Question:
<citphrase id="cp0.0">cited from="[2007] FCA 599">environment protection</citphrase>
<citphrase id="cp0.1">cited from="[2007] FCA 599">commercial fishing within boundaries of a reserve</citphrase>
<citphrase id="cp0.2">cited from="[2007] FCA 599">civil penalty proceedings</citphrase>
<citphrase id="cp0.3">cited from="[2007] FCA 599">joint submissions on penalty</citphrase>
<citphrase id="cp0.4">cited from="[2007] FCA 599">appropriate penalty</citphrase>
<citphrase id="cp1.0">cited from="[2004] FCA 1317">environment</citphrase>
<citphrase id="cp1.1">cited from="[2004] FCA 1317">civil penalties</citphrase>
<citphrase id="cp1.2">cited from="[2004] FCA 1317">contravention of s 16(1) of the environment protection and biodiversity conservation act 1999 (cth) (' epbc act ') by taking an action that had a significant impact on the ecological character of a declared ramsar wetland</citphrase>
<citphrase id="cp1.3">cited from="[2004] FCA 1317">contravention deliberate</citphrase>
<citphrase id="cp1.4">cited from="[2004] FCA 1317">criteria to be taken into account</citphrase>
<citphrase id="cp1.5">cited from="[2004] FCA 1317">epbc act , s 481(3) environment</citphrase>
<citphrase id="cp1.6">cited from="[2004] FCA 1317">prohibitory injunctions</citphrase>
<citphrase id="cp1.7">cited from="[2004] FCA 1317">orders preventing further damage to wetland</citphrase>
<citphrase id="cp1.8">cited from="[2004] FCA 1317">repair orders</citphrase>
<citphrase id="cp1.9">cited from="[2004] FCA 1317">order to plant tree seedlings</citphrase>
<citphrase id="cp1.10">cited from="[2004] FCA 1317">epbc act , ss 475(2), 479</citphrase>
<citphrase id="cp2.0">cited from="[2004] FCAFC 72">trade practices</citphrase>
<citphrase id="cp2.1">cited from="[2004] FCAFC 72">civil penalty</citphrase>
<citphrase id="cp2.2">cited from="[2004] FCAFC 72">contravention of s 10 of the petroleum retail marketing sites act 1980 (cth)</citphrase>
<citphrase id="cp2.3">cited from="[2004] FCAFC 72">parties present joint submissions on the appropriate pecuniary penalty</citphrase>
<citphrase id="cp2.4">cited from="[2004] FCAFC 72">direction under federal court of australia act 1976 (cth) asking whether the court must consider whether the proposed amount is within the permissible range and, if so, impose the "agreed" penalty</citphrase>
<citphrase id="cp2.5">cited from="[2004] FCAFC 72">powers and responsibilities of court faced with joint submission on penalty.</citphrase>
<citphrase id="cp4.0">cited from="[2002] NSWSC 483">corporations</citphrase>
<citphrase id="cp4.1">cited from="[2002] NSWSC 483">disqualification order from managing a corporation</citphrase>
<citphrase id="cp4.2">cited from="[2002] NSWSC 483">relevant principles and factors</citphrase>
<citphrase id="cp4.3">cited from="[2002] NSWSC 483">contrition</citphrase>
<citphrase id="cp4.4">cited from="[2002] NSWSC 483">impossibility of order limited to public companies</citphrase>
<citphrase id="cp4.5">cited from="[2002] NSWSC 483">disqualified person can later apply for permission on a restricted or conditional basis</citphrase>
<citphrase id="cp4.6">cited from="[2002] NSWSC 483">compensation order</citphrase>
<citphrase id="cp4.7">cited from="[2002] NSWSC 483">relevant principles</citphrase>
<citphrase id="cp4.8">cited from="[2002] NSWSC 483">difficulty of differentiation between defendants</citphrase>
<citphrase id="cp4.9">cited from="[2002] NSWSC 483">pecuniary penalty order</citphrase>
<citphrase id="cp4.10">cited from="[2002] NSWSC 483">relevant principles and factors</citphrase>
<citphrase id="cp4.11">cited from="[2002] NSWSC 483">totality principle</citphrase>
<citphrase id="cp4.12">cited from="[2002] NSWSC 483">relevance of multiple contraventions</citphrase>
<citphrase id="cp4.13">cited from="[2002] NSWSC 483">exoneration</citphrase>
<citphrase id="cp4.14">cited from="[2002] NSWSC 483">appearance of honesty</citphrase>
