)(b) provides that a decision maker should take into account the “risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct”. Clause 11.1.2(3) sets out the relevant matters that must be taken into account when assessing this risk. It states:-

(3) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
the duration of the intended stay in Australia.

In assessing the “best interests of the child”, cl 11.2(4) requires the decision maker to consider the following factors where relevant:-

a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b) The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;

c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;

d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

e) Whether there are other persons who already fulfil a parental role in relation to the child;

f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

Applications may be made to the Tribunal for review of a decision made under s 501: s 500(1)(b). Pursuant to ss 25 and 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the Tribunal must “stand in the shoes” of the Minister and determine for itself the decision that should be made on the evidence before it, exercising the relevant powers and discretions conferred on the Minister: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 at [51] (Kiefel CJ, Keane and Nettle JJ).

The Tribunal is not bound by the rules of evidence but may inform itself of any matter as it thinks appropriate (AAT Act, s 33(1)(c)). The Tribunal is required to give oral or written reasons for its decision, and if it gives written reasons it must “include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based” (AAT Act, ss 43(2) and (2B)).

A decision of the Tribunal concerning a matter of this nature is a privative or purported privative clause decision of the Tribunal within the meaning of s 474 of the Act. As the Full Court explained in Khalil (No 1) at [43]:-

"The jurisdiction of the Federal Court to review decisions of the Tribunal in the present context is limited to jurisdictional error: Migration Act s 476A(2). Not every error of law is a jurisdictional error: see the recent analysis in Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 367 ALR 465 at [33]‑[40]. In a statutory decision making process, jurisdictional error is a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision maker purported to make it: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at [24] (Kiefel CJ, Gageler and Keane JJ). “The question is always one of construction of the legislation: which breaches of a provision does the legislation, either expressly or, more commonly, impliedly, treat as depriving the decision maker of power?”: Hossain at [67] (Edelman J, Nettle J agreeing).

Furthermore, an error will not be jurisdictional unless it could realistically have led to a different outcome, a matter upon which the applicant bears the onus: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [4], [45] (Bell, Gageler and Keane JJ).

The Tribunal’s decision

Having found that Mr Khalil did not pass the character test on account of his “substantial criminal record”, the only issue before the Tribunal was whether to exercise the discretion in s 501(1) to refuse to grant the visa, having regard to the primary and other considerations in Direction 79.

In considering the “protection of the Australian community”, the Tribunal reviewed Mr Khalil’s criminal history and considered that his drug and domestic violence offences were serious and that any repetition of these offences would result in serious harm. It then considered whether there was a risk that Mr Khalil would reoffend in the future.

The Tribunal concluded that the “protection of the Australian community” weighed heavily in favour of exercising the discretion to refuse to grant the visa.

The Tribunal found that the “best interests of the child” consideration weighed against refusing the visa, but considered that there were other factors that diminished its overall weight. The Tribunal accepted that Mr Khalil would play a “positive role in the future with his children”, but observed that, as his relationship with his wife had broken down and she had taken steps to prevent Mr Khalil from seeing the children, the exact nature of that role was uncertain. The Tribunal also observed that Mr Khalil had had limited contact with his second child, who was born 22 days before he was taken into immigration detention. In addition, the Tribunal said at [43] of its reasons:

The applicant contended that his ex-wife is at risk of Huntington’s disease and therefore of limited capability to care for the children but I give this limited weight because, despite carrying the gene, the ex-wife has not been diagnosed with Huntington’s disease and there is no expert evidence as to when she may suffer from the disease in the future.
20 Finally, the Tribunal decided that the “expectations of the Australian community” weighed strongly in favour of refusing to grant the visa. The Tribunal noted that Mr Khalil agreed that neutral weight should be afforded to the remaining factors as he had made no submissions on them. Nonetheless the Tribunal considered that refusing the visa would have a negative impact on Mr Khalil’s ex-wife and afforded this factor positive weight in favour of granting the visa.

Having weighed these various factors in the balance, the Tribunal concluded that the considerations in favour of refusing the visa outweighed those against and so affirmed the decision under review.

The Tribunal found that the “best interests of the child” consideration weighed against refusing the visa, but considered that there were other factors that diminished its overall weight. The Tribunal accepted that Mr Khalil would play a “positive role in the future with his children”, but observed that, as his relationship with his wife had broken down and she had taken steps to prevent Mr Khalil from seeing the children, the exact nature of that role was uncertain. The Tribunal also observed that Mr Khalil had had limited contact with his second child, who was born 22 days before he was taken into immigration detention. In addition, the Tribunal said at [43] of its reasons:

The applicant contended that his ex-wife is at risk of Huntington’s disease and therefore of limited capability to care for the children but I give this limited weight because, despite carrying the gene, the ex-wife has not been diagnosed with Huntington’s disease and there is no expert evidence as to when she may suffer from the disease in the future.
20 Finally, the Tribunal decided that the “expectations of the Australian community” weighed strongly in favour of refusing to grant the visa. The Tribunal noted that Mr Khalil agreed that neutral weight should be afforded to the remaining factors as he had made no submissions on them. Nonetheless the Tribunal considered that refusing the visa would have a negative impact on Mr Khalil’s ex-wife and afforded this factor positive weight in favour of granting the visa.

Having weighed these various factors in the balance, the Tribunal concluded that the considerations in favour of refusing the visa outweighed those against and so affirmed the decision under review.

The reasons of the primary judge

The primary judge did not consider that the Tribunal erred in not accepting Dr Pattni’s opinion.

His Honour held that, although it could derive assistance from Dr Pattni’s opinion, the Tribunal was not bound to uncritically accept it, even in the absence of any contradictory medical evidence (at [34]–[35]). And he did not accept that the Tribunal’s rejection of Dr Pattni’s evidence involved an illogical conclusion that Mr Khalil did not have a remote chance of reoffending. This conclusion, his Honour found, was based on a number of other matters to which the Tribunal referred in its reasons (at [37]). Those matters included Mr Khalil’s lack of insight, his attempts to downplay the seriousness of the domestic violence offence, his refusal to accept that he was guilty of intending to sell and supply drugs, his lack of remorse, and the little regard he had shown for the law as demonstrated by his criminal history.

The appeal

Mr Khalil sought leave to replace the single ground contained in the notice of appeal with two new grounds. One of the grounds, inter alia read as follows:-

The learned primary judge erred in not finding that the Tribunal’s decision is affected by jurisdictional error because the Tribunal failed to consider important or significant evidence and/or failed to consider a relevant consideration and/or constructively failed to exercise its jurisdiction.

Particulars

(a) In considering the mandatory relevant consideration “The best interests of minor children in Australia”, the Tribunal failed to consider the evidence of Dr Pattni going to that issue.

(b) In considering the mandatory relevant consideration “The best interests of minor children in Australia”, the Tribunal failed to consider the evidence relating to the children’s mother’s susceptibility to Huntington’s Disease, and the evidence relating to the children’s susceptibility to Huntington’s Disease.

Issues:-

a) should leave be granted to raise a new ground?

b) did the primary judge err in in not finding that the Tribunal failed to consider the mandatory relevant consideration "The best interest of minor children in Australia"?

Consideration:-

a) should leave be granted to raise a new ground?

The Court’s power to grant leave must be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and Rules: FCA Act, s 37M. That purpose is the facilitation of “the just resolution of disputes... according to law” and “as quickly, inexpensively and efficiently as possible”. It includes objectives such as the just determination of all proceedings before the Court; the efficient use of the Court’s judicial resources; the efficient disposal of the Court’s overall caseload; and the timeous disposal of all proceedings. Dealing with a point for the first time on appeal does not serve those objectives.

Without more, the fact that there has been a change of counsel is insufficient to justify a grant of leave: see, for example, BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176 at [31] (Moshinsky, Steward and Wheelahan JJ); DKT16 v Minister for Immigration and Border Protection [2019] FCAFC 208 at [31] (Davies, Moshinsky and Snaden JJ). Even before s 37M was enacted, the Court’s position was that leave to argue a point not raised before a primary judge should only be granted “if it is expedient in the interests of justice to do so”: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). In VUAX the Full Court observed at [48]:

The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

Requiring an appellant to show that it is expedient and in the interests of justice for an appellate court to grant leave “endeavours to strike an appropriate balance between securing the role of the court at first instance, protecting the integrity of the appellate process, and meeting the needs of justice as understood within the judicial process”: CVRZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 205 at [19] (Kenny, Davies and Banks-Smith JJ). The interests of justice include “the potential vindication of a just outcome” and the gravity of the consequences of the decision is a relevant consideration: MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 at [2] (Allsop CJ). It is true that appeals are not intended to provide an opportunity to conduct a second trial on a different basis than the first (see the discussion in Han v Minister for Home Affairs [2019] FCA 331 at [10]–[18] per Bromwich J and the authorities referred to there). Nevertheless, the predominant consideration must be the interests of justice. In the absence of prejudice to the respondent, the more meritorious the point, the more likely it is that leave will be granted notwithstanding the other considerations which favour its refusal.

Here, contrary to the Minister’s submission, an explanation has been proffered for raising the new point. But it is far from adequate. No evidence was adduced to suggest that the point was not raised below due to incompetence, negligence or even an oversight on the part of Mr Khalil’s former counsel. For all we know, it was the product of a forensic decision. After all, over the Minister’s submission to the contrary, the Tribunal found that Mr Khalil would play a positive role in his children’s lives and decided that it was in the best interests of the children that the discretion to grant the visa be exercised in his favour. On the other hand, for the reasons set out below, we are persuaded that the point is not of doubtful merit and, in the absence of any prejudice to the Minister, we consider it to be in the interests of justice to grant Mr Khalil leave to raise it.

b) Did the Tribunal fall into jurisdictional error by failing to consider Dr Pattni’s opinion concerning the effect of visa refusal on the children?

Mr Khalil submitted that the Tribunal failed to have regard to the evidence in Dr Pattni’s report concerning the risk of behavioural or emotional disorders in children where the father is incarcerated; the risks to the children in the present case owing to their mother’s medical condition; the risks posed by the absence of support from the extended family; the “unanimous research findings” about the internalisation of “at risk” behaviours where a mother is critically unwell and the father absent; and the “mental health burden and unfavourable consequences” of Mr Khalil’s deportation on the children.

The obligation of the Tribunal imposed by s 43(2B) of the AAT Act is to set out its findings on questions of fact it considers material, together with the evidence and other material on which those findings are based. That means that a court is generally entitled to infer that any matter not mentioned in the reasons “was not considered by the Tribunal to be material” to its review: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 346 (McHugh, Gummow and Hayne JJ). In Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67; 309 ALD 67 (Katzmann, Griffiths and Wigney JJ) at [34] the Full Court observed that:-

"The fact that a matter is not referred to in the tribunal’s reasons, however, does not necessarily mean the matter was not considered by the tribunal at all: [Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594] at [31]. The tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the tribunal’s reasons does not necessarily mean that the material was overlooked. The tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the tribunal’s reasons, the findings and evidence that the tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: [Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114] at [52]."

With respect to the first aspect, the subject of particular (a), three preliminary observations should be made.

First, the Tribunal did say in its reasons that it had taken Dr Pattni’s report into account (at [38]). Second, the Tribunal also concluded at [53] that “[n]ot having their father present in their lives will have a negative impact on the children”. Third, Dr Pattni did not take into account a number of matters mentioned by the Tribunal in its reasons, such as the older child having been present at the scene of Mr Khalil’s assault on his mother, the breakdown of Mr Khalil’s second marriage or the mother’s attempt to prevent Mr Khalil having access to the children (presumably because she was not told about them).

Read in context, however, the first statement related to Dr Pattni’s evidence touching on the risk of reoffending. The conclusion that the absence of Mr Khalil would have a negative impact on the children was made without reference to Dr Pattni’s opinion and there is nothing in the reasons to indicate that the Tribunal had regard to that opinion in reaching that conclusion. Finally, the matters mentioned by the Tribunal might well affect the weight the Tribunal might attach to Dr Pattni’s opinion, but they tell us nothing about whether the Tribunal considered the opinion at all.

Having regard to the nature of Mr Khalil’s claims and the findings and evidence set out in the Tribunal’s reasons, it can be readily inferred that, if Dr Pattni’s evidence on this subject had been considered, the Tribunal would have addressed it in its reasons, even if it were then to be rejected or given little or no weight. If consideration had been given to that evidence, at the very least one would expect a reference to her report in this context. After all, the report dealt with her opinion on two subjects, both primary considerations. Yet the Tribunal only adverted to her opinion on one of them. Even on a beneficial interpretation of the Tribunal’s decision read as a whole, the compelling inference is that the Tribunal overlooked the evidence.

The more difficult question is whether the failure to consider the evidence amounted to a jurisdictional error.

Dr Pattni’s opinion was to the following effect. It is well established that behavioural or emotional disorders in children are associated with “paternal incarceration” and the children are at greater risk if their father were to be deported (the likely outcome of refusing a visa on character grounds). The situation would become worse if their mother’s health deteriorated. There is little other family support having regard to the ill-health of the maternal grandmother and the fact that Mr Khalil’s family lives in Egypt. Dr Pattni went on to say:-

- There is an undisputed understanding in the research of child development that any trauma – especially separation anxiety and absence of critical parental figure puts the children at added risk of developmental problems.

- Given the complexity of the situation (noted above), these young boys are already predisposed to a wide array of risk factors for problem behaviours that emerges from the literature of several factual circumstances that can have an undisputed impact on their future development and in particular their mental health wellbeing.

- There are unanimous research findings that can support the internationalization of behavioural problems (at risk behaviours – such as aggressive and rule-breaking behaviour) with mothers who may be critically unwell and with the absence of the father.

- Undisputed evidence children in studies on deportation of the father highlight the associated mental health burden and the unfavourable consequences related to their children. Both the long term and short-term impact on mental health, social and economic has been established.

- The future of these children is of critical concern given the mother’s ability to meet the complex emotional, financial, social, and psychological needs given her medical condition.

- School participation may also negatively be impacted and experiences of mental health symptoms post-parental deportation (i.e., persistent crying, depression, sadness, anger, resentment).

The Minister submitted that the Tribunal accepted that Mr Khalil would play a positive role in his children’s lives and contended, in effect, that it was unnecessary for the Tribunal to repeat the detail of Dr Pattni’s evidence. The Minister argued that the finding of the Tribunal could not have been more favourable to Mr Khalil, particularly in the face of the submission he (the Minister) had made to the Tribunal that Mr Khalil was unlikely to play a positive parental role in the future because of the risk he might reoffend.

The difficulty with this submission is twofold. First, it did not grapple with the evidence itself, which was concerned with the potential impact on the children of an adverse decision — children who are already likely to have been traumatised by their separation from their father during his imprisonment and, one would infer, his absence in immigration detention. Second, while the Tribunal did find, contrary to the Minister’s submission, that Mr Khalil would play a positive role in his children’s future, the failure of the Tribunal to consider Dr Pattni’s opinion may have caused the Tribunal to put less weight on the best interests of the children than it might have done had it taken that opinion into account.

Of course, ignoring material relevant only to fact-finding does not of itself give rise to jurisdictional error: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [97]. As we have already observed, it was not necessary for the Tribunal to refer to every piece of evidence. Moreover, there is a distinction between a failure by the Tribunal to advert to evidence which, if accepted, might have caused it to come to a different finding of fact and a failure by the Tribunal to address a contention which, if accepted, might establish the elements of a statutory claim: WAEE at [44]–[46].

In determining whether it is a jurisdictional error to fail to consider certain evidence, “the fundamental question must be the importance of the [evidence] to the exercise of the Tribunal’s function and thus the seriousness of any error”: SZRKT at [111] (Robertson J), endorsed by the Full Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [70] (Kenny, Griffiths and Mortimer JJ). Moreover, “it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error”: SZRTK at [111].

In our opinion, the evidence of Dr Pattni concerning the potential harm to the children arising from indefinite separation from their father was not insubstantial or inconsequential evidence, even if it the Tribunal might ultimately have accorded it little weight. The Tribunal ought to have taken it into account because it was expert evidence going to a consideration to which the Tribunal was bound to have regard.

Whether or not the error is jurisdictional also depends on whether the evidence is material, that is to say, whether there is a realistic possibility the outcome could have been different had the Tribunal taken it into account: SZMTA at [4], [45] (Bell, Gageler and Keane JJ). In determining the answer to that question, the remarks made in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [174] (Kerr and Mortimer JJ, Allsop CJ agreeing at [1]) must be borne in mind:-

"This Court cannot substitute itself in the undertaking of such an evaluative task. In undertaking an assessment on materiality, where there are reasonable and rational choices to be made in fact finding, it is not appropriate for the supervising court to attempt to place itself in the mind of the Tribunal, and speculate about what would or could have changed a particular Tribunal’s mind. To do so brings the court into the merits of the decision. Rather, the supervising court must assume a Tribunal acting fairly and reasonably, with a mind open to persuasion, would give active and genuine consideration to all matters relevant to its review, including the matter which was erroneously omitted, or misconceived, and which caused it to exceed its jurisdiction. See generally Martincevic v Commonwealth [2007] FCAFC 164; 164 FCR 45 at [67]- [68], Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; 276 FCR 75 at [70]; PQSM v Minister for Home Affairs [2020] FCAFC 125; 279 FCR 175 at [69]- [73]."

Although the Tribunal might ultimately have placed little weight on Dr Pattni’s evidence for any one of a number of reasons, “a Tribunal acting fairly and reasonably, with a mind open to persuasion”, could conceivably have come to a different conclusion if it had taken the evidence into account. That is because the evidence could have affected the weight it attached to the primary consideration of the best interests of the children and therefore the weight it attached to the other considerations: cf. Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13 at [60] (Davies, Rangiah and Cheeseman JJ). By failing to take it into account, the Tribunal failed to complete its statutory task and so fell into jurisdictional error.

It follows that ground 2(a) of the amended notice of appeal is made out.

Conclusion

The appeal should be allowed on the new ground, which was not the subject of the application before the primary judge, that the Tribunal failed to take into account, as it should have, the evidence from Dr Pattni concerning the enhanced risk to the children of mental ill-health and behavioural problems that could ensue if Mr Khalil’s visa application were refused. A writ of certiorari should therefore be issued to quash the Tribunal’s decision and a writ of mandamus to require it, yet again, to consider Mr Khalil’s application according to law.

 

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Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25 (2 March 2022)

Intro:-

This appeal is from a decision of the Federal Circuit Court (as it was then known) delivered in April 2021, which made orders dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal).

Facts:-

The Tribunal had earlier affirmed a decision of a delegate of the first respondent (Minister) to refuse the appellant’s (Ms Dait) application for a Student (Subclass 500) (Class TU) Visa.

Ms Dait’s application fell under s 65(1) of the Migration Act 1958 (Cth) (Act), which required the Minister to consider whether he was satisfied that the criteria prescribed by the Migration Regulations 1994 (Cth) (Regulations) had been satisfied. Ms Dait’s visa was cancelled, and that decision was upheld by the Tribunal, on the basis that Ms Dait did not satisfy the Genuine Temporary Entrant criterion in cl 500.212 of Sch 2 of the Regulations.

The Primary Judgment

Ms Dait sought judicial review on two grounds. Ground 1 alleged that the Tribunal failed to comply with the mandatory requirement under s 425 of the Act to “invite” Ms Dait to give evidence and present arguments in relation to the issues arising on review. Ground 2 alleged that the Tribunal misconstrued and misapplied cl 500.212 of the Regulations by considering subcl 500.212(a) of the Regulations, but failing to take into account and deliberate upon the mandatory criteria in respect of subcll 500.212(b) and 500.212(c). The primary judge dismissed both grounds of review.

Relevantly, in respect of Ground 2, the primary judge found that in the circumstances of the case the Tribunal was not required to refer expressly to subcll (b) and (c) in making a determination: PJ [21]. In reaching this conclusion, the primary judge considered himself bound by two decisions of this Court, namely Vidiyala v Minister for Home Affairs [2018] FCA 1973 and Sanjel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1966: PJ [19].

The relevant provision of the Regulations

Relevantly, cl 500.212 of Sch 2 of the Regulations is in the following terms:

500.212

The applicant is a genuine applicant for entry and stay as a student because:

(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i) the applicant’s circumstances; and

(ii) the applicant’s immigration history; and

(iii) if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

(iv) any other relevant matter; and


(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and


(c) of any other relevant matter.

As is evident from the primary judge’s reasons, cl 500.212 has been the subject of judicial consideration by this Court in a number of recent decisions. Given an understanding of these cases play a critical role in the resolution of the appeal, it is necessary to canvass them in some depth.

Issue:-

a) if a decision-maker is satisfied that a visa should not be granted on the basis that an applicant has failed to satisfy the criterion in subcl (a), must that decision-maker proceed to consider subcll (b) and (c)?

Consideration:-

A review of the authorities

Four cases merit attention in understanding the proper construction of cl 500.212. Each of them is dealt with below chronologically.

Vidiyala v Minister

s might be expected, Vidiyala v Minister for Home Affairs [2018] FCA 1973 concerned an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision by the Tribunal. The Tribunal affirmed a decision of a delegate of the Minister refusing to grant the applicant a visa on the ground that the applicant did not meet the requirements in cl 500.212. Relevantly, Perry J held that the Tribunal’s reasons were not infected by jurisdictional error because there was no need for the Tribunal to consider subcl (c) of the Regulations because the applicant did not satisfy subcl (a).

In reaching this conclusion, Perry J made the following remarks in respect of the operation of cl 500.212 (at [28]):-

"It is apparent from the use of the word “and” at the end of subclauses (a) and (b) of clause 500.212 that the appellant had to satisfy the Tribunal that each of the criteria in (a), (b) and (c) were met. It follows that once the Tribunal found that the criterion in subclause (a) was not met, the Tribunal was required to dismiss the visa application irrespective of whether the criteria in subclauses (b) and (c) were met. It follows that the FCC correctly held that the Tribunal was not required to consider the criteria in clause 500.212(b) and (c) before it could lawfully decide to affirm the delegate’s decision to refuse the application."

(Emphasis in original)
.
Her Honour therefore conceptualised cl 500.212 as what might be described as an “entire requirement”, and considered that this entire requirement would not be satisfied where an applicant failed to satisfy either subcl (a) or (b).

Inderjit v Minister

Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 217; (2019) 272 FCR 528 also concerned an appeal from a decision of the Federal Circuit Court, upholding a decision by the Tribunal to affirm the Minister’s refusal to grant the applicants visas on the basis that they failed to satisfy cl 500.212.

Relevantly, in addressing the construction of cl 500.212, the Full Court (Rares, Burley and O’Bryan JJ) observed (at 535 [30]–[31]):-

"... if the legislation requires a decision-maker to have regard to more than one criterion or factor in making a decision, but gives no fixed weighting to any of them, then none of the factors has any presumptive or fixed weighting in relation to any or all of the other criteria.

The ultimate issue for decision under cl 500.212 is whether the “applicant is a genuine applicant for entry and stay as a student” because he or she meets each of the criteria in cl 500.212(a), (b) and (c). In considering each of criterion (a) and (b), the decision-maker must have regard to each of the prescribed factors for that criterion (so far as it may apply in the circumstances). The Minister, or decision-maker standing in his or her shoes, after considering a valid application for a visa, must grant it, by force of s 65(1)(a)(ii) of the Act, relevantly here, if he or she is satisfied that the criteria prescribed for the visa in the Act and or Regulations have been satisfied."

(Citation omitted).

It is not apparent that the Full Court in Inderjit was referred to, or considered, the reasoning in Vidiyala. However, the decisions are consistent. Both stand for the general proposition that a “genuine applicant” must satisfy the criteria in subcll (a), (b) and (c). The only difference is that Vidiyala articulates the next logical step in the inquiry; that is, subcll (b) and (c) should only be considered if an applicant fulfils the criterion in subcl (a).

Sanjel v Minister

In Sanjel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1966, one of the grounds of appeal advanced was that the primary judge erred in following the reasoning in Vidiyala.

Justice Thawley found (at [16]) that the Federal Circuit Court was bound to apply Vidiyala, and that his Honour should follow the decision given he was not persuaded it was “plainly wrong”: Sanjel (at [17]–[18]). His Honour also held (at [18]) that the statement of Perry J in Vidiyala at [28] (reproduced above at [10]) was “correct”, noting:

A decision-maker who affirmed a decision not to grant a visa on the basis that paragraph (a) of cl 500.212 had not been met would have exercised the jurisdiction entrusted to him or her and would not have failed to exercise or complete the exercise of jurisdiction entrusted to him or her merely by failing to consider whether the paragraphs (b) and (c) were also not met.
17 Once again, Sanjel reaffirms that the component parts of cl 500.212 must be seen as a combined whole.

Eros v Minister

Finally, cl 500.212 was recently considered by this Court in Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061. There, the delegate and the Tribunal considered the applicant’s suitability for a visa under subcl (a) and, upon finding that the applicant did not meet the requirement in subcl (a), did not proceed to consider the applicant’s suitability under subcll (b) and (c).

In considering whether the primary judge erred by failing to find that the Tribunal and a delegate of the Minister misconstrued cl 500.212, the Chief Justice stated (at [8]–[9]) that:-

"It is important to focus on the words of cl 500.212. First, the chapeau contains a whole idea or conception: “a genuine applicant for entry and stay as a student”. This expresses a criterion that will involve value judgments about the applicant and his or her genuineness to enter and stay as a student. The last, emphasised, words were the subject of submissions and debate. They should not be disconnected from the text, structure and purpose of the whole clause.

The expression is followed by the word “because” and a list of various matters in subcll (a)(i)–(iv), (b)(i)–(ii) and (c), to which the decision-maker looks, overall, to come to a state of satisfaction about the contents of the chapeau. A plain reading of cl 500.212 leads to the conclusion that the satisfaction as to whether the applicant is a genuine applicant for entry and stay as a student is reached by reason of the particular criteria in subcll 500.212(a), (b) and (c), and not otherwise.

(Emphasis in original).

While the Chief Justice did not deal with Inderjit, Sanjel or Vidiyala, the above passages reinforce the status of cl 500.212 as a “complete package”.

The Chief Justice then went on to consider how the terms of comparable regulations for a previous Subclass 572 (Vocational Education and Training) Visa were construed. Against this backdrop, his Honour observed (at [14]–[15]):-

"The terms and structure of cl 500.212 require a careful treatment of three distinct criteria: the intention concerning length of stay, that is, that there is a genuine intention to stay temporarily: (a); that there is an intention to comply with any visa conditions: (b); and any other matter relevant to the subject matter, scope and purpose of the clause and grant of the underlying visa. These three considerations all feed in to form an evaluative judgment about whether the person is a genuine applicant for entry and stay as a student."

A close reading of cl 500.212

Like any construction inquiry, the Court must begin and end with the statutory text, read in its statutory context and having regard to its apparent purpose: Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 (at 519 [39] per French CJ, Hayne, Crennan, Bell and Gageler JJ).

The starting point is s 65 of the Act. As Crennan, Bell, Gageler and Keane JJ explained in Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179 (at 188–189 [34]):-

"The decision to be made by the Minister in performance of the duty imposed by s 65 is binary: the Minister is to do one or other of two mutually exclusive legally operative acts - to grant the visa under s 65(1)(a), or to refuse to grant the visa under s 65(1)(b) - depending on the existence of one or other of two mutually exclusive states of affairs (or “jurisdictional facts”) - the Minister’s satisfaction of the matters set out in each of the sub-paragraphs of s 65(1)(a), or the Minister’s non-satisfaction of one or more of those matters."

(Citation omitted).

Hence the section is directed to satisfaction of the existence of the fact identified in the relevant criterion.

The presently relevant criterion, clause 500.212, requires satisfaction of a single state of affairs. It contains one sentence. The conjunction “because” connects the chapeau with subcl (a), implying a relationship of cause and effect: Pearce DC, Statutory Interpretation in Australia (9th ed, LexisNexis Australia, 2019) (at [12.11]). The conjunction “and” also marries subcll (a), (b) and (c), each of which is connected back to the chapeau by the combined conjunctive effect of the terms “because” and “and”. Further, each of subcll (a)(i)‑–(iv) and (b)(i)–(ii) is connected to its parent and, by extension, to the chapeau, by way of a colon or the conjunction “and”. This creates a waterfall effect, brought to a close by the full stop at the end of subcl (c). The combined effect of “because”, “and” and the use of colon unites each composite part of cl 500.212, giving rise to “a whole idea or conception: “a genuine applicant for entry and stay as a student””: Eros (at [8]). This reading is supported by the verb “is” in the chapeau, which encapsulates a single state of being.

In saying this, subcll (a), (b) and (c) nonetheless demand discrete inquiries as a matter of language and can be read and understood in isolation. Accordingly, satisfaction of cl 500.212 requires the cumulative satisfaction of discrete elements. Each of subcll (a), (b) and (c) are integral elements of the criterion. These elements are bookended by conjunctive devices, which reflect the need for the decision-maker to undertake a piecemeal analysis, and for the applicant to satisfy each step in that analysis in order to qualify as “a genuine applicant for entry and stay as a student”. If a decision-maker is not satisfied that an applicant meets subcl (a) or (b) alone, the decision-maker need not continue their inquiry. This is because an adverse finding in relation to either subcl (a) or (b) forecloses any possibility of a favourable outcome.

Reconciling the authorities

In summary, the authorities may be distilled into the following four mutually inclusive propositions:

(1) An applicant is only a genuine applicant for entry and stay as a student pursuant to cl 500.212 of the Regulations if they satisfy subcll (a) and (b), in the light of “any other relevant matter” pursuant to subcl (c): Inderjit (at 535 [31]); Eros (at [8]–[9]); Sanjel (at [18]).

(2) Subclauses (a), (b) and (c) address separate matters and require separate analyses: Eros (at [14]–[15]); Vidiyala (at [28]).

(3) It follows that if an applicant fulfils the criterion in subcl (a), a decision-maker must proceed to subcl (b) in order to exercise their jurisdiction properly: Eros (at [22], [30]–[33]).

(4) An applicant is not a genuine applicant for entry and stay as a student if they fail to satisfy subcl (a), regardless of their satisfaction of subcl (b), and vice versa: Sanjel (at [18]); Vidiyala (at [28]). If a decision-maker is satisfied that an applicant does not meet the criterion in either subcl (a) or (b), they need not proceed further. The decision-making process is complete because the applicant has failed to establish an essential element of the “whole idea or conception” contained in cl 500.212: Eros (at [8]).

Conclusion:-

The primary judge neither misconstrued nor misapplied cl 500.212 of Sch 2 of the Regulations. The appeal must be dismissed with costs.

 

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Pearson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 22 (1 March 2022)

Intro:-

This is an appeal from a decision of the Federal Court of Australia (FCA): Pearson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 825. In that decision, the primary judge dismissed with costs the Appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of a delegate of the First Respondent (the Minister) not to revoke the cancellation of the Appellant’s class TY subclass 444 Special Category (Temporary) visa (visa) under s 501CA(4) of the Migration Act 1958 (Cth) (Migration Act): Pearson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3527 (15 September 2020).

The Appellant seeks orders that the decision of the primary judge be set aside and in lieu thereof, an order be made that the decision of the Tribunal be quashed and a writ of mandamus issue requiring the Tribunal to determine her application according to law. She also seeks costs.

Facts:-

On 17 July 2019, the Appellant’s visa was cancelled under s 501(3A) of the Migration Act (cancellation decision). The Minister was satisfied, on the basis of a National Criminal History check released on 27 March 2019, that the Appellant did not pass the character test because she had a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(7)(c) of the Migration Act and was serving a sentence of full-time imprisonment.

The Appellant made representations, and by letter dated 24 June 2020 was notified that a delegate of the Minister had determined not to revoke the cancellation decision (non-revocation decision). The delegate was not satisfied that the Appellant passed the character test, and was not satisfied that there was another reason why the original decision should be revoked.

The Appellant lodged an appeal with the Tribunal on 2 July 2020. On 15 September 2020, the Tribunal affirmed the non-revocation decision.

The Appellant’s application to the FCA for judicial review was accepted for filing on 22 October 2020. The hearing proceeded on 17 March 2021. The application was dismissed by orders made on 22 July 2021 (FCA Decision).

The Appellant filed her notice of appeal from the decision of the primary judge on 19 August 2021. It proceeded to hearing before this Court on 10 February 2022.

The Tribunal's Decision

The Appellant sought before the Tribunal a review of the non-revocation decision.

Before the Tribunal, the central issue was whether it was satisfied as required by s 501CA(4)(b) of the Migration Act: namely, whether there is another reason the decision to cancel the visa should be revoked. As the Appellant had been sentenced to a term of imprisonment of four years and two months, it was not in dispute that she does not meet the character test.

The Tribunal considered the criteria in Direction No. 79 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No. 79) as required by s 499 of the Migration Act. Having undertaken that exercise, the Tribunal affirmed the non-revocation decision and concluded:-

131. Two of the Primary Considerations; the protection of the community and the expectations of the community weigh against revoking the cancellation of Ms Pearson’s visa, with the expectation of the community weighing heavily against revoking the cancellation of the visa.

132. The best interests of the child weigh slightly in favour of revoking the cancellation of her visa.

133. Of the Other Considerations, Ms Pearson’s ties to Australia and the impediments to her returning to New Zealand weigh slightly in favour of revoking the cancellation.

134. Primary Considerations are generally to be given greater weight than the Other Considerations, and the Tribunal sees no reason to depart from this in the circumstances of this case. As a result, the Tribal [sic] affirms the decision not to revoke the cancellation of Ms Pearson’s visa.

The Primary Judge's decision

By an amended notice of appeal, accepted for filing at the commencement of the hearing, the Appellant’s ground of appeal is in the following terms:-

1. The learned primary judge erred in finding that the Tribunal’s failure to consider an express representation or claim made by the appellant in respect of her two pet dogs was not material to the decision.

Particulars

(a) The Tribunal failed to consider an express representation or claim made by the appellant and supported by probative evidence, being her claim in respect of her separation from her two pet dogs.

(b) The Honourable Markovic J accepted that the Tribunal failed to consider the relevant claim or representation but ought to have found that the Tribunal’s failure was material and amounted to jurisdictional error.

In considering that ground, the primary judge summarised the Appellant’s core contention:-

85. By this ground Ms Pearson contends that the Tribunal failed to consider an express representation or claim she had made which was supported by probative evidence. That is, that separation from her two pet dogs, Oscar and Walter, was another consideration to be taken into account in the decision whether to revoke the Cancellation Decision.

The primary judge then considered the parties’ submissions. The primary judge noted that the Appellant’s contention was that the evidence before the Tribunal was “replete with references to the two dogs”, and “by their omission from the Tribunal’s decision record, there is no meaningful consideration, let alone any active intellectual engagement by it, with respect to Oscar and Walter”: [87]. The primary judge also identified the Appellant’s alternative submission that “it ought to be inferred from the Tribunal’s failure to refer to evidence about Oscar and Walter in its reasons for decision that it failed to consider that material”.

In summarising the Minister’s position, the primary judge identified the key submission as being that “there is no necessary inference that Ms Pearson’s evidence about her dogs was overlooked by the Tribunal, as opposed to regarded as of little significance”, and, in the alternative, “even if the Tribunal had overlooked that evidence, it was insignificant and not material to the Tribunal’s decision”.

The primary judge then observed:-

"The first issue that arises is whether the Tribunal in fact overlooked the evidence concerning the two dogs, as Ms Pearson contends, or whether an inference can be drawn that the Tribunal took the material into account but considered that the claim was not sufficiently significant to require the Tribunal to refer to it expressly."

The primary judge set out the relevant principles at [93]–[95]. Her Honour acknowledged the concession by the Appellant that she did not make an express claim or submission before the Tribunal as regards her being separated from her two dogs, and turned to the question of whether representations made by the Appellant “were sufficiently significant or relevant to require the Tribunal to expressly consider them as part of its consideration of the impediments to Ms Pearson’s removal or whether the inference urged by the Minister can be drawn”: [97]. The primary judge then reasoned as follows:-

"I am satisfied that the impact of separation from Walter and Oscar was a sufficiently clearly articulated claim. As I have already observed, and as demonstrated by the matters set out at [97] above, the fact of ownership of the two dogs, that she considered them her family and that she would be upset by her separation from them were referred to in parts of the evidence that was before the Tribunal. The material was not vague or fleeting. The same matters, namely Ms Pearson’s connection to her two dogs and the impact of removal from them, was raised by a number of different witnesses who had observed Ms Pearson as well as, significantly, in Ms North’s report and Ms Pearson’s own statement. The question of separation from Oscar and Walter went to the issue of impediments to removal from Australia and whether there was another reason to revoke the Cancellation Decision. The Tribunal ought to have both considered and addressed that claim. It may have been open for the Tribunal to find that Ms Pearson could have arranged to have the dogs transported to New Zealand but that was a matter about which the Tribunal should have made a finding by reference to the available evidence.

I would not infer that the Tribunal considered the material and took it into account but formed the view that it lacked sufficient significance or relevance such that it was not required to refer to it in its reasons. Rather, the fact that the representations, which were both sufficiently significant in the context of all of the representations made in support of revocation and made with sufficient clarity, were not referred to and addressed in the Tribunal’s decision record at all leads me to draw the contrary inference. That is, that the Tribunal did not consider the material. Unlike its consideration of risk to the Australian community (see [75]-[83] above), the Tribunal did not refer to the claim about the two dogs at all in its reasons, as distinct from merely omitting reference to specific material relating to that claim. No inference of the kind drawn in relation to ground 3 can be drawn here."

Having concluded that the Tribunal did not consider the Appellant’s claims as regards her two dogs, the primary judge then addressed the question of materiality, namely whether the failure by the Tribunal to consider the claim about her two dogs was material to its decision not to revoke the cancellation decision. Her Honour summarised the Appellant’s contention in this regard as being that:-

" ... her relationship with her dogs was not of marginal consideration: it was a claim properly made in her representations to the Department; was treated as an impediment to her return by the delegate; and is on par with the inability to transport her computer equipment and her relationship with Mr Farrow and her friends as a matter to be taken into account and which could affect the outcome."

In her consideration of materiality, the primary judge relied on MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; [2021] HCA 17 (MZAPC) at [102]–[103] (Kiefel CJ, Gageler, Keane and Gleeson JJ). Her Honour correctly understood that she was required to resolve the factual hypothetical; in this case whether the failure of the Tribunal to consider the issue deprived the Appellant of the “realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred”: MZAPC at [2].

In applying those principles, the primary judge reasoned at [104]–[105] that the claimed impediments to removal were considered by the Tribunal as weighing slightly in favour of revoking the cancellation decision, and in that context the matters expressly relied upon were “of much higher priority” than the relationship of the Appellant with her two dogs. This led her Honour to conclude at [106] that the Appellant had failed to establish “on the balance of probabilities that a different conclusion could have been reached in relation to the impediments to removal”. Accordingly, the primary judge held that the failure of the Tribunal to mention the impact of separation from her two dogs was not a material error.

Appellant's Submissions

The Appellant submits that the primary judge considered the totality of her representations before the Tribunal, accepted that the Appellant had a close bond with her two dogs and correctly held that the impact on her of separation from her two dogs was a sufficiently clearly articulated claim.

As regards the Minister’s notice of contention and in the course of oral submissions, Counsel for the Appellant, Ms Zhou, did not dispute the general proposition that “a Tribunal does not need to specifically mention every item of evidence or every submission put to it”: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 (Applicant WAEE) at [46]; Minister for Home Affairs v Buadromo (2018) 267 FCR 320; [2018] FCAFC 151 at [48]–[49]. However, Counsel for the Appellant submitted that the Minister’s contention should be rejected on the basis that “[t]he complete absence of any reasoning at all ... from the Tribunal about a matter that was clearly articulated leads more logically and more probably to the inference that it was not considered.”

On the ground of appeal, the Appellant submitted that the primary judge erred in not resolving the materiality question in her favour, emphasising in particular that the materiality test sets a “low bar” by reference to DMQ18 v Minister for Home Affairs (2020) 278 FCR 529; [2020] FCAFC 110 at [113]–[114]. The gravamen of the Appellant’s submission was that her representations made to the Minister, as in evidence before the Tribunal, were not of marginal significance and were directly relevant to the extent of impediments she may suffer in the event of removal. As the Tribunal gave no consideration to the relationship between the Appellant and her two dogs together with the claimed impact upon her mental health that would result from separation, the Appellant contended that the primary judge wrongly concluded that she had not been deprived of a realistic possibility of a different outcome.

Minister’s Submissions

In the Minister’s written outline dated 3 February 2022, Counsel for the Minister, Mr Reilly, submitted that “her Honour’s conclusion that the Tribunal has entirely overlooked the Appellant’s claim about her dogs is not the more likely inference” and continued:

23. ... As submitted to her Honour by the Minister, it is not apparent that the appellant could not arrange to have her dogs sent to New Zealand if she wished: Ms North’s report only reported the appellant as saying that this was “unlikely...due to financial constraints”, but this is speculative in the absence of the cost being identified. Given the appellant was already separated from her dogs due to being in prison (and subsequently immigration detention) since 12 October 2018, and did not rely on separation from them in her detailed submissions to the Tribunal, it is understandable that the Tribunal does not expressly mention them. There is no necessary inference that her evidence about her dogs has been overlooked by the Tribunal, as opposed to regarded as of little significance. The Tribunal did not need to specifically mention every item of evidence or every submission put to it, or provide a “line by line” refutation of the appellant’s claims: see MHA v Buadromo (2018) 267 FCR 320 at [48-49]; Navoto v MHA [2019] FCAFC 135 at [88].

On the question of materiality, the Minister in substance adopted the reasoning of the primary judge.

Issues:-

Accordingly, before the Court for consideration is:

(1) the Appellant’s notice of appeal challenging the finding of the primary judge that the failure of the Tribunal to consider the Appellant’s claim regarding her separation from her two dogs was not material to the Tribunal’s decision to not revoke the cancellation decision; and

(2) the Minister’s notice of contention that the decision of the primary judge should be affirmed but on grounds other than those relied on by the primary judge, namely that the Tribunal did not overlook the Appellant’s representation or claim regarding her separation from her two dogs.

In circumstances where the acceptance by the Court of the Minister’s contention would dispose of the need to make a finding as to the question of materiality, it is convenient to first deal with that issue.

Consideration:-

In support of the notice of contention, Mr Reilly for the Minister in oral argument correctly observed that the Appellant was legally represented before the Tribunal and framed her case in accordance with a detailed Statement of Facts, Issues and Contentions dated 26 August 2020 (the Appellant’s SFIC). The Appellant’s SFIC did not mention her relationship with her dogs and did not assert any psychological impact that may occur as the result of separation from her dogs. Nor were any claims to that effect advanced in oral submissions before the Tribunal. In short compass, Mr Reilly submitted that:-

"[t]he preferable inference, we say, is that it was simply such a minor matter by the time the matter had been argued before the Tribunal that the preferable inference is just the Tribunal didn’t think it necessary to specifically mention it."

Importantly, counsel for the Minister in oral argument confirmed that the notice of contention did not go so far as to assert that there was no jurisdictional error by the Tribunal in not referring to a matter that was not agitated before it.

As we have noted, there was before the Tribunal, in the representations of the Appellant, material relevant to the psychological and emotional impact of separation from her two dogs. In its decision, the Tribunal carefully considered each contention put to it on behalf of the Appellant when addressing the “other considerations” set out in clause 14(1) of Direction No. 79 and which the primary judge summarised at [22]–[26] of her reasons. Specifically, the Tribunal, in considering the extent of impediments if removed, did not accept the Appellant’s contention that separation from her friends and her partner would significantly and adversely impact on her mental health. The Tribunal reasoned that mental health services and welfare support are available in New Zealand and that overall, the Appellant “has some impediments to re-establishing herself in New Zealand, however these are not insurmountable, and this factor weighs slightly in favour of revoking the cancellation of her visa”: [130].

The content of any statutory obligation to give reasons for a decision is relevant to the question of what, if any, inferences may be drawn from a decision-maker’s statement of reasons vis a vis the apparent absence of any reference to, or findings on, particular claims or evidence. Where reasons are given in writing, s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (which applied in this case) imposes an obligation on the Tribunal, to “include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.” An obligation in such terms has been held to require that the Tribunal set out the findings of fact which it subjectively considers to be material: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (Yusuf) at [68] (by analogy). The consequence is that this Court on judicial review is entitled to take the reasons of the Tribunal as setting out the findings on each matter which it considered material to its decision and is entitled to “infer that any matter not mentioned [in the statement of reasons] was not considered by the Tribunal to be material” : Yusuf at [69]. Similarly, Gleeson CJ in Yusuf at [5] explained that:-

"When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal’s decision, in the light of the statutory requirements contained in s 430 [of the Migration Act]. The Tribunal is required, in setting out its reasons for decision, to set out “the findings on any material questions of fact”. If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter, and that in turn, may indicate that the Tribunal did not consider the matter to be material."

(Emphasis added.)

See also e.g. ETA067 v Republic of Nauru (2018) 92 ALJR 1003; [2018] HCA 46 at [13] (Bell, Keane and Gordon JJ).

Conversely as Gleeson CJ also held at [10], by setting out its findings, and thereby exposing its views on materiality, the Tribunal’s reasons may disclose (relevantly) a jurisdictional error.

Furthermore, in Applicant WAEE, the Full Court of this Court (French, Sackville and Hely JJ) in two oft cited passages at [46]–[47], explained (in the context of a decision by the then Refugee Review Tribunal to affirm a decision refusing the grant of a protection visa to the appellant):-

"It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [87]- [97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked".

Thus, while s 501CA of the Migration Act imposes an obligation upon the Minister, and the Tribunal on review, to consider an applicant’s representation, it does not follow that every statement contained therein is of itself a mandatory consideration with the consequence that a failure to consider some aspect of the representations amounts to jurisdictional error: Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531; [2018] FCAFC 116 at [67]–[69]; EVK18 v Minister for Home Affairs (2020) 274 FCR 598; [2020] FCAFC 49 at [10] and Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 at [34]–[36].

In this case, we are not persuaded that the Appellant discharged her onus of establishing on the balance of probabilities that the Tribunal overlooked a material representation advanced by the Appellant.

In her Honour’s reasons addressing ground 4 of the judicial review application, the primary judge at [95] correctly stated that:-

"The question of whether a claim amounts to a “clearly articulated and substantial or significant representation” so as to give rise to an obligation on the Tribunal to consider and address it has been described as a “fact sensitive inquiry”: Kwatra v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 58 at [34].

In this regard, we agree with the primary judge that the separation impact issue was a sufficiently clearly articulated claim to require the Tribunal to consider it, given the representation made by the Appellant to the Minister pursuant to s 501CA(3)(b) of the Migration Act which was therefore also before the Tribunal."

However, with respect, contrary to her Honour, in our view there was no reason why the Yusuf inference should not be drawn, given the way in which the Appellant presented her case before the Tribunal. In our view, the primary judge at [98]–[99] erred in placing too much emphasis upon the content of the relevant representation, when the correct approach in this case required careful attention to the case that the Appellant sought to make to the Tribunal. Significantly, the Appellant’s legal practitioner, in formulating her SFIC before the Tribunal, comprehensively addressed each of the impediments the Appellant contended she would or may suffer if removed at paragraphs [65]–[67] and listed a number of miscellaneous considerations at paragraph [68] but made no contention that the impact of separation from the Appellant’s dogs was at all relevant. Nor did the Appellant adduce any evidence before the Tribunal as to the costs of relocating the dogs to New Zealand and her inability to meet such cost. Viewed in that context, we are not satisfied that the Appellant established that the Tribunal’s failure to mention her claims about her relationship with her dogs and the mental health impacts for her if she was returned to New Zealand and separated from them should have founded the inference that the Tribunal failed to consider these claims.

Conclusion:-

For these reasons, we uphold the Minister’s notice of contention and dismiss the appeal.

 

Added a post 

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v DOM19 [2022] FCAFC 21 (28 February 2022)

Intro:-

This appeal raises a question concerning the proper construction of s 500(6H) of the Migration Act 1958 (Cth).

Facts:-

The background to this proceeding is set out in the Reasons of the primary judge: see DOM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 862 at [5]- [7]:

In or around 1994, the applicant was born in South Sudan. In 2004, the applicant was granted a humanitarian visa and arrived in Australia. He remains in Australia. Between 22 June 2012 and 24 November 2017, the applicant was convicted of a number of criminal offences. On 16 January 2018, a delegate of the Minister cancelled the applicant’s visa under s 501(3A) of the Act. The applicant made representations for the cancellation to be revoked. On 21 September 2018, a delegate of the Minister (delegate) determined not to revoke the cancellation of the applicant’s visa.

On 27 September 2018, the applicant applied to the Tribunal for review of the delegate’s decision. It is not in contest that, as required by s 500(6F), the Minister lodged with the Tribunal copies of the documents in the Minister’s possession relevant to the making of the delegate’s decision which the Tribunal’s reasons refer to as the “G documents”. On 11 October 2018, the Tribunal made directions, including a direction that the applicant file submissions and any further evidence on which he proposed to rely at the hearing and serve a copy on the Minister by 22 November 2018. The applicant did not file any submissions, nor did he submit any further evidence prior to the Tribunal hearing held on 3 December 2018. However, immediately before the hearing commenced, the Tribunal was informed that the applicant’s partner and his former teacher were present and that the applicant, who was self-represented, wanted to call them as witnesses. The Minister did not object to the former teacher giving evidence on account of the fact that the documents before the Tribunal included a letter written by the teacher. Objection was taken, however, to the Tribunal receiving any evidence from the applicant’s partner. The Minister submitted to the Tribunal that s 500(6H) of the Act prevented the applicant from calling his partner as a witness because she did not provide a witness statement to the Minister two clear days prior to the hearing.

The Tribunal determined not to permit the applicant’s partner to give evidence.

Section 500(6H) of the Migration Act relevantly provides:

500 Review of decision

...

(6H) If:

(a) an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and

(b) the decision relates to a person in the migration zone;

the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

There was no debate between the parties before the primary judge that the factual preconditions in s 500(6H)(a) and (b) were met: Reasons at [5].

Section 500(6J) should also be set out:

(6J) If:

(a) an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and

(b) the decision relates to a person in the migration zone;

the Tribunal must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. However, this does not apply to documents given to the person or Tribunal under subsection 501G(2) or subsection (6F) of this section.

Decision of Primary Judge

The primary judge framed the question of construction in the following way at [13]-[14] of the Reasons:-

The issue for determination is therefore this: Does s 500(6H) require that the Tribunal must not have regard to information from a witness unless a written statement outlining the evidence of that witness has been provided to the Minister at least two business days prior to the Tribunal’s hearing?

If the answer to that question is yes, the Tribunal did not misconstrue s 500(6H) and its decision to refuse to receive the evidence of the applicant’s partner was free of error. Subject to the issue of materiality later discussed, if the answer is no, the Tribunal misconstrued s 500(6H) of the Act, denied the applicant procedural fairness and jurisdictional error would be established.

The primary judge held the answer to this question was “no”. His Honour drew a distinction between notice being given about the “content” of information and notice being given about the information’s “source” (i.e., the particular witness): see Reasons at [33], read with [42]-[47]. His Honour found prior notice of the “source” need not always be given; it would depend on whether proper notice of the source was “critical to the sufficiency of the notice necessary to be given to the Minister to avoid the Minister being forced into calling for an adjournment of the hearing”: Reasons at [45]-[46]. His Honour rejected the Minister’s contention that “statement” should be read as though it means “witness statement”: Reasons at [41].

Subject to circumstances where the source was critical, his Honour found all that needed to exist in the materials before the Tribunal were “written communication[s] asserting particular facts about a situation, person or event”: Reasons at [40].

Applying this construction to the facts, the primary judge found that the Tribunal had misconstrued s 500(6H) by construing it as always requiring prior notice of the source of the information to be presented orally, and by requiring that there must be a written statement outlining the evidence to be given: Reasons at [48].

In the circumstances before the Tribunal, no advance notice had been given that the first respondent sought to call his partner to give oral evidence. At [17] of the Reasons, the primary judge set out the first respondent’s contention about where in the material before the Tribunal there were written statements sufficient to comply with s 500(6H), on the construction for which the first respondent contended:

The applicant submitted that the oral evidence of his partner should have been heard and taken into account to the extent that it substantively conformed to what had previously been set out in written statements provided to the Minister. The applicant referred to various information which the applicant’s partner could have addressed contained in the documents before the Tribunal (and of which the Minister had prior notice), including:-

- descriptions of the applicant’s relationship with his partner and her children in the statement of personal circumstances in the applicant’s application to revoke the cancellation of his visa; and

- a record of an interview with the applicant describing his relationship with his partner.

The documentary materials before the Tribunal also included a personal statement from the applicant in which he expressed his remorse about his misconduct and the hurt caused to his family. On the applicant’s contention, each of those documents contained information set out in a written statement and provided to the Minister within the meaning of s 500(6H).

Although later in his reasons the primary judge does not make an express finding about where in the materials before the Tribunal the written statements were, it appears that his Honour accepted the first respondent’s contention, which he had extracted at [17]. In other words, the primary judge considered s 500(6H) was not engaged because there were, in the materials already before the Tribunal, “written communication[s] asserting particular facts about a situation, person or event”, that being his Honour’s conclusion of what s 500(6H) required: Reasons at [40].

The primary judge admitted, over the Minister’s objection, an affidavit from the first respondent’s partner about the evidence she would have given to the Tribunal if permitted to do so. His Honour found at [53] that:-

"the applicant’s partner would have given evidence about a broad range of matters, including her relationship with the applicant, her children and how they might be affected if he were deported."

The primary judge relied on this affidavit to find the Tribunal’s error was material and therefore jurisdictional, although this passage also illustrates the breadth of the evidence that was proposed to be given by the first respondent’s partner.

Issue:-

Does s 500(6H) require that the Tribunal must not have regard to information from a witness unless a written statement outlining the evidence of that witness has been provided to the Minister at least two business days prior to the Tribunal’s hearing?

Consideration:-

The Minister contends on the appeal that the primary judge erred in the construction he gave to the prohibition in s 500(6H). The Minister submits that s 500(6H):-

"prevent[s] the Tribunal having regard to information from a witness unless a written statement outlining the evidence of that witness has been provided to the Minister at least two business days prior to the Tribunal’s hearing."

(Original emphasis.)

The Minister makes the following submissions in support of his overall contention:

(a) The use of the word “statement” in the provision does not suggest any particular form of document, in the sense that there need not be a signature, nor any affirmation: see Mordechai v Minister for Immigration and Citizenship [2011] FCA 986; 196 FCR 509 at [38]- [39].

(b) However, Parliament’s use of the term “written statement” means what it says, especially since s 500(6J) uses “document” in quite a different context. Therefore, a review applicant must provide, at least two days before a review hearing, a written statement setting out the information to be given by a particular witness. A “piecemeal” collection of documents already in existence before the Tribunal does not suffice.

(c) The Tribunal’s procedures for receiving evidence inform the construction of s 500(6H), even if the Tribunal is directed to conduct its proceedings with as little formality and technicality as consideration of the matter before the Tribunal permits. The use of the word “statement” in s 500(6H) should be construed accordingly to mean “a document containing or outlining the evidence to be given by a particular (and identified) witness”.

These submissions and the Minister’s overall contention should be accepted. In our opinion, they reflect the basic requirement imposed by the provision which is evident from the text and context of the prohibition, without any artificiality or strained approach being applied. There may be some nuances in its application to particular circumstances: see DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 229 at [69]. However, as the High Court made clear in Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203, s 500(6H) should not be construed to restrict the flexibility of the Tribunal to ensure procedural fairness to the parties to a review beyond what is required by its terms. The provision does not fetter the power of the Tribunal to adjourn a review, so as to ensure that the review is conducted thoroughly and fairly: Uelese at [57], [70], [77].

The Minister’s comparison with the text of s 500(6J) is justified and important. The two provisions must be read together. When that is done, it is clear that Parliament intended the two provisions to cover all the categories of material likely to be before the Tribunal on a merits review of a decision under s 501 or s 501CA(4) of the Migration Act, and to impose some restrictions across all those categories of material.

In particular, Parliament’s choice of the phrases “information presented orally in support” and “written statement given to the Minister” in s 500(6H) on the one hand, compared with the phrases “any document submitted in support” and “a copy of that document” in s 500(6J), makes it clear that s 500(6H) is directed towards witness testimony and s 500(6J) is directed towards all other forms of material before the Tribunal. Counsel for the first respondent on the appeal is correct to note that the term “document” includes material wider than written information. The word is not relevantly defined in the Migration Act, but the Acts Interpretation Act 1901 (Cth) provides an extended definition in s 2B:

document means any record of information, and includes:

(a) anything on which there is writing; and

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and

(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and

(d) a map, plan, drawing or photograph.

Thus, all material falling within this definition, including written information, is covered by the restriction in s 500(6J).

Witness testimony – oral testimony in chief – is the subject matter of the restriction in s 500(6H): Uelese at [104]. Oral submissions do not fall within s 500(6H): Uelese at [103]-[104].

In addition to Uelese, the Minister relied on DCR19 at [68] and [73], SZRTN v Minister for Immigration and Border Protection [2014] FCA 303; 141 ALD 395 at [70], and SZRTN v Minister for Immigration and Border Protection [2014] FCAFC 129 (SZRTN (Full Court)) at [27], all of which the Minister submits are consistent with these contentions.

The following points emerge from these authorities:

(a) A witness may give evidence orally which expands upon what is in a statement so long as they do not stray outside the subject matter of the statement, fairly understood: see SZRTN at [70].

(b) In any given review, the application of s 500(6H) may be somewhat iterative. Where there has been some compliance with s 500(6H), the restriction may nevertheless apply to some parts of a witness’s oral evidence. Through a process of adducing oral evidence and objections, the Tribunal may need to form a view about which, if any, oral evidence departs, in a substantive way, from the content of any written statements: see DCR19 at [71]; SZRTN (Full Court) at [27].

(c) Section 500(6H) does not require a written statement to be in any particular form. Its purpose is to give fair notice to the Minister of what a review applicant’s case will be, and to prevent a circumstance arising in which the Minister is taken by surprise by late changes or additions to an applicant’s case: DCR19 at [58]. See also Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318; 111 FCR 378 at [25].

(d) The restriction does not impede cross-examination, nor questioning by the Tribunal itself: Uelese at [59].

(e) Section 500(6H) does not deny a review applicant an “entitlement” to rely upon evidence adduced by the Minister or elicited by the Tribunal itself, if that evidence happens to be supportive of the applicant’s case: Uelese at [72].
24 The dictionary meaning of “statement” as including a “communication” or “document” does not take the task of determining the correct meaning of s 500(6H) any further. This is a situation where the statutory term is not just “statement”, but a larger phrase. The whole phrase, which has as its subject “any information presented orally”, is “set out in a written statement given to the Minister...”. In that context, it is clear that Parliament intends to refer to a document that records in writing the substance of what a person will say when that person gives oral testimony to the Tribunal. It must also be a statement that is “given” to the Minister, being a verb that requires some kind of advance notice to the Minister in a positive sense, about what testimony a person is proposed to provide in support of the review of the applicant’s case.

It does not have to be a statement made by the person who will give evidence; for example, it could be an outline provided by a migration agent or lawyer on behalf of a review applicant, or by a review applicant themselves in a letter or an email. The “written statement” might provide an outline of what more than one person will say. The terms of s 500(6H) are not prescriptive about these matters.

The construction advanced by the Minister, and which we consider to be correct, has nothing to do with “perfection”, contrary to the first respondent’s submissions. While the written statement must “set out” the information in support to be given orally, no excessive or unreasonable scrutiny should be applied to the content of the written statement. Otherwise, the point of calling a person to give oral evidence would be defeated: SZRTN at [70].

The Minister also submits that the primary judge’s construction of s 500(6H) would give rise to significant uncertainty and impracticality, and contends that a construction which would lead to such anomalous results should not be adopted without clear and cogent language to that effect:

Without some written indication of the evidence to be given by each particular witness, the Minister will not be in a position to effectively identify the case that they are required to meet, nor to assist the Tribunal in identifying the evidence to which it is permitted to have regard under s 500(6H). If a ‘written statement’ merely means that evidence consistent with that anticipated to be given by a witness has been recorded in writing at some point in the material provided to the Tribunal (even if, as in this case, that material records the evidence of a completely different person), then the resolution of any objection to evidence in chief under s 500(6H) will require parties and Tribunal alike to scour the entirety of the written material before the Tribunal to determine if anything equivalent has ever been recorded in writing at any previous point. Parliament cannot and should not be taken to have intended that s 500(6H) should require a prolonged, complex and potentially contested inquiry of that kind without clear language to that effect.

(Original emphasis.)

We agree. The Tribunal operates in a practical and pragmatic jurisdiction, with many self-represented litigants who also need to comply with its processes and any statutory restrictions or directions. It operates under a great deal of time pressure (including time limits imposed under this Act for the conduct of these kinds of reviews: see Migration Act s 500(6L)), with a high volume of reviews to conduct. Provisions regulating its processes must be construed in that context. In this legislative scheme, it is unlikely Parliament intended that the application and operation of the restriction in s 500(6H) could only be understood after an exhaustive search of all the material before the Tribunal, and the piecing together of bits of information from different sources to see if they correlate with the proposed oral evidence of a witness.

The Tribunal’s refusal to allow the first respondent’s partner to be called at all

There was some suggestion in the first respondent’s submissions that the Tribunal erred in not permitting the first respondent’s partner to give oral evidence at all. In the circumstances of this review, and given the construction of s 500(6H) which we consider to be correct, there was no error in the approach taken by the Tribunal.

Adjournment of the review if s 500(6H) is not complied with

As the Tribunal itself recognised in the transcript of the hearing of the review, the Tribunal has a discretion to adjourn the review so that a notice in accordance with s 500(6H) can be given. The Minister submitted an exercise of power of that kind would defeat the purpose of s 500(6H). We do not accept that submission. These are matters to be determined by the Tribunal on a case-by-case basis, with the ultimate objective of ensuring, as the plurality said in Uelese at [73], the fair conduct of the review hearing. Much will depend on the particular facts of the review hearing, and the course of conduct leading up to it.

Ultimately, in this case the Tribunal did not adjourn the review. That was a matter for its discretion.

Conclusion:-

The appeal be allowed.

#

Added a post 

FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 (22 February 2022)

Intro:-

The appellant is a citizen of New Zealand who has lived in Australia since he was a young child. He is now 33 years of age. By reason of his conviction and sentencing for grievous bodily harm in 2017, his visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). Power is conferred by s 501CA(4) to revoke the visa cancellation if the Minister is satisfied that there is reason to do so. A delegate of the Minister was not so satisfied and the cancellation was not revoked. The appellant sought review in the Administrative Appeals Tribunal.

Facts:-

In deciding whether to revoke the visa cancellation, the Tribunal was required to perform its function and exercise the power to revoke in accordance with any directions given by the Minister under s 499 of the Migration Act. At the time, there was such a direction in place being Direction 79 - Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (Direction 79). Amongst other things, the direction identified the considerations relevant to former visa holders in determining whether to exercise the revocation power under s 501CA(4).

The Tribunal affirmed the decision of the delegate. The appellant then sought review in this Court on the basis of alleged jurisdictional error. The alleged error concerned the Tribunal’s understanding of what was required by Direction 79 when it came to weighing the relevant considerations specified in the direction.

A judge of this Court found that the Tribunal had misconceived what was required by Direction 79 when it came to the process of weighing up or balancing the relevant considerations but that the error could not realistically have affected the result. Therefore, on the basis that the error was not material, the application for review was dismissed.

Direction 79

The written submissions for the Minister stated that it is not contentious that non-compliance with Direction 79 may constitute jurisdictional error. In the course of the hearing it was accepted by counsel for the Minister that a failure to comply with the direction’s express requirements as to the considerations to be brought into account and the manner in which those considerations were to be weighed in deciding whether to revoke a visa cancellation would be jurisdictional. This position accords with a number of recent Full Court decisions concerning such directions: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; (2020) 274 FCR 646 at [29] (Derrington and Thawley JJ); PQSM v Minister for Home Affairs [2020] FCAFC 125; (2020) 279 FCR 175 at [90] (Banks-Smith and Jackson JJ), compare [29]‑[45] (Mortimer J); and Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [179] (O’Bryan J, Katzmann J agreeing).

The issues raised concerned precisely what was required by Direction 79 when it came to weighing or balancing the relevant considerations specified in the direction when exercising the power conferred by s 501CA(4). In that regard, the following aspects of Direction 79 may be noted:

(1) The direction describes its contents as comprising, relevantly:
Preamble Contains the Objectives of this Direction, General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a non-citizen’s visa under section 501 or to revoke a mandatory cancellation under section 501CA.

...

Part C Identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa.

(2) The Preamble sets out ‘General Guidance’ in para 6.2. It includes a statement that ‘factors that must be considered in making a revocation decision [under s 501CA] are identified in Part C of this Direction’.

(3) The Preamble also sets out certain ‘Principles’. They include the following two Principles at para 6.3(5) & (7):

Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

...

The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

(4) There is a further statement in para 7 of the Preamble as to how the relevant discretion is to be exercised. Relevantly for present purposes it says:

Informed by the principles in paragraph 6.3 above, a decision-maker ... must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a noncitizen’s visa will be revoked.

(5) Then para 8 of the Preamble says:

Taking the relevant considerations into account

(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders; and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4) Primary considerations should generally be given greater weight than the other considerations.

(5) One or more primary considerations may outweigh other primary considerations.


(6) Part C specifies three primary considerations, namely:

a) Protection of the Australian community from criminal or other serious conduct;

b) The best interests of minor children in Australia;

c) Expectations of the Australian community.


(7) Part C also specifies other considerations which ‘must be taken into account where relevant’, namely:

a) International non-refoulement obligations;

b) Strength, nature and duration of ties;

c) Impact on Australian business interests;

d) Impact on victims;

e) Extent of impediments if removed.


It can be seen that Direction 79 specifies considerations which must be taken into account by a decision-maker such as the Tribunal in exercising the power conferred by s 501CA(4) to revoke a visa cancellation. The direction also differentiates between ‘primary and other considerations’. All specified considerations must be taken into account where relevant. However, when it comes to weighing those considerations, Direction 79 expressly requires that primary considerations should generally be given greater weight than the other considerations.

The ordinary meaning of the word ‘generally’ deployed in the manner in which it is used in the direction is to describe what is required in most instances. As was observed by the primary judge it conveys no more than ‘usually’, ‘commonly’ or ‘ordinarily’: at [23]. Therefore, as a matter of proper construction of the terms of the direction, the requirement to ‘generally’ give greater weight to the primary considerations means that there must be some matter specific to the circumstances of the case for giving one of the other considerations greater weight than any of the primary considerations before that can occur. Put another way, a decision could not be made on the basis that one of the other considerations, such as the strength, nature and duration of ties to Australia, was a matter that was inherently a matter to be given more weight than one or more of the primary considerations. Rather, there must be a reason, in the particular case, why the ‘other consideration’ is to be given greater weight than it would usually be given (being less weight than the primary considerations).

The relevant reasoning of the Tribunal

After setting out the relevant provisions of Direction 79, the Tribunal said at paras 54‑55:

In Suleiman v Minister for Immigration and Border Protection Colvin J, in applying the identical provision to Paragraph 8(3) in the precursor Direction 65 stated that while generally primary considerations should be given greater weight, the Direction:-

"... requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

An evaluation of the factors occurs in the context of the circumstances of the individual case, and while the primary considerations may outweigh the other considerations in accordance with paragraph 8(3), other considerations can outweigh the primary consideration in the particular circumstances of the case."

(footnotes omitted)

There was no criticism of this aspect of the Tribunal’s reasons. Twice it refers to ‘paragraph 8(3)’ of Direction 79. It may be noted that para 8(3) deals with primary and other considerations and how they may weigh in favour of or against revocation of a visa cancellation. As we will see, the particular issue for the Tribunal was how to undertake the task of weighing those considerations being a matter addressed by para 8(4) and (5).

The Tribunal then undertook an extensive and careful review of the material concerning each of the considerations referred to in Direction 79 and reached certain conclusions as to the degree of weight to be given to each of them.

As to the primary considerations, after evaluating the nature and seriousness of the appellant’s conduct to date as part of addressing the primary consideration of protection of the Australian community, the Tribunal said ‘the nature and seriousness of [the appellant’s] conduct weighs heavily against revoking the cancellation of the visa’ (para 81). The Tribunal then evaluated in considerable detail the material concerned with the appellant’s risk of re-offending and concluded that he has a ‘medium likelihood of reoffending’ (para 160) and that together with its evaluation that the consequent harm if he re-offended would be serious concluded that the protection of the Australian community ‘weighs heavily in favour of not revoking the cancellation of [the appellant’s] visa’ (para 162). As to the best interests of minor children in Australia, the Tribunal again undertook a detailed review of the material. It concluded that ‘the interests of minor children weigh heavily in favour of revoking the cancellation of his visa’ (para 231). Then as to the expectations of the Australian community, the Tribunal found, after considering relevant authority, that the expectation of the Australian community was that his visa would be cancelled (para 234). Nevertheless it found that countervailing considerations were such that a higher level of tolerance would be afforded to him because he had been in Australia from a young age, has made a positive contribution to the Australian community and has minor children and all his immediate family in Australia (para 236). It concluded as to the expectations of the Australian community that it was a consideration that ‘weighs considerably in favour of not revoking the cancellation of his visa’ (para 237).

As to the other considerations, each was evaluated. Most were found not to apply or to be ‘neutral’. However, as to the strength, nature and duration of the appellant’s ties to Australia, the Tribunal concluded (at para 288) after a detailed review of the material as follows:-

"Having taken into account [the appellant’s] ties with his immediate family, his extended family, Ms B, Ms TT and other members of the community, the Tribunal is satisfied this factor weighs strongly in favour of revoking the cancellation of his visa. When this consideration is added to the significant weight in favour of revoking the cancellation due to the length of time he has lived in Australia, this consideration weighs strongly in favour of revoking the cancellation of his visa."

The Tribunal also found that the appellant would face minor impediments in re-establishing himself in New Zealand and that factor ‘should be given slight weight in favour of revoking the cancellation of his visa’ (para 304).

The Tribunal then undertook an overall evaluation that involved bringing together the relative views that it had reached. Under the heading ‘Conclusion’, it said (paras 305‑308):

1) Of the primary considerations, the protection of the Australian community weighs heavily in favour of not revoking the cancellation of [the appellant’s] visa, and the expectations of the Australian community weigh considerably in favour of not revoking the cancellation. The best interests of the children weigh heavily in favour of revoking the cancellations of the visa.

2) Of the other considerations, the strength nature and duration of [the appellant’s] ties weighs heavily in favour of revoking the cancellation of [the appellant’s] visa and the extent of impediments if removed weighs slightly in favour of revoking the cancellation of his visa.

3) Primary considerations should generally be given greater weight than the other considerations (cl.8(3)). In accordance with Suleiman, to give greater weight to one primary consideration, or to treat one or more of the other considerations as a primary consideration, it will be outside of the circumstances that generally apply. The Tribunal does not consider the circumstances of this case as outside those that generally apply.

4) The Tribunal considers the two primary considerations of protection of the community and the expectations of the community outweigh the best interests of the children, the strength, nature and duration of [the appellant’s] ties to Australia and any impediments he will face re-establishing himself in New Zealand. This means the decision not to revoke the mandatory cancellation of his visa is affirmed.

The structure of the four paragraphs that form the conclusion is significant. The first deals with the weight to be afforded each of the primary considerations, the second deals with the weight to be afforded each of the other considerations that were earlier found to be of significance in the case of the appellant. The third deals with the proper approach to the overall weighing process. The fourth records the way in which the Tribunal weighed the considerations.

The first and second paragraphs accurately record the outcome of the detailed relative evaluation of the weight to be afforded each of the considerations considered by the Tribunal to be relevant and of significance. There is no criticism of them.

The fourth paragraph states the Tribunal’s view that the combined effect of the two primary considerations that it had found favoured non-revocation outweighed the combined effect of the third primary consideration and the other considerations that favoured revocation. As such, it records an overall assessment by the Tribunal that brings together all relevant considerations. Significantly, it undertakes that overall evaluation by bringing together the relative assessments the Tribunal has already made in the detailed reasoning that has been described.

The appellant’s contention concerning the Tribunal’s conclusion

Despite the Tribunal recording its evaluation in the manner described above, the contention advanced by the appellant concerning the third paragraph of the Tribunal’s conclusion was that it involved the Tribunal adopting a view that in order for any one primary consideration to have greater weight than the other primary considerations the case had to be outside of the circumstances that generally apply. It followed from the appellant’s contention as to what was meant by the second sentence that the Tribunal was saying in the third paragraph that because the case was not outside the circumstances that generally apply greater weight could not be given to the primary consideration concerned with the best interests of children over the other primary considerations.

It was also submitted that the Tribunal expressed the same view about the other considerations prevailing over the primary considerations. In short, they could not prevail because the case was not outside of the circumstances that generally apply.

Issue:-

Did the Tribunal err in applying Suleiman?

Consideration:-

As has already been explained, before embarking upon its task of evaluating the various considerations listed in Direction 79 for relevance and weight, the Tribunal described what was required by Suleiman. It did so in terms that were not criticised. In particular, it described Suleiman (correctly) as dealing with the circumstances in which ‘other considerations’ can outweigh primary considerations. At that point, the Tribunal did not refer to the circumstances in which one primary consideration may outweigh other primary considerations, being a matter that was not addressed in Suleiman and which, in any event, is addressed expressly in para 8(5) of Direction 79 which says in terms that one or more primary considerations may outweigh other primary considerations.

Further, it is plain that at the contentious point in its conclusion the Tribunal is reasoning by reference to what was said in Suleiman. The decision in Suleiman, like the present appeal, concerned an application to review a decision concerning the power under s 501CA and a direction expressed, for present purposes, in similar terms to Direction 79. The Tribunal in its reasons had described the other considerations as ‘secondary’. In the key part of its reasons concerning the risk of harm to Mr Suleiman if he was returned to his country of nationality, the Tribunal had said that the primary considerations in Direction 65 (the predecessor to Direction 79) ‘are normally given greater weight than the other considerations and in light of the evidence before it, the Tribunal finds that the primary considerations here clearly outweigh this secondary consideration’: at [22]. In that context, it was said by Colvin J at [23]:

"The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply."

The reasoning went on to conclude at [28]:-

"To treat the other consideration as secondary irrespective of its character in the particular case does not conform to the language of Direction 65. So, in this case, even though the Tribunal found that the applicant was ‘at risk of harm - arguably even death given the consequences that flow from this mental disability if left untreated’ this was a matter that it placed as always being of lesser importance than the primary considerations. The Tribunal did not consider, as it was required to do by Direction 65, whether in the specific circumstances the non‑refoulement obligations should be afforded greater weight.

The point made in Suleiman was that the other considerations referred to in the direction were not inherently secondary and were not secondary in all circumstances. Generally, the primary considerations were such that they were to be given greater weight. However, particular circumstances may pertain that may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations. It may be noted that the reference in Suleiman to an inquiry as to whether the case is outside the circumstances that generally apply should not be read as requiring an inquiry as to whether there was something about the nature of the case of the person wanting to maintain their status as a visa holder that was unusual or uncommon or out of the ordinary. Rather, the question was whether there was some reason why the general circumstance where the primary considerations should be given greater weight than the other considerations should not apply when it came to weighing the various considerations that were relevant to the particular case.

Having regard to what was decided in Suleiman it would be strange for the Tribunal to be saying something about the relative weight as between primary considerations.

The contentious sentence in the Tribunal’s reasons

Turning then to the contentious words used by the Tribunal in the single contentious sentence in its reasons. It will be remembered that in Direction 79 there are three primary considerations and five other considerations.

The submission for the appellant is to the effect that the Tribunal’s words ‘give greater weight to one primary consideration’ meant ‘give greater weight to only one primary consideration over one or both of the other two primary considerations’. The submission for the Minister was to the effect that those words referred to the possibility of a particular primary consideration having greater weight over the other considerations. There is a further possibility (close to the submission for the Minister), namely that there is a slip in the wording and the Tribunal meant to refer to the possibility of one of the other considerations being given greater weight than any of the primary considerations.

The appellant’s construction should not be accepted

For the following reasons, the appellant’s submission concerning the meaning of the contentious sentence should not be accepted.

First, the Tribunal began its analysis at paras 54‑55 with a correct statement of what was determined by Suleiman being a statement that did not suggest that it was concerned with when one primary consideration may be given greater weight than another.

Second, the opening words to the third paragraph of the Tribunal’s conclusion focus attention upon the issue as to when primary considerations should be given greater weight over the other considerations.

Third, it was obvious that Suleiman was concerned only with the circumstances in which one of the other considerations (described as secondary by the Tribunal in that case) might be given greater weight than the primary considerations. It was also stated squarely in Direction 79 in para 8(5) that one or more primary considerations may outweigh other primary considerations. Therefore, neither Suleiman nor the direction indicated any uncertainty as to the correct approach to weighing primary considerations with each other.

Fourth, the Tribunal used the language ‘treat one or more of the other considerations as a primary consideration’ which was plainly taken from the last sentence of [23] of Suleiman. The other alternative referred to in that sentence was treating one or more of the other considerations as the consideration to be afforded the greatest weight. Given the introductory words to the contentious sentence (which refer to ‘accordance with Suleiman’) it appears tolerably clear that the Tribunal was paraphrasing the two conditions stated in the last sentence of [23]. If so, it is likely that the contentious words were stating the second of those conditions which concerned when one or more of the other considerations might be afforded greatest weight amongst all considerations. Divorced from an understanding of what was said in Suleiman it may be argued that the appellant’s construction of the reasons should be accepted. However, read in the context of what was said in Suleiman, there is much to be said for the Minister’s alternative or the likelihood that something miscarried.

Fifth, and most significantly, as has been explained the weighing process that was actually undertaken by the Tribunal in the following paragraph did not give effect to the construction for which the appellant contends. If indeed the Tribunal had meant to state what was argued for the appellant then it would make no sense for the Tribunal to go on and weigh the various considerations in the manner that it did in the fourth paragraph.

Another way of expressing the above analysis is to say that the appellant’s submission approaches the Tribunal’s reasons with an eye attuned to finding error. Imperfections of expression in a single sentence in what were otherwise comprehensive and detailed reasons evaluating the relative weight to be afforded all of the relevant considerations followed by a conclusion expressed in the terms of the fourth paragraph of the conclusion shows that the Tribunal has performed its function and exercised its powers by complying with Direction 79.

Conclusion:-

It follows that no error of the kind relied upon by the appellant has been demonstrated and for that reason the notice of contention by the Minister must be upheld. The appeal depended upon the contrary conclusion by the primary judge being sustained. As that premise for the appeal has not been upheld, the appeal must be dismissed and it is not necessary to consider the issues raised in relation to materiality.

Added a post 

Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13 (17 February 2022)

Intro:-

This is an appeal from a decision of a single judge of this Court exercising original jurisdiction under s 476A of the Migration Act 1958 (Cth) to review a decision of the Administrative Appeals Tribunal.

Facts:-

The Tribunal affirmed a decision of a delegate of the first respondent (Minister) made under s 501CA(4) of the Act not to revoke the mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa pursuant to which the appellant, Luke Dunasemant, a citizen of New Zealand, has lived in Australia for about 18 years.

The primary judge found that the Tribunal erred in failing to consider the effect of non-revocation on Mr Dunasemant’s mother, concluding that Mr Dunasemant’s representations on this topic and the evidence said to support them had been overlooked by the Tribunal. Nevertheless, the primary judge found that the Tribunal's failure to take this matter into account was not a jurisdictional error, because it was not material to the Tribunal's decision.

The original notice of appeal was filed on 3 March 2021, at a time when Mr Dunasemant was not legally represented. It was limited to a single ground of appeal which, inter alia, challenged the primary judge’s finding on the question of materiality.

By notice of contention filed on 31 March 2021, the Minister contended that a further ground upon which the primary judge’s conclusion as to the absence of jurisdictional error should be upheld was because there was an insufficient legal and evidential basis to support a finding that the Tribunal failed to consider the impact of non-revocation on Mr Dunasemant’s mother.

On 7 May 2021, Mr Dunasemant having obtained legal representation, filed an amended notice of appeal and an interlocutory application seeking to adduce further evidence on the appeal, effectively being the transcript of the proceedings before the Tribunal, which was not before the primary judge.

The Primary Judge's Decision

A key finding by the primary judge was that the Tribunal, in what was otherwise a detailed, lengthy and reasoned decision, overlooked and failed to have regard to the effect of non-revocation on Mr Dunasemant’s mother.

The application before the primary judge was limited to one ground. The ground was that the Tribunal failed to consider the effect of non-revocation on Mr Dunasemant’s mother, although it was required to do so under Direction no. 79 “Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA”. The Direction is a written direction given by the Minister under s 499(1) of the Act and with which the Tribunal is bound to comply: s 499(2A).

The primary judge set out the submissions made by Mr Dunasemant (at [24]):

Mr Dunasemant submitted that the Tribunal was required to consider the effect of non-revocation on his mother as a member of his family with a right to remain in Australia indefinitely so that its failure to do so amounts to jurisdictional error. Yet, despite the terms of para 14.2(1)(b) of the Direction, the Tribunal did not consider the effect of non-revocation on any of his immediate family members in Australia. He also submitted that, if the Tribunal had considered the effect of non-revocation on his mother as it was required to do, then “it is possible the Tribunal may have found” that the first and third primary considerations were outweighed by the other consideration in para 14.2(1).

The parts of the Direction presently relevant are:-

14. Other considerations – revocation requests

(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a) ...

(b) Strength, nature and duration of ties;

(c) ...

Paragraph 14.2 of the Direction elaborates on para 14.1(b) and provides that:

(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a) ...

(b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

Paragraph 6.3 contains the principles underpinning the whole of the Direction, the last of which reads:

(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.

Significantly, for the outcome of this appeal, the principles articulated in para 6.3 of the Direction are relevant to both the primary considerations and the other considerations set out in the Direction.

In the present appeal, the two relevant considerations which Mr Dunasemant argued should have been weighed so as to take into account the consequences for other immediate family members in Australia were primary consideration (c) – expectations of the Australian community (para 13(2)(c) and 13.3) and other consideration (b) – strength, nature and duration of ties (para 14(1)(b) and 14.2(1)(b)).

The primary judge identified the question for determination as whether the Tribunal fell into jurisdictional error by failing to consider the effect of non-revocation on Mr Dunasemant’s mother. The primary judge answered that question in the negative and dismissed Mr Dunasemant’s application. In reaching her conclusion, the primary judge asked and answered the following three questions. First, whether the Tribunal was required to consider the effect of non-revocation on Mr Dunasemant’s mother. Answer, yes. Second, did the Tribunal fail to do so. Answer, yes. Third, whether it could have made a difference if it had. Answer, no.

Although both Mr Dunasemant and his mother gave evidence before the Tribunal, the transcript of the Tribunal proceedings was not before the primary judge nor was any affidavit addressing any aspect of the Tribunal hearing on which Mr Dunasemant wished to rely in his review application. The primary judge noted that as a consequence (at [35]):

..there was nothing before the Court to indicate that any evidence on the subject was adduced at the hearing or that any reference was made in submissions to the representation concerning the effect of non-revocation on Ms Dunasemant. It is not open to the Court to speculate on the matter but the Court may infer that no such evidence was adduced and no such reference was made.

In the present case, regardless of the weight the Tribunal attached to the primary considerations of the protection and expectations of the Australian community, it is fanciful to think that the outcome could have been any different if (approaching the matter fairly and reasonably with an open mind) the Tribunal had considered the effect of non-revocation on Ms Dunasemant. In the absence of any material which would have enabled the Tribunal to make a finding on the nature and extent of the effect, the Tribunal’s error was “so insignificant that [its] failure to take it into account could not have materially affected its decision” (Hossain [v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123] at [30]). That conclusion is only reinforced if the Tribunal’s opinions on the weight to be attached to the protection and expectations of the Australian community are taken into account. Put another way, having regard to the paucity of evidence on the subject, Mr Dunasemant has not discharged his onus of proof. The oversight on the part of the Tribunal did not “rise to the level of jurisdictional error” (Hossain at [37]).

Issue:-

a) did the primary judge err in concluding that the Tribunal did not commit a jurisdictional error in failing to have regard to the effect of non-revocation on Mr Dunasemant’s mother under cl 14.2(1)(b) of the Direction?

Consideration:-

The primary judge’s approach was to first identify what it was that the Tribunal overlooked before moving to consider whether it was material.

The primary judge found (at [64]) that:

...the only evidence said to touch upon the effect of non-revocation on Ms Dunasemant were the last two sentences of her statement: “I am not getting any younger. I would be blessed to keep my son close to me.”

The primary judge dismissed this evidence as merely a statement of the obvious and raising more questions than it answered.

The primary judge concluded that Mr Dunasemant’s representations concerning the effect of non-revocation were no more than bare assertions unsupported by any probative material.

The primary judge’s conclusion is not borne out by a review of the material that was before the Tribunal. The material that touched on the critical issue was not limited to the last two sentences of Ms Dunasemant’s statement.

The relevant material before the Tribunal included the following documents: Mr Dunasemant’s Personal Circumstances Form (PCF), Mr Dunasemant’s Request for Revocation (RFR), Mr Dunasemant’s Statement of Facts, Issues, and Contentions (SFIC) and the Minister’s SFIC. Each of these documents formed part of the material before the Tribunal, as required by s 500(6F)(c) of the Act.

In his PCF, Mr Dunasemant included his mother’s details in the list of his family members. In answer to the question which asked for a description of the impact that cancellation would have, or has had, on his family, Mr Dunasemant said:

"It is distressing to my family because the strength of my family ties to Australia and the fact that we are all close and they would all be emotionally distraught by my removal."

In his RFR, Mr Dunasemant expressly contended that other consideration (b), being the strength, nature and duration of his ties to Australia, weighed strongly in favour of revocation, partly because of the effect non-revocation would have on the his immediate family in Australia (including his mother).

Mr Dunasemant’s SFIC included the following:

Primary Consideration 3 – Expectations of the Australian Community

52. The Applicant accepts that the Tribunal is required to approach it’s consideration of this primary consideration in the way endorsed by Charlesworth J in FYBR v Minister for Home Affairs [2019] FCAFC 185. That is, Direction 79 deems that the Australian community would expect the Applicant to forego the privilege of residing in Australia, but that it is for the Tribunal, in accordance with the principles prescribed by paragraph 6.3 of the Direction, to determine how much weight should be given to that expectation.

53. The Applicant submits that having regard to paragraphs 6.3(5) and 6.3(7) of Direction 79 and:

...
d) the consequences of non-revocation for the Applicant’s other immediate family members (as discussed below),


minimal weight should be placed on this primary consideration in determining whether to revoke the mandatory cancellation of the Applicant’s visa.

Mr Dunasemant went on to expressly submit in his SFIC that his mother would be significantly adversely impacted by a non-revocation decision.

56. In relation to the matters prescribed by s 14.1(b) of the Direction, we submit that the Applicant has extremely strong social and family links to Australian citizen [sic] and permanent residents, including:

a) having resided in Australia for over 18 years;

b) having all of his immediate family (children, mother and brother) live in Australia;

c) having worked in Australia for most of the period between 2002 and 2016.


57. Further, we submit that the following members of the Applicant’s immediate family in Australia would be significantly adversely effected [sic] by a

non-revocation decision:

a) the Applicant’s mother, Maria Dunasemant;

b) the Applicant’s brother, Neco Dunasemant; and

c) the Applicant’s ex-partner, Cara Dwyer.


58. In the premises, we submit that this consideration weighs heavily in favour of revocation.

In the Minister’s SFIC, under the heading “Other considerations”, subheading “Strength, nature and duration of ties”, the Minister said:-

50. Separately from the minor aged children discussed above, the applicant has a family network in Australia including his mother, brother and other distant relatives (T31/128). Whilst it is acknowledged that these family members may suffer some emotional hardship if the applicant were to remain in New Zealand, there is no evidence that these family members are supported by the applicant ...

This portion of the Minister’s SFIC was extracted by the primary judge at [37]. The primary judge observed that it is difficult to see how the Tribunal could have fallen into jurisdictional error by failing to consider a “mere possibility” of emotional hardship (at [39]).

The Minister’s SFIC however continues:

51. Overall, the Minister accepts that this consideration weighs in favour of the applicant, however contends that it does not outweigh the protection of the Australian community or the expectations of the Australian community.
The Minister accepted that other consideration (b) – strength, nature and duration of ties – weighed in favour of Mr Dunasemant. Read in context, as a response to Mr Dunasemant’s SFIC, and in combination, [50] - [51] of the Minister’s SFIC support Mr Dunasemant’s submission on the appeal that the Minister had conceded that Ms Dunasemant as a family member would be impacted by non-revocation. While the Minister did not concede anything as to the nature or extent of such hardship, the Minister’s concession was not limited to a “mere possibility” of emotional hardship.

Against this background we return to Ms Dunasemant’s statement. The primary judge’s reading of the final two sentences of Ms Dunasemant’s statement did not adequately take into account the full context provided by what is said earlier in the statement. The statement comprises two pages. The following parts of the statement are important in contextualising the final two sentences “I am not getting any younger. I would be blessed to keep my son close to me.”

...I have always been the sole parent of all my children. I Have had no family support in raising my sons on my own. Luke has experienced domestic violence from the womb until age 12 years old. I have always been there for my son, doing my best in the most difficult times.

...

My son Pursued and relationship with Cara Dwyer, they then have 3 children together. Luke and Cara split up but remained on good terms for their children. I have 3 beautiful grandchildren, [T], [A] and [N]. [N] was born with abnormalities of her respiratory system. She has been hospitalized more then 21 times in her short 5 years. Luke has a loving and devoted relationship with his children and would like the opportunity to continue to co -parent with his children in Australia. His children need their father to be present in their lives.

...

Luke has no family support or any form of support if he returns to New Zealand.

Please I pledge that my son will be a valued member of society here in Australia. I ask in gods name that you take all matters into consideration. He has made a mistake, and his family deserve to have their father present. I am not getting any younger. I would appreciate and be blessed to keep my son close to me.
[As written]

Ms Dunasemant says that she is the sole parent to all of her children and that she has always been there for her son. She refers to her grandchildren fondly. She notes that she is employed. She works as a community support worker. It is in that context that she says that she is “not getting any younger” and that she would “be blessed to keep her son close” to her in Australia. Read in context, it is implicit in the final two sentences of Ms Dunasemant’s statement that she is concerned that if Mr Dunasemant is removed, the needs of his three children, including those of the child with chronic health issues, would fall, at least in part, to her. The final two sentences of Ms Dunasemant’s statement are directed to the emotional and practical consequences she would experience if her son is removed.

In concluding that the material in relation to the impact of non-revocation on Ms Dunasemant did not rise above bare assertion, the primary judge also relied on the Jones v Dunkel inference that any evidence that Ms Dunasemant could give would not have assisted her son. The primary judge drew that inference based on the absence of a reference by the Tribunal to Ms Dunasemant being asked a question on the effect her son’s removal would have on her whereas the Tribunal did refer to Ms Dunasemant being asked about the effect on her grandchildren.

The absence of such a reference by the Tribunal might more readily be explained as another manifestation of the Tribunal overlooking, in its entirety, the whole topic of the impact of non-revocation on Ms Dunasemant, notwithstanding that it was a topic which the Tribunal was required to consider given that it was relevant and was the subject of representations made by Mr Dunasemant. The Tribunal’s reference to Ms Dunasemant being asked a question about the impact on her grandchildren was in the context of the Tribunal expressly considering the best interests of minor children in Australia as a primary consideration under the Direction and one to which the Tribunal attached moderate weight.

Even if the inference drawn by the primary judge was available on the information to which the primary judge had regard, it cannot safely stand when the final two sentences of Ms Dunasemant’s statement are read in the context of the statement as a whole.

The representations that were made and the material that was before the Tribunal, including the statement of Ms Dunasemant, required the Tribunal to make a finding on the nature and extent of the hardship claim. The Tribunal’s error was to completely overlook the issue of the hardship to Mr Dunasemant’s mother.

It follows that in determining the weight to be given to primary consideration (c), the Tribunal did not take into account a factor that it was obliged to weigh in the balance, a representation having been made on the point that was clearly articulated and supported by material that was before the Tribunal. The primary judge concluded that the Tribunal’s error was not material when regard was had to the Tribunal’s opinion on the weight to be attached to the protection and expectations of the Australian community ([68]) but did not grapple with the submission that if the hardship claim in respect of Ms Dunasemant had been considered in the context of primary consideration (c), the Tribunal could have given this primary consideration less weight in its assessment of factors against revocation.

As for primary consideration (c), so too for other consideration (b), in overlooking the issue entirely, the Tribunal failed to consider a representation that had been clearly articulated and which was supported by material that was before the Tribunal. If the hardship claim in respect of Ms Dunasemant had been considered in the context of other consideration (b), the Tribunal could have given this primary consideration even more weight in its assessment of factors in favour of revocation.

In this way, the Tribunal’s failure to consider the hardship claim was relevant to the way in which the Tribunal attributed weight to primary consideration (c) and other consideration (b) in the exercise of its function under s 501CA(4)(b)(ii) and realistically could have resulted in the Tribunal reaching a different conclusion as to whether there was another reason to revoke the cancellation decision.

Conclusion:-

For these reasons, we have concluded that the Tribunal’s error was material and that ground 1 should be allowed. In light of our conclusion on ground 1, it is not necessary to determine the leave application in respect of the new grounds of appeal or the application to adduce further evidence.

 

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LWW (Guardianship) [2022] VCAT 221 (2 March 2022)

WQE filed an application about an enduring power of attorney.  Orders were made for Public Advocate (OPA) to be appointed as guardian for LWW with power to make decisions in relation to access to persons and that BXT be appointed administrator.  The Court, in making its orders, assessed whether an administrator and guardian is needed.

Facts:

WQE applied to the Tribunal for orders about an enduring power of attorney (EPA) made by his mother LWW on 21 December 2017.  Under the EPA, LWW appointed her daughter BXT to be her attorney for personal and financial matters.  WQE said that BXT was not acting in their mother’s best interests and she was socially isolating their mother.  On 21 December 2017, at the same time as LWW made the EPA which is the subject of these proceedings she also made an Appointment of Supportive Attorney in relation to personal and financial matters and an EPA (medical treatment) appointing BXT as attorney.

The application was first heard by VCAT on 6 March 2020.  It was adjourned for the Public Advocate (OPA) to complete an investigation and report to the Tribunal.  BXT was directed to submit to VCAT a statement of accounts in respect of her operation as attorney.  OPA provided a report on 26 October 2021.  BXT also provided accounts as directed.

The OPA investigator Aimee Gordon in her report to VCAT recommended that the Tribunal consider appointing BXT as administrator and either suspend the personal powers under the EPA or appoint an independent guardian with authority to make decisions about the persons with whom LWW associates. 

During the investigation Ms Gordon spoke with LWW, WQE, BXT and the care manager and facility manager at the aged care facility where LWW lives.  Ms Gordon also had access to written statements filed with the Tribunal from BXT, from two nurses at the aged care facility where LWW lived previously, a friend of LWW and her late husband, her granddaughter VHS, and CGL and CGL’s wife and daughter.

Ms Gordon noted in her report that WQE, VHS and those who had provided written statements were concerned that in 2019, BXT was suddenly removed LWW from the previous facility where she lived to the current facility without communication or notification to them, that BXT had prevented access to LWW, and that BXT had isolated LWW and instructed facility staff not to transfer any of their calls to LWW.  Ms Gordon said that BXT told her that WQE and others were motivated by financial interest in contacting LWW.  Orders were made for OPA to be appointed guardian for LWW with power to make decisions in relation to access to persons and that BXT be appointed administrator with a direction that BXT provide copies of the Accounts by Administrator and supporting documents to WQE.

Issue:

Whether or not an administrator and guardian is needed. 

Applicable law:

Powers of Attorney Act 2014 s 83 - where the effect of these orders is that the EPA remains in place but by virtue of this section, cannot be exercised in relation to financial matters and access to persons by LWW unless authorised by VCAT to do so.

Guardianship and Administration Act 2019 s 8 - provides that a person with a disability should be given practicable and appropriate support to make and participate in decisions, express their will and preferences and develop their decision-making capacity. 

Guardianship and Administration Act 2019 s 30 - says VCAT may only appoint a guardian or administrator for a person if satisfied that the order will promote the person’s personal and social wellbeing.

Victorian Civil and Administrative Tribunal Act 1998 - provides that unless VCAT orders otherwise, a person must not publish or broadcast any report of a proceeding under the Guardianship and Administration Act 2019 that identifies or could lead to the identification of a party to the proceeding.

Charter of Human Rights and Responsibilities Act 2006 13 - provides that a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with. 

Analysis:

As stated in Ms Gordan’s report dated 26 October 2021, the appointment of [BXT] as administrator will provide greater accountability and more assurance that [LWW’s] finances are being appropriately managed.  It is hoped that this will remove [LWW’s] finances as a source of disagreement and tension between [WQE] and [BXT], which would promote [LWW’s] personal and social well being.  Very serious allegations have been raised that LWW’s relationships with her family and her access to correspondence have been arbitrarily interfered with.  In light of these allegations and the primary purpose of the GA Act, safeguarding her human rights by the appointment of a guardian is an important aspect of promoting her personal and social wellbeing.

The appointment of [BXT] as administrator will provide greater accountability and more assurance that [LWW’s] finances are being appropriately managed.  It is hoped that this will remove [LWW’s] finances as a source of disagreement and tension between [WQE] and [BXT], which would promote [LWW’s] personal and social wellbeing.  There is a need for an administrator to allay family members’ concerns about the management of the funds and to provide greater accountability.  The appointment of BXT as administrator accords with LWW’s will and preferences that BXT make decisions for her.

Conclusion:

The enduring power of attorney made by the represented person on 21 December 2017 appointing [BXT] as attorney for personal and financial matters is suspended so far as it relates to financial matters.  The enduring power of attorney (medical treatment) made by the represented person on 21 December 2017 appointing [BXT] as agent remains in place.  [BXT] is directed to immediately notify [WQE] in the event there is any significant change in the represented person's medical condition or if she is hospitalised.  The Public Advocate, Office of The Public Advocate 1/204 Lygon St, CARLTON VIC 3053 is appointed guardian for [LWW]. 

 

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DPP (Cth) v Amarasinghe [2022] VCC 200 (2 March 2022)

Ranpati Dewage Shavindu Nimanthana Amarasinghe was charged with using a carriage service to cause child pornography material to be transmitted to self and many more related charges.  The Court, in determining the sentence to be imposed, considered how there were false identities used in offending and how the offending conduct was objectively very serious. 

Facts:

The Commonwealth Director of Public Prosecutions (CDPP) tendered a Prosecution Opening Upon Plea dated 17 January 2022, which Ranpati Dewage Shavindu Nimanthana Amarasinghe's counsel told the Court it could treat as a statement of agreed facts.  In April 2020, the Australian Federal Police (AFP) Victorian Joint Anti-Child Exploitation Team (JACET) commenced an investigation after receiving referrals from the United States of America (USA) and the United Kingdom (UK).  Each referral was in relation to separate female victims under the age of 16, who had engaged with him online.  The offending occurred between 1 November 2018 and 11 June 2020 ( a period of some 19 months) and involved you using various social media platforms, including Kik, Instagram, Omegle, Chat For Strangers and Snapchat with the usernames I will refer to as ‘JL’, ‘JH’, ‘EL’ and ‘SL’. 

During the period of your offending, you encouraged your victims to send images and videos of themselves naked and performing sex acts via these social media platforms.  The images and videos are classified as child abuse material. During the period of offending, you told the victims to send further child abuse material with the threat that you would disseminate their other images and videos to friends and family if they did not comply. You followed through with these threats, transmitting child abuse material to the friends and family of the victims that did not comply. 

On 11 June 2020, you were arrested and charged. On this day, you were found in possession of child abuse material.  On 20 November 2020, one of your victims, gave a statement that you made use of a carriage service to cause child pornography material to be transmitted to self (Charge 1).  On 26 May 2020, one of your victims, ‘LB’, gave evidence that you also made use of a carriage service to cause child pornography material to be transmitted to self (Charge 2).  On 6 November 2019, participated in a VARE and gave evidence that in November 2018, that you likewise made use of a carriage service to cause child pornography material to be transmitted to self. 

These instances were repeated with BW, SL, AJ, KR, DM, TK, CT, BT, CC, JL, MR, an unknown and unidentified Instagram user, KM, KY, AB, IR, AH, JG, and MS (Charges 3-22).  Another two charges relates to you committing an aggravated offence involving private sexual material – use a carriage service to menace and cause offence (Charge 23 & 24).  Lastly, on 11 June 2020, a search warrant was executed at your residence pursuant to your possession of child abuse material (Charge 25). 

Issue:

The appropriate sentence for the offending.

Applicable law:

Crimes Act 1914 (Cth) (‘the Act’) s 20(1)(b)(ii) - provides that the Act requires a court to be satisfied that exceptional circumstances exist before a person being sentenced for a Commonwealth child sex offence can be released immediately on a recognizance release order.

Crimes Act 1914 (Cth) s 16A(1) - where the Commonwealth Director correctly observed, that section does not displace the requirement that the sentence must be of a severity appropriate in all the circumstances of the offending.

Sentencing Act 1991 (Vic) ss 5(3) - provides that the Court shall not pass a sentence of imprisonment on you for these offences unless, having considered all of the available sentences.

Rodriguez v DPP (Cth) [2013] VSCA 216(2013) 40 VR 436 - provides that delay is normally relevant in two ways.  First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence.  Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.

R v Miller [1995] VicRp 60[1995] 2 VR 348 - provides that where no victim impact statement is relied upon, a sentence may draw reasonable inferences from the known circumstances regarding the likely impact of an offence upon any victim and their immediate family.

Clarkson v The Queen [2011] VSCA 157(2011) 32 VR 361 - provides that the law presumes harm to child victims in circumstances such as the present, and consent, or ostensible consent, of a child to such conduct with an adult is not a mitigating factor. 

R v Richard [2011] NSWSC 866 - relied upon in holding that the criminality involved in each of these charges is greater than with a charge involving only one episode of criminal conduct.

R v Oliver [2003] 1 Cr App R 28 - provides that wide-scale distribution, even without financial profit, is intrinsically more harmful than a transaction limited to two or three individuals, both by reference to the potential use of the images by active paedophiles, and by reference to the shame and degradation to the original victims.

The Queen v Madex [2020] VSC 145 - where it was held that an offender is at a higher risk of contracting COVID–19 if they are incarcerated (presuming an outbreak in custody).

DPP v Bourke [2020] VSC 130 - provides that the inherent utilitarian value of a guilty plea is greater during the pandemic.

Brown v The Queen [2020] VSCA 60 - provides that the pandemic is causing additional stress and concern for those incarcerated and their families, as it is for every member of the community.

D’AlessandroSmithDPP (Cth) v Guest [2014] VSCA 29 - provides that a person being sentenced for the present offences can expect a term of imprisonment to be imposed.

Analysis:

Your offending conduct is objectively very serious.  You fall to be sentenced for 25 discrete offences.  The overall offending involved five distinct and separate offence types, namely transmitting, publishing, and possessing child abuse/child pornography material, using a carriage service to menace and cause offence by transmitting private sexual material and causing child pornography material to be transmitted to yourself.  There are six female victims of the overall offending, five of whom were children.

You used four false identities to conceal your identity when communicating with victims, including using two female usernames.  It is not relevant that a child may be seeking to explore their sexuality or enjoys the attention of the offender via the internet.  This is no reason to relax any protection for children in that sphere.  Your offending was protracted, planned, organised, prolific and involved threats.

This is a particularly cruel example of your offending conduct and demonstrates the depths of depravity into which you had fallen.  The impact of this obscene conduct on your young innocent victim is beyond imagining.

Conclusion: 

The Court is of the opinion that the only appropriate sentences necessary to achieve the purposes for which these sentences are imposed are immediate sentences of imprisonment and a total effective sentence involving a period of immediate imprisonment with a non-parole period.  The Court sentenced a total effective sentence of 13 years’ and six months’ imprisonment for the defendant.

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Hume Plasterboard Pty Ltd v Yi Hao Pty Ltd [2022] NSWSC 183 (1 March 2022)

The first defendant defaulted on financial obligations to the plaintiff.  The plaintiff brought proceedings against the second defendant and other defendants.  The Court, in making its orders, assessed whether it was necessary to consider the second defendant’s pleaded defences.

Facts:

The plaintiff, Hume Plasterboard Pty Ltd ABN 70 101 562 270 (“Hume Plasterboard”), applies for judgment upon a guarantee signed by the second defendant, Mr Jinbiao Xu guaranteeing the financial obligations of the first defendant, Yi Hao Pty Ltd ABN 84 636 111 325 (“Yi Hao”) to the plaintiff.  The other defendants were legally represented and they settled with the plaintiff on the first hearing day.  But the second defendant did not appear, so Hume Plasterboard sought to proceed in his absence.  The first defendant, Yi Hao, is in liquidation.

The second defendant, Mr Jinbiao Xu, and the third defendant, another guarantor, Chujun Su, filed a cross-claim against Hume Plasterboard on 13 May 2020, seeking to set aside their respective guarantees.  At the hearing on 28 February 2022 the third and fourth defendants were legally represented and reached a settlement with the plaintiff on the principal claim.  At the same time the cross claim brought by the third defendant, as second cross claimant, was discontinued and dismissed by consent, with costs.  The plaintiff also discontinued proceedings against the first, third and fourth defendant on 28 February 2022. 

In an Amended Statement of Claim filed on 22 December 2021 the plaintiff claims: that the second defendant guaranteed the first defendant’s financial obligations to the plaintiff; that the first defendant defaulted on payments to the plaintiff for the supply of goods, materials and associated services between the months of December 2019 and February 2020; and that consequently $219,213.14 is due to the plaintiff under the terms of an executed Guarantee and Indemnity dated 28 October 2019 (“the Guarantee”).  The plaintiff claims interest under Civil Procedure Act 2005s 100 in the sum of $219,213.14 together with interest and costs.  The second defendant/first cross claimant did not appear at the hearing on 28 February 2022.  Mr I. Kammoun, the solicitor who represented the third and fourth defendants, had also acted for the second defendant between 22 April 2020 and 15 May 2021, when he filed a Notice of Ceasing to Act. 

On 28 October 2019, a representative of Yi Hao signed Hume Plasterboard’s ‘Confidential Credit Application Form’, which contained a form of Guarantee that was signed by the second and third defendants.  On 4 November 2019 the plaintiff established an account to permit the first defendant to obtain goods and materials from the plaintiff on credit.  Hume Plasterboard sent a letter to the second defendant on 4 November 2019, confirming that the account (account number ‘YH07’) had been opened with the plaintiff with a credit limit of $300,000.00.  The first defendant commenced receiving goods and materials from the plaintiff on credit, on 30-day payment terms from the statement issue date.

Monthly statements were issued as and from December 2019. On 24 February 2020, Zac Wang, an account manager for the plaintiff company, met with Mr Binbin Xu on behalf of the first defendant.  Mr Binbin Xu is the second defendant’s cousin.  At the time of the meeting, the first defendant’s account had already reached an outstanding amount of approximately $265,000, without the plaintiff receiving any substantial repayment.  Mr Binbin Xu proposed a payment plan for the first defendant company involving the payment of between $32,000 and $50,000 within the week, and $50,000 to $70,000 before the end of March. 

On 2 March, the second defendant sent a letter to Ms Williams proposing a further repayment plan.  The 2 March payment plan was not honoured.   On 18 March 2020, a third payment plan was proposed on behalf of the first defendant, under which it would make payments of $50,000 on 24 March 2020 and 31 March 2020, a payment of $70,000 on 15 April 2020 and a payment of $100,000 on 30 April 2020.  This plan was also not honoured.  On 20 March 2020 a Final Notice was sent by Ms Williams on behalf of the plaintiff to the first defendant, as well as the second and third defendants as guarantors, demanding payment of the balance of the first defendant’s outstanding account as at 31 March 2020, in a total amount of $219,213.14.

Issues:

I. Whether or not the second defendant is liable as surety. 

II. Whether or not adequate notice of hearing was given to the second defendant.

III. Whether or not it is necessary to consider the second defendant’s pleaded defences. 

Applicable law:

Civil Procedure Act 2005s 100 - pursuant to which judgment for interest against the Second Defendant is calculated from 31 March 2020 to 28 February 2022.

Analysis:

The plaintiff’s statement of account dated 1 April 2020 shows that as of 31 January 2020, the day after the December monthly account of $158,718.19 had fallen due, none of the outstanding money had been repaid.  The second defendant therefore was in default under Hume Plasterboard’s Account Terms, clause 1(a) on 31 January 2020 and the account was due and payable from that day.  As of 31 March 2020, an account statement shows that $219,213.14 remained as the net balance outstanding on the account.  The first defendant has remained in default to the plaintiff in this sum.

After Mr Kammoun’s retainer was terminated, the second defendant did not appoint new solicitors to represent him. Nor has he appeared personally and any directions hearing since then.  The second defendant was notified by mail of the 28 February 2022 hearing of these proceedings.  The plaintiff’s solicitor, Mr Giles Finney sent by express post a letter to two of the second defendant’s known addresses in Auburn and Merrylands.  These letters notified the second defendant that these proceedings were listed for hearing in this Court on 28 February 2022 and warned that the plaintiff would seek to proceed in the second defendant’s absence.   

Conclusion:

The Court is satisfied that the second defendant was served with notice of the hearing and the Court heard the plaintiff’s evidence in the second defendant’s absence.  The Court is satisfied that Hume Plasterboard has made out its claim on the guarantee and this judgment gives the Court’s reasons for entering judgment with interest and costs against the second defendant.  Judgment is entered against the second defendant for $219,213.14 plus interest of $17,741.67.  The Second Defendant is ordered to pay the Plaintiff’s costs of the proceedings. 

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Victorian Legal Services Commissioner v Logan [2022] VSC 97 (28 February 2022)

An application was made by the Commissioner for the removal of the defendant's name from the Roll of persons admitted to the legal profession.  The defendant did not appear or take any step in this proceeding.  The Court, in making its orders, assessed the defendant's plea of guilty and failure to comply with orders. 

Facts:

The Commissioner applied pursuant to s 23(1)(c) of the Legal Profession Uniform Law, on the recommendation of the designated tribunal, for the name and other particulars of the defendant, NICHOLAS PATRICK LOGAN, to be removed from the Roll of persons admitted to the legal profession.  Ms Richardson is a senior investigator in the Discipline and Suitability Team of the Commissioner.  The defendant did not appear or take any step in this proceeding.  Initially, a process server was unable to effect service but he deposed to the efforts made to track the defendant down to effect service at a number of different residential and commercial premises.  

A second process server deposed that he ‘served’ the defendant on 23 December 2021 by handing the relevant documents to the defendant’s father, Mr Logan (first name withheld), a male person, apparently above the age of 16 years, at an address in Indented Head.  In these circumstances, service had not been strictly effected.  Service was perfected by the order of Efthim AsJ, made 14 February 2022, pursuant to r 6.11 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), that service of the documents was effected on 23 December 2021.

On 14 March 2018, VCAT handed down its penalty decision. Senior Member Butcher ordered that: the defendant is ineligible to apply for or be granted a new practising certificate before 1 May 2024; the defendant is to pay compensation in the sum of $32,863.86 to one of the complainants; and the defendant is referred to the Supreme Court of Victoria with a recommendation that his name be struck off the Roll of Practitioners.  

Issue:

Whether or not it is necessary to remove the defendant from the Roll.

Applicable law:

Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 - pursuant to which the Commissioner applied for the removal of NICHOLAS PATRICK LOGAN from the Roll of persons admitted to the legal profession. 

Bolitho v Banksia Securities (No 18) [2021] VSC 666 - set out the relevant principles for striking a practitioner from the Roll. 

Hughes & Vale Pty Ltd v NSW (No 2) [1955] HCA 28(1955) 93 CLR 127 - provides that to be fit and proper, a legal practitioner must be honest, independent, able to judge what ethical conduct is required of them, and then be capable of diligently discharging the responsibilities of their office. 

Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 - provides that a legal practitioner must be ‘possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails. 

Victorian Legal Services Board v Gobbo [2020] VSC 692 - provides that whether a practitioner fails to meet these criteria is a fact-sensitive inquiry.

A Solicitor v Law Society (NSW) [2004] HCA 1(2004) 216 CLR 253 - provides that the court must also inquire into whether the practitioner has insight into, and fully appreciates, the gravity of his wrongdoing and has demonstrated effective rehabilitation. 

MN Legal and Management Consultants Pty Ltd v The Council of the Law Society of New South Wales [2018] NSWSC 1410 - Davies J identified the inherent requirements for assessing the fitness and propriety of a legal practitioner. 

Guss v The Law Institute of Victoria [2006] VSCA 88 - provides that it is difficult to overstate the importance in the administration of justice of the paramount duty of a legal practitioner not to mislead the court. 

Legal Services Commissioner v Logan (Legal Practice) [2014] VCAT 345 - VCAT Senior Member Butcher found the defendant guilty of misconduct at common law for sending a letter containing a threat which would reasonably be regarded as disgraceful or dishonourable. 

Victorian Legal Services Commissioner v Logan (Legal Practice) [2016] VCAT 544 - VCAT Senior Member Butcher found the defendant guilty of two charges of misconduct at common law for acting, issuing and maintaining proceedings without instructions and conducting litigation without seeking instructions or properly advising the client, and one charge of professional misconduct for allowing dishonest letters to be sent. 

Victorian Legal Services Commissioner v Logan (Legal Practice) [2016] VCAT 1193 - VCAT accepted an undertaking from the defendant as to the manner in which he would practice in the future and ordered that the defendant’s local practising certificate be suspended with effect from 1 September 2016 until 30 June 2017 and that he pay the Commissioner’s costs.

Victorian Legal Services Commissioner v Logan (Legal Practice) [2016] VCAT 1963 - VCAT Member Wentworth found the defendant guilty of two charges of professional misconduct and one charge of unsatisfactory professional conduct for making trust account payments to a repairer without notice to a third party factorer/financier. 

Victorian Legal Services Commissioner v Logan (Legal Practice) [2017] VCAT 189 - where it was held that in failing to act upon the opportunity extended to him in the form of the Undertaking and the leniency of the prior reprimands, the Respondent has demonstrated a flagrant disregard for the most basic obligations placed upon a solicitor towards his clients. 

Analysis:

Mr Logan has pleaded guilty to all charges. However, in doing so he stated that he did so in order to 'save costs'.  This indicates a lack of insight into and acceptance of the wrongfulness of his conduct and although it has shortened the proceedings for which credit is given, it deprives him of the full benefit/credit which might otherwise be given to a plea of guilty.  Mr Logan has at no time expressed any remorse or offered any apology for his conduct either to the Commissioner, the Tribunal or the complainants.  Mr Logan has not paid or offered any compensation to Mr Palmieri.  

Mr Logan has not co-operated with the Commissioner during the Commissioner's investigation of complaints and indeed has attempted to mislead the Commissioner.  The defendant’s failure to comply with orders of the Tribunal to pay costs ordered and, more significantly, to pay the compensation of $32,863.86 ordered on 14 March 2018 in favour of a complainant, is ongoing.  This, the Commissioner submitted, is indicative of a lack of respect for the orders and a lack of insight as to the seriousness of his conduct.

Conclusion:

The Court ordered that the name and other particulars of the defendant, NICHOLAS PATRICK LOGAN, be removed from the Roll of persons admitted to the legal profession kept by this Court on the application of the plaintiff, the Victorian Legal Services Commissioner (‘Commissioner’).  The defendant is to pay the Commissioner’s costs.

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Chen v Blockchain Global Ltd; Abel v Blockchain Global Ltd [2022] VSC 92 (28 February 2022)

The plaintiff applied for preservation of property.  If the seed phrase of Mr Chen or Mr Guo is lost, forgotten or corrupted, the Bitcoins will become inaccessible.  The Court, in making its orders, assessed whether destruction of the Bitcoin will vitiate the ultimate determination of the proceeding and whether an order preserving the Bitcoin will cause prejudice to the parties. 

Facts:

Mr Chen seeks relief under r 37.01(1) of the Rules.  He is the fifth defendant in proceeding no S ECI 2021 03329 (‘the Abel proceeding’) and the plaintiff in proceeding no S ECI 2020 03554 (‘the Chen proceeding’).  By a summons filed 15 November 2021 in the Chen proceeding, Mr Chen sought a mandatory injunction and/or an order under rule 37.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (“Rules”) that the Plaintiff and Second Defendant place their seed phrase in respect of the Security Wallet (as defined in the Plaintiff’s Amended Statement of Claim of 23 March 2021) into separate sealed envelopes (“Envelopes”) (the seed phrase will be verified by a member of the Court) and the Envelopes will be held in the custody of the Court pending the hearing and determination of this dispute or further order.

Mr Chen also filed a summons on 15 November 2021 in the Abel proceeding in substantially the same terms. Mr Chen does not, at this stage, seek relief in the Abel proceeding and seeks that the summons in the Abel proceeding be adjourned.   Mr Chen provided a proposed form of order in the Chen proceeding in which he sought that the Plaintiff and Second Defendant each place (and do all things necessary to place) their seed phrase in respect of the Security Wallet (as defined in the Plaintiff’s Amended Statement of Claim of 23 March 2021) into separate sealed envelopes (“Envelopes”) (each seed phrase will be verified by a member of the Court or by an affidavit from the that party’s solicitor confirming the veracity of the seed phrase) and  the Envelopes will be held in the custody of the Court pending the hearing and determination of this dispute or until further order.

As at 10 September 2021, the value of the Bitcoins was approximately $10,344,904.30 AUD.  The price of Bitcoin is extremely volatile.   It has lost 30% of its value since November 2021.  On 13 September 2021, the Court made a freezing order, upon the application by the plaintiffs in the Abel proceeding, in respect of the Bitcoins.

On 16 September 2021, the Court extended the freezing order until trial or further order.  The plaintiffs in the Abel proceeding relied upon an article published in the Australian Financial Review (the Article) outlining the existence of 117.33 Bitcoins which are the central focus of ongoing litigation.  The Security Wallet is a ‘2 of 2’ wallet which means that 2 out of 2 signatories need to authorise a transaction to make a transfer out of it.  As a result, the Bitcoins are accessible only by Mr Chen and Mr Guo entering their respective seed phrases into certain software.

In the event that the seed phrase of Mr Chen or Mr Guo is lost, forgotten or corrupted, the Bitcoins will become inaccessible.  All the Defendants claim ownership of the 117.33 Bitcoins, and therefore there is a possibility of either removing, disposing or dealing with the 117.33 Bitcoins to avoid any payment to the Plaintiffs.   The disposal of the 117.33 Bitcoins may result in a judgement which cannot be satisfied.

Issues:

I. Whether an order preserving the Bitcoin is relevant to the cause of action.

II. Whether destruction of the Bitcoin will vitiate the ultimate determination of the proceeding.

III. Whether an order preserving the Bitcoin will cause prejudice to the parties. 

Applicable law:

Supreme Court (General Civil Procedure) Rules 2015 (Vic) s 37.01(1)  - expressly grants the Court broad power to make an order for the interim preservation of any property in specie, whether or not in the possession, custody or power of any party. 

Greenberger v State of Victoria [2008] VSC 357 - provides that rule 37.01 or its various predecessors has been considered on several occasions by judges of this court. Each of those cases demonstrate that on such an application a court would not investigate the merits of a particular claim.

Pizzey Properties Pty Ltd v Edelstein [1977] VicRp 19[1977] VR 161 - provides that orders should not be made for the purpose of giving security for the satisfaction of a money judgment or in lieu of other orders restraining a party from behaving in a particular way which may be available in other circumstances under the rules. 

Johnson v Tobacco Leaf Marketing Board [1967] VicRp 45[1967] VR 427 - provides that when an application is based upon the provisions of that rule, an inquiry into the merits is not required. 

Analysis:

The Court’s proposed orders do not involve Mr Guo disturbing the safe storage of the single piece of paper that presently records his seed phrase.  That seed phrase may be readily copied in situ by photographing it or recording the seed phrase.  Mr Guo’s present single piece of paper concerning his seed phrase may remain where it is presently stored.  The Court’s proposed orders do not require Mr Guo to provide a record of the seed phrase ‘forthwith’ but gives him a reasonable time to arrange this. 

In the event that Mr Guo cannot comply with the orders of the Court, he will have the opportunity to provide that explanation to the Court.  The Court’s proposed orders allow the issue of verification to be properly addressed by the parties and considered by the Court.  Mr Chen’s proposed course of verification is, at present, based upon a step-by-step guide created by Mr Chen.  The Court is not in a position, upon the present material, to evaluate that process.  Further, there is no prejudice in the issue of verification being considered once the seed phrases are obtained.

Conclusion:

The Court adjourns Mr Chen’s summons in the Abel proceeding and reserves the costs.  Relief is granted in the Chen proceeding substantially in the form of the Court’s proposed orders.  It is the court's preliminary view that the issue of costs should be adjourned together with the further hearing of Mr Chen’s summons.  The parties are directed to confer and provide a form of orders to the Court by no later than 10:00am tomorrow or provide their form of order to the Court by that time and the matter will then be listed tomorrow.  The Court will shortly circulate a draft form of order to facilitate that conferral.

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ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (9 February 2022)

Intro:-

This is an appeal from the Full Court of the Federal Court of Australia.

Facts:-

Between 1977 and 2017, Mr Jamsek and Mr Whitby ("the Respondents") were engaged as truck drivers by the second appellant's predecessors in business and subsequently by the second appellant itself. That business has undergone several changes of ownership during the period of the respondents' engagements.

The respondents were initially engaged as employees of the company and drove trucks provided by the company. However, in late 1985 or early 1986, the company insisted that it would no longer employ the respondents, and would continue to use their services only if they purchased their trucks and entered into contracts to carry goods for the company. The respondents agreed to the new arrangement and each of Mr Jamsek and Mr Whitby set up a partnership with his wife. Those partnerships purchased trucks from the company and executed a written agreement with the company for the provision of delivery services. Thereafter, the respondents made deliveries as requested by the company. Each partnership invoiced the company for the delivery services provided, and was paid by it for those services. Part of the revenue earned was used to meet the partnerships' costs of operating the trucks. The net revenue earned was declared as partnership income and split between husband and wife for the purposes of income tax.

The 1993 contract and subsequent rate reviews

In 1993, Mr Whitby (for himself and on behalf of Mr Jamsek) and several other drivers approached the company and negotiated a new arrangement under which the partnerships would invoice the company on an hourly rate on the basis of a nine‑hour working day, although it was understood, and the contract provided, that actual hours worked might vary. The partnerships executed a written "Contract Carriers Arrangement" with the company in July 1993 ("the 1993 contract").

The 1993 contract included the following terms:

"1. The Contractors so named are:

a) Separate legal entities both from each other and THORN LIGHTING.

b) Able to work for other parties, providing that such work is not detrimental to either THORN LIGHTING or THORN LIGHTING customers.

c) To present an invoice for work carried out in the preceding week.

2. THORN LIGHTING and the Contractors have agreed:

1. The Contractors will:

a) Undertake carriage of goods as reasonably directed

b) Comply with all Acts, Ordinances, Regulations and By‑laws relating to the registration, third party insurance and general operation of the vehicle within New South Wales.

c) Pay all legal costs, such as tax and duty, payable in respect of the vehicle and keep the vehicle in a mechanically sound, road worthy and clean condition.

d) Be responsible for the vehicle equipment and gear, the safe loading of the vehicle and the securing and weather protection of the load.

e) Exercise all reasonable care and diligence in the carriage and safe keeping of the goods in their charge. Account for all goods by use of run sheets and return of signed delivery dockets or similar documents.

f) Hold at all times and on request produce for inspection, a current driver's licence issued in respect of a vehicle of the class of the vehicle in use and immediately notify THORN LIGHTING if the licence is suspended or cancelled.

g) Not engage or use the services of a driver for the vehicle without prior and continuing approval by THORN LIGHTING. Such driver is to be correctly licensed, suitably dressed, and in all other respects entirely to the satisfaction of THORN LIGHTING.

h) Obtain and maintain a public liability insurance policy for an amount of $2,000,000 or greater in respect of any liability incurred by the Contractor in performance of work for THORN LIGHTING.

Obtain and maintain a comprehensive motor insurance policy over the vehicle including cover for amount of $5,000,000 or greater for third party property damage in respect of one accident.

Ensure that such policies include an indemnity of THORN LIGHTING for any action of the Contractor to which the policy applies.

Produce on request a current receipted copy of such policies.

j) Immediately report any accident to the person in charge of the NSW Branch Warehouse and to attend to any legal requirements at the scene or subsequent to the accident.

k) Not offer his vehicle for sale with any guarantee of either continuity of work for THORN LIGHTING, or implied acceptance by THORN LIGHTING of the purchaser."

The agreement between the partnerships and the company was terminated in 2017. The respondents then commenced proceedings in the Federal Court of Australia seeking declarations in respect of statutory entitlements alleged to be owed to them as employees of the company pursuant to the Fair Work Act 2009 (Cth) ("the FW Act"), the Superannuation Guarantee (Administration) Act 1992 (Cth) ("the SGA Act") and the Long Service Leave Act 1955 (NSW) ("the LSL Act"). In the proceedings, a question arose as to whether the respondents were "employees" for the purposes of the FW Act and the SGA Act and/or "workers" for the purposes of the LSL Act.

The primary judge (Thawley J) concluded that the respondents were not employees of the company, and instead were independent contractors. The Full Court of the Federal Court of Australia (Perram, Wigney and Anderson JJ) allowed the respondents' appeal, holding that the respondents were employees of the company.

The reasons of the Full Court suffered from two errors of approach. The first was the significant attention devoted by that Court (and indeed the primary judge) to the manner in which the parties actually conducted themselves over the decades of their relationship. That was thought to be necessary because those courts took the view that a proper characterisation of the totality of the relationship required a consideration of how the parties' contract played out in practice. The second was the Full Court's reasoning that the disparity in bargaining power between the parties affected the contract pursuant to which the partnerships were engaged, so that the "reality" of the relationship between the company and each respondent was one of employment.

The reasoning of the Full Court cannot be sustained. The respondents were not employed by the company. They were members of partnerships which carried on the business of providing delivery services to the company. The appeal to this Court must be allowed.

This appeal was heard together with the appeal in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd ("CFMMEU v Personnel Contracting"). In the present case, as in CFMMEU v Personnel Contracting, there was no suggestion that the contract between the parties was a sham or had been varied or otherwise displaced by conduct of the parties. There was no claim by the respondents to set aside the contract either under statute or pursuant to equitable doctrines such as those relating to unconscionable conduct. In these circumstances, and for the reasons given in CFMMEU v Personnel Contracting, the character of the relationship between the parties in this case was to be determined by reference to the rights and duties created by the written agreement which comprehensively regulated that relationship. The circumstance that entry into the contract between the company and the partnerships may have been brought about by the exercise of superior bargaining power by the company did not alter the meaning and effect of the contract.

Issue:-

Were the Respondents employees of the Appellant pursuant to Fair Work Act 2009 (Cth) ("the FW Act"), the Superannuation Guarantee (Administration) Act 1992 (Cth) ("the SGA Act") and the Long Service Leave Act 1955 (NSW) ("the LSL Act")?

Consideration:-

The appellants emphasised the finding of the primary judge that the respondents, as members of their partnerships, were engaged in the conduct of their own businesses. That finding was clearly correct. Given that there is no basis for holding that the respondents were otherwise associated with the company, there is no basis for concluding that the respondents were employed by the company. The only relationship between the respondents and the company was that the respondents were members of partnerships that had agreed to make deliveries for the company.

On the orthodox approach to the interpretation of contracts, regard may be had to the circumstances surrounding the making of a contract[94]. The 1986 contract between the partnerships and the company came to be made because of the company's insistence that the only ongoing relationship between the respondents and the company would be that established by the 1986 contract and that the partnerships would own and operate the trucks which would transport the company's deliveries. Given that the genesis of the contract was the company's refusal to continue to employ the respondents as drivers, and the respondents' evident acceptance of that refusal, it is difficult to see how there could be any doubt that the respondents were thereafter no longer employees of the company.

The circumstance that this state of affairs was brought about by the exercise of superior bargaining power by the company weighed heavily with the Full Court; but that circumstance has no bearing on the meaning and effect of the bargains that were struck between the partnerships and the company. To say this is not to suggest that disparities in bargaining power may not give rise to injustices that call for a legal remedy. The law in Australia does provide remedies for such injustices under both the general law and statute. Those remedies were not invoked in this case. As has been noted earlier, the respondents did not claim that the contracts with the partnerships were shams. Nor did they seek to make a claim under statute or otherwise to challenge the validity of the contracts that were made by the partnerships. In Australia, claims of sham cannot be made by stealth under the obscurantist guise of a search for the "reality" of the situation[95].

Even if this disguised submission of sham were to be countenanced, the reality of the situation is that the partnerships, and not the respondents individually, owned and operated the trucks. The partnerships contracted with the company and invoiced the company for delivery services provided by the operation of the trucks. The partnerships earned income from the company, incurred expenses associated with the ownership and operation of the trucks, and took advantage of tax benefits of the structure. It is not possible to square the contention that the respondents were not conducting a business of their own as partners with the circumstance that, for many years, they enjoyed the advantages of splitting the income generated by the business conducted by the partnerships with their fellow partners.

Conclusion:-

The appeal should be allowed, and the orders made by the Full Court on 16 July 2020 be set aside.

Added a post 

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 (9 February 2022)

Intro:-

This is an appeal from the Full Court of the Federal Court of Australia.

Facts:-

The Respondent (trading as "Construct") is a labour-hire company based in Perth, which engages workers to supply their labour to building clients. Construct's major client was Hanssen Pty Ltd ("Hanssen"), a builder of high‑rise residential apartments and offices[1].

In 2016, Mr McCourt was a 22‑year‑old British backpacker who had travelled to Australia on a working holiday visa. Seeking a source of income, and with limited prior work experience as a part‑time brick‑layer and in hospitality, Mr McCourt obtained a "white card", which enabled him to work on construction sites. He contacted Construct and attended an interview on 25 July 2016. At the interview, Mr McCourt indicated that he was prepared to do any construction work, and was available to start work immediately. He confirmed to the Construct representative that he owned a hard hat, steel‑capped boots and hi‑vis clothing, having purchased them for less than $100 in the hope of finding construction work. He was offered a role and presented with paperwork to sign. Among the documents he signed was an Administrative Services Agreement ("ASA"), which described Mr McCourt as a "self‑employed contractor".

The day after Mr McCourt's interview, Construct contacted him to offer him work at Hanssen's Concerto project site beginning the following day. When he arrived on site, Mr McCourt was given the Hanssen Site Safety Induction Form and Hanssen Site Rules. He was told that he would be supervised primarily by a leading hand employed by Hanssen, Ms O'Grady[3]. Mr McCourt did not sign a contract with Hanssen.

Mr McCourt worked at the Concerto site between 27 July and 6 November 2016. While on site, Mr McCourt worked under the supervision and direction of Hanssen supervisors, including Ms O'Grady. Although Construct staff sometimes conducted site visits, they never directed Mr McCourt in the performance of work, except to draw his attention to workplace health and safety issues in the manner of his work. Mr McCourt's primary tasks were described as follows:

"For a period of months, he engages in basic labouring tasks; he takes out the bins, cleans workspaces and moves materials. He is not an entrepreneur nor a skilled artisan; he is paid by the hour, and when at work, is told what to do and how to do it."

On 6 November 2016, Mr McCourt finished work at the Concerto site and left Perth. He returned the following March and, on 14 March 2017, recommenced work on the Concerto project. On 26 June 2017, he began working on Hanssen's Aire project, performing work that was substantially identical to the Concerto project. On 30 June 2017, Mr McCourt was told that he was not to continue working at the Aire project. Thereafter, Mr McCourt did not receive any work from Construct.

Mr McCourt and the Construction, Forestry, Maritime, Mining and Energy Union commenced proceedings against Construct seeking orders for compensation and penalties pursuant to ss 545, 546 and 547 of the Fair Work Act 2009 (Cth) ("the Act"). The claims were made on the basis that Construct had not paid Mr McCourt according to his entitlement, as an employee of Construct, to payment in accordance with the Building and Construction General On-site Award 2010. Similar orders were sought against Hanssen, on the basis that it was liable as an accessory for Construct's alleged breaches.

The ASA and related documents

Given its central importance to the characterisation of Mr McCourt's relationship with Construct, it is desirable to set out the terms of the ASA in full:

"RECITAL

Construct is an administrative services agency operating essentially within the building industry, liaising between builders (or their contractors) (both described as 'builders') and self‑employed contractors for the provision of labour by self‑employed contractors to builders and supplying to the self-employed contractors financial administrative services.

The Contractor requires Construct to keep the Contractor informed of opportunities for the Contractor to provide builders with labour services and to provide the Contractor with financial administrative support to enable the Contractor to concentrate on maximising the supply of quality labour to builders.

IT IS AGREED

1. Construct's Responsibilities

Construct shall:

(a) Use reasonable endeavours to keep informed of opportunities in the building industry for the Contractor to supply labour to builders identified by Construct;

(b) Inform the Contractor when, and on what basis, an opportunity arises for the Contractor to supply labour to a builder;

(c) Liaise between builders and the Contractor regarding the means by which the Contractor shall supply labour to such builders, including the duration that the builder requires such labour, the place at which labour is to be supplied, the daily hours of work during which labour is to be supplied and any other terms and conditions upon which labour is to be supplied by the Contractor to the builder;

(d) Subject to performance by the Contractor of his or its obligations under this Agreement, underwrite payment to the Contractor, within 7 days of receipt of an invoice from the Contractor, of all payment rates payable by the builder in respect of the supply of labour to the builder by the Contractor, including payment rates negotiated by the Contractor directly with the builder;

(e) Complete administrative forms and undertake necessary correspondence with Government authorities as may be required under any law of Western Australia relating to labour supplied to builders under this agreement, other than the completion by the Contractor of his taxation returns, including any instalment activity statement or business activity statements.

2. Construct's Rights

Construct shall be entitled to:

(a) Negotiate with any builder a payment rate for the supply by the Contractor of labour to the builder, provided that the Contractor shall be at liberty to negotiate with the builder an increase in the payment rate and any other terms and conditions upon which labour is to be supplied by the Contractor to the builder, subject to the Contractor properly performing his obligations under this Agreement;

(b) Negotiate with the builder the basis upon which Construct is to be remunerated on a commission basis as a percentage of the agreed payment rate for the supply of services by the Contractor to the builder;

(c) Negotiate with the builder for remuneration in respect of any increase in the payment rate negotiated directly by the Contractor with the builder;

(d) Withhold from the Contractor payment of any monies reasonably required by Construct to compensate it for any claim made against Construct by the builder in respect of the supply of labour by the Contractor to the builder.

3. The Contractor's Warranties

The Contractor warrants that:

(a) He has provided Construct with true and accurate information regarding his work experience and capability for the supply of labour to builders;

(b) He is self‑employed;

(c) He does not require Construct to guarantee the Contractor work of any type or of any duration;

(d) That he shall keep Construct fully informed of the outcome of negotiations with the builder by the Contractor in order to ensure that Construct is promptly and accurately informed of any higher rate of payment agreed by the builder and the value of any other terms and conditions agreed with the builder by the Contractor;

(e) Construct shall not be liable to pay the Contractor any amounts in respect of annual leave, sick leave, long service leave or any other statutory entitlement required in an employer-employee relationship.

4. The Contractor's Obligations

The Contractor shall:

(a) Co-operate in all respects with Construct and the builder in the supply of labour to the Builder;

(b) Ensure accurate records are maintained as to the amount of labour supplied to the builder by the Contractor;

(c) Attend at any building site as agreed with the Builder at the time required by the Builder, and shall supply labour to the Builder (subject to notification under clause 5(c)) for the duration required by the Builder in a safe, competent and diligent manner;

(d) Indemnify Construct against any breach by the Contractor of sub‑paragraph 4(c) hereof;

(e) Supply such tools of trade and equipment, for safety or other reasons, as may be required by the builder, in respect of which the Contractor is solely responsible;

(f) Possess all statutory certification relevant to the supply of labour, and shall ensure that these certificates be both current and valid in Western Australia;

(g) In the event that the Contractor reasonably considers that his safety is endangered by conditions on the building site, promptly report the unsafe conditions to Worksafe if unable to have the unsafe conditions rectified by the builder promptly;

(h) Not represent himself as being an employee of Construct at any time or otherwise represent himself as authorised to act on behalf of Construct other than strictly under the terms of this Agreement.

5. The Contractor's Rights

The Contractor is entitled to:

(a) Receive payment from Construct of all amounts negotiated with the builder by Construct and the Contractor within seven (7) days of the issue by the Contractor of a valid invoice delivered to Construct by the Contractor for the supply of labour to the builder by the Contractor;

(b) Refuse to accept any offer of work from a builder;

(c) Notify the builder and Construct on 4 hours notice that he is no longer available for the supply of labour under the terms of this Agreement."

A number of observations may be made here about the terms of the ASA. First, Recital A might be said to suggest that Construct was engaged merely in seeking out business opportunities for Mr McCourt. But the operative terms of the ASA and the factual matrix in which it was made make it clear that Construct's business was more substantial than introducing labourers to builders. Under cl 2(a), Construct was empowered to fix Mr McCourt's remuneration, subject to the possibility that he might negotiate extra benefits from Hanssen. And under cll 1(d) and 5(a), Construct assumed the obligation to pay Mr McCourt for his work with Hanssen.

Once Mr McCourt accepted an offer of work, his core obligation pursuant to cl 4(a) was to "[c]o‑operate in all respects with Construct and [Hanssen] in the supply of labour to [Hanssen]". This included, pursuant to cl 4(c), the obligations to attend Hanssen's worksite at the nominated time, and to supply labour to Hanssen "for the duration required by [Hanssen] in a safe, competent and diligent manner".

Similar obligations were contained in Construct's Contractor Safety Induction Manual signed by Mr McCourt. By that document, which was found by the Full Court to have contractual force between Mr McCourt and Construct, Mr McCourt agreed, inter alia: to follow all worksite safety rules and procedures given by Construct's "host client", and to report any safety hazards, incidents or injuries to the site supervisor or administrator and to Construct.

Before both the primary judge and the Full Court, the facts surrounding the work practices of Construct and Hanssen, and the specific arrangements vis-à-vis Mr McCourt, were canvassed at length. Given there was no challenge to the validity of the ASA nor any suggestion that the contract had been varied by conduct, a review of how the parties went about discharging their obligations to each other after execution of the ASA was unwarranted.

The primary judge applied a "multifactorial approach" to the question whether Mr McCourt was an employee or an independent contractor, in which both the terms of the ASA and the work practices imposed by each of Construct and Hanssen were relevant.

The primary judge's conclusion was upheld on appeal by the Full Court of the Federal Court of Australia.

Issue:-

Was Mr McCourt an employee of Construct for the purposes of Fair Work Act, 2009 (Cth)?

Consideration:-

The employment relationship and the contract of employment

In Commonwealth Bank of Australia v Barker[69], French CJ, Bell and Keane JJ said:

"The employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment."

An employment relationship will not always be defined exclusively by a contract between the parties]. Historically, the employment relationship was recognised and regulated by the law before the law of contract came to govern the relationship. An employment relationship, though principally based in contract, may be affected by statutory provisions and by awards made under statutes It may also be that aspects of the way in which a relationship plays out "on the ground" are relevant for specific statutory purposes. So, for example, a statute may operate upon an expectation generated in one party by the conduct of another, even though that expectation does not give rise to a binding agreement.

A contract of employment may be partly oral and partly in writing, or there may be cases where subsequent agreement or conduct effects a variation to the terms of the original contract or gives rise to an estoppel or waiver. In such cases, it may be that the imposition by a putative employer of its work practices upon the putative employee manifests the employer's contractual right of control over the work situation; or a putative employee's acceptance of the exercise of power may show that the putative employer has been ceded the right to impose such practices.

While there may be cases where the rights and duties of the parties are not found exclusively within a written contract, this was not such a case. In cases such as the present, where the terms of the parties' relationship are comprehensively committed to a written contract, the validity of which is not challenged as a sham nor the terms of which otherwise varied, waived or the subject of an estoppel, there is no reason why the legal rights and obligations so established should not be decisive of the character of the relationship.

Not only is there no reason why, subject to statutory provisions or awards, established legal rights and obligations in a contract that is entirely in writing should not exclusively determine the relationship between the parties but there is every reason why they should. The "only kinds of rights with which courts of justice are concerned are legal rights". The employment relationship with which the common law is concerned must be a legal relationship. It is not a social or psychological concept like friendship. There is nothing artificial about limiting the consideration of legal relationships to legal concepts such as rights and duties. By contrast, there is nothing of concern to the law that would require treating the relationship between the parties as affected by circumstances, facts, or occurrences that otherwise have no bearing upon legal rights.

In Narich Pty Ltd v Commissioner of Pay‑roll Tax, approving the earlier decision in Australian Mutual Provident Society v Chaplin, in the course of delivering the reasons of the Privy Council dismissing the appeal from the Supreme Court of New South Wales, Lord Brandon of Oakbrook said that:

"where there is a written contract between the parties whose relationship is in issue, a court is confined, in determining the nature of that relationship, to a consideration of the terms, express or implied, of that contract in the light of the circumstances surrounding the making of it; and it is not entitled to consider also the manner in which the parties subsequently acted in pursuance of such contract."

The one exception to this principle was said to be the case where subsequent conduct could be shown to have varied the terms of the contract[79]. To similar effect, in Connelly v Wells, following Narich, Gleeson CJ said:

"Where the relationship between two persons is founded in contract, the character of the relationship depends upon the meaning and effect of the contract. In the absence of a suggestion that a contract was varied after it was originally made, its meaning and effect must be determined as at the time it was entered into. If the contract is in writing, then the court which is considering the nature of the relationship between the parties is directed to an examination of the terms of the written agreement in the light of the circumstances surrounding its making."

Numerous other Australian courts have continued to recognise as authoritative the decisions in Chaplin and Narich.

Uncertainty in relation to whether a relationship is one of employment may sometimes be unavoidable. It is the task of the courts to promote certainty with respect to a relationship of such fundamental importance. Especially is this so where the parties have taken legitimate steps to avoid uncertainty in their relationship. The parties' legitimate freedom to agree upon the rights and duties which constitute their relationship should not be misunderstood. It does not extend to attaching a "label" to describe their relationship which is inconsistent with the rights and duties otherwise set forth. To do so would be to elevate their freedom to a power to alter the operation of statute law to suit themselves or, as is more likely, to suit the interests of the party with the greater bargaining power.

Where the parties have comprehensively committed the terms of their relationship to a written contract the validity of which is not in dispute, the characterisation of their relationship as one of employment or otherwise proceeds by reference to the rights and obligations of the parties under that contract. Where no party seeks to challenge the efficacy of the contract as the charter of the parties' rights and duties, on the basis that it is either a sham or otherwise ineffective under the general law or statute, there is no occasion to seek to determine the character of the parties' relationship by a wide‑ranging review of the entire history of the parties' dealings. Such a review is neither necessary nor appropriate because the task of the court is to enforce the parties' rights and obligations, not to form a view as to what a fair adjustment of the parties' rights might require.

In this respect, the principles governing the interpretation of a contract of employment are no different from those that govern the interpretation of contracts generally. The view to the contrary, which has been taken in the United Kingdom, cannot stand with the statements of the law in Chaplin and Narich.

The parties' description of their relationship

To say that the legal character of a relationship between persons is to be determined by the rights and obligations which are established by the parties' written contract is distinctly not to say that the "label" which the parties may have chosen to describe their relationship is determinative of, or even relevant to, that characterisation.

Subject to statute, under the common law the parties are free to agree upon the rights and obligations by which they are to be bound. But the determination of the character of the relationship constituted by those rights and obligations is a matter for the court.

As a matter of principle, however, it is difficult to see how the expression by the parties of their opinion as to the character of their relationship can assist the court, whose task it is to characterise their relationship by reference to their rights and duties. Generally speaking, the opinion of the parties on a matter of law is irrelevant. Even if it be accepted that there may be cases where descriptive language chosen by the parties can shed light on the objective understanding of the operative provisions of their contract, the cases where the parties' description of their status or relationship will be helpful to the court in ascertaining their rights and duties will be rare.

Having made these general observations, one may turn now to consider the relationship between the present parties.

Mr McCourt served in the business of Construct

In this Court, Construct was content to disavow the notion that Mr McCourt was carrying on his own business. That disavowal might be said to be no more than recognition that any suggestion to that effect was unsustainable. As both the primary judge and the Full Court appreciated, Mr McCourt could not sensibly be said to have been carrying on business on his own account. That was plainly correct, notwithstanding the language used in the ASA to describe Mr McCourt's occupation which suggested otherwise.

Construct submitted that it was "simply a finder of labour". But that ignores the complex suite of rights and obligations of Construct vis-à-vis Mr McCourt that had been established under the ASA. Construct was authorised: to fix Mr McCourt's reward for his work (cl 2(a)); to act as Mr McCourt's paymaster (cll 1(d), 2(d)); and to terminate Mr McCourt's engagement should he fail in any respect to obey the directions of Construct or Hanssen (see cl 4(a), (c)). And, as will be seen, by cl 4(a) Construct retained a right of control over Mr McCourt that was fundamental to its business as a labour‑hire agency. There would be no reason for the existence of such obligations if Construct were not in the business of labour hire, but rather in the business of "introducing" suppliers of labour to builders and leaving those parties to sort their own affairs.

In terms of the test suggested by Windeyer J in Marshall, it is impossible to say that Mr McCourt was in business on his own account. The core of Mr McCourt's obligation to Construct under the ASA was his promise to work as directed by Construct or by its customer. Mr McCourt's obligation to work was meaningful only because the benefit of that promise was ventured by Construct as an asset of its labour‑hire business.

Mr McCourt worked subject to the control of Construct

Like the "own business/employer's business" dichotomy, the existence of a right of control by a putative employer over the activities of the putative employee serves to sensitise one to the subservient and dependent nature of the work of the employee, so as to assist in an assessment of whether a relationship is properly to be regarded as a contract of service rather than a contract for services.

Construct submitted that control was a necessary, though not sufficient, condition of a contract of service, citing Zuijs v Wirth Brothers Pty Ltd[127]. It was submitted that Hanssen alone supervised and directed every aspect of Mr McCourt's work, and it was emphasised that Construct was not entitled, under either the LHA or the ASA, to enter Hanssen's site and issue directions to Mr McCourt regarding the performance of his work. So much may be accepted. But this Court in Stevens, and indeed in Zuijs itself, emphasised that it is the right of a person to control the work of the other, rather than the detail of the actual exercise of control, which serves to indicate that a relationship is one of employer and employee.

Under the ASA, Construct was entitled to determine for whom Mr McCourt would work. Once assigned to a client, Mr McCourt was obliged by cl 4(a) to "[c]o-operate in all respects with Construct and the builder in the supply of labour to the Builder". That obligation must be understood in context. It was not directed towards the carrying out of any particular task, or the effecting of any specific result, for Hanssen. There was no suggestion that the work Mr McCourt agreed to do would involve the exercise of any discretion on his part, either as to what he would do or as to how he would do it. Mr McCourt's obligation to "supply ... labour" in cooperation with Hanssen necessarily meant that he agreed, for the duration of the assignment, to work in accordance with Hanssen's directions. He was simply not permitted to do otherwise. Had Mr McCourt breached cl 4(a), Construct (not Hanssen) would have been entitled to terminate the ASA.

Mr McCourt's performance of that obligation was unambiguously central to Construct's business of supplying labour to builders. In referring Mr McCourt to Hanssen, Construct was exercising, and commercialising, its right to control the work that Mr McCourt would do and how he would do it. The marketability of Construct's services as a labour‑hire agency turned on its ability to supply compliant labour; without that subservience, that labour would be of no use to Construct's clients. That right of control was therefore the key asset of Construct's business. Its significance was not diminished by the circumstance that the minutiae of Mr McCourt's performance of daily tasks were at the direction of Hanssen. Indeed, the right of control held by Construct over Mr McCourt explains why there was no need for any contractual relationship between Mr McCourt and Hanssen in order to support Hanssen's ability to issue day‑to‑day directions to Mr McCourt.

Mr McCourt had no right to exercise any control over what work he was to do and how that work was to be carried out. That state of affairs was attributable to the ASA, by which Mr McCourt's work was subordinated to Construct's right of control.

Mr McCourt's designation as "the Contractor" is of no moment

The ASA described Mr McCourt as "the Contractor". But the effect of the rights and duties created by the ASA was that Mr McCourt was engaged by Construct to serve Construct in its business. The rights and duties agreed between Construct and Mr McCourt leave no room for ambiguity as to the character of that relationship. For the reasons stated above, that the parties have described their relationship a certain way cannot change the character of the relationship established by their rights and obligations.

Conclusion

Under the ASA, Mr McCourt promised Construct to work as directed by Construct and by Construct's customer, Hanssen. Mr McCourt was entitled to be paid by Construct in return for the work he performed pursuant to that promise. That promise to work for Construct's customer, and his entitlement to be paid for that work, were at the core of Construct's business of providing labour to its customers. The right to control the provision of Mr McCourt's labour was an essential asset of that business. Mr McCourt's performance of work for, and at the direction of, Hanssen was a direct result of the deployment by Construct of this asset in the course of its ongoing relationship with its customer.

In these circumstances, it is impossible to conclude other than that Mr McCourt's work was dependent upon, and subservient to, Construct's business. That being so, Mr McCourt's relationship with Construct is rightly characterised as a contract of service rather than a contract for services. Mr McCourt was Construct's employee.

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