<citphrase id="cp4.15">cited from="[2002] NSWSC 483">relationship between civil and criminal prosecution.</citphrase>
<citphrase id="cp5.0">cited from="[2002] FCA 559">trade practices</citphrase>
<citphrase id="cp5.1">cited from="[2002] FCA 559">antitrust contraventions</citphrase>
<citphrase id="cp5.2">cited from="[2002] FCA 559">penalties</citphrase>
<citphrase id="cp5.3">cited from="[2002] FCA 559">principles to be taken into account</citphrase>
<citphrase id="cp7.0">cited from="[1996] FCA 1134">[ database search ] [ name search ] [ recent decisions ] [ noteup ] [ lawcite ] [ help ] n w frozen foods proprietary ltd v australian competition  consumer commission [1996] fca 1134 (20 december 1996)    trade practices act</citphrase>
<citphrase id="cp7.1">cited from="[1996] FCA 1134">penalties under s.76 for contraventions of part iv</citphrase>
<citphrase id="cp7.2">cited from="[1996] FCA 1134">price fixing</citphrase>
<citphrase id="cp7.3">cited from="[1996] FCA 1134">effect of agreement between a.c.c.c. and corporation on joint submissions proposing particular orders</citphrase>
<citphrase id="cp7.4">cited from="[1996] FCA 1134">desirability of settlement of such cases</citphrase>
<citphrase id="cp7.5">cited from="[1996] FCA 1134">penalty cases not criminal prosecutions</citphrase>
<citphrase id="cp7.6">cited from="[1996] FCA 1134">matters relevant to penalty</citphrase>
<citphrase id="cp7.7">cited from="[1996] FCA 1134">object of ensuring compliance with the act by deterrence</citphrase>
<citphrase id="cp7.8">cited from="[1996] FCA 1134">effect of undertaking by corporation of a compliance programme agreed with the commission</citphrase>
<citphrase id="cp7.9">cited from="[1996] FCA 1134">difficulties in comparing penalties in other cases with that proposed for the instant case</citphrase>
<citphrase id="cp7.10">cited from="[1996] FCA 1134">importance of the particular market</citphrase>
<citphrase id="cp7.11">cited from="[1996] FCA 1134">significance of identity of corporation to be penalised where it was a member of a group</citphrase>
<citphrase id="cp7.12">cited from="[1996] FCA 1134">significance of whether a corporation has previously contravened</citphrase>
<citphrase id="cp7.13">cited from="[1996] FCA 1134">inappropriateness of diminishing the credit to be given a corporation for co-operation and admission of liability by reference to any costs saving it may achieve thereby</citphrase>
<citphrase id="cp7.14">cited from="[1996] FCA 1134">reference to u.s. law conceding the u.s. federal trade commission "a special competence in formulating remedies"</citphrase>
<citphrase id="cp7.15">cited from="[1996] FCA 1134">discussion of the question for the court where penalty is the subject of an agreed joint submission.</citphrase>
<citphrase id="cp8.0">citing from="[2010] FCA 58">environment</citphrase>
<citphrase id="cp8.1">citing from="[2010] FCA 58">pecuniary civil penalty sought</citphrase>
<citphrase id="cp8.2">citing from="[2010] FCA 58">declaration of contravention sought</citphrase>
<citphrase id="cp8.3">citing from="[2010] FCA 58">statement of agreed facts provided by parties  declarations</citphrase>
<citphrase id="cp8.4">citing from="[2010] FCA 58">statement of agreed facts adduced as evidence under s 191 evidence act</citphrase>
<citphrase id="cp8.5">citing from="[2010] FCA 58">whether agreed facts are evidence sufficient to support declaration</citphrase>
<citphrase id="cp9.0">citing from="[2009] NSWLEC 137">environmental offences; prosecution :</citphrase>
<citphrase id="cp9.1">citing from="[2009] NSWLEC 137">sentence</citphrase>
<citphrase id="cp9.2">citing from="[2009] NSWLEC 137">clearing native vegetation</citphrase>
<citphrase id="cp9.3">citing from="[2009] NSWLEC 137">offence of medium objective gravity</citphrase>
<citphrase id="cp9.4">citing from="[2009] NSWLEC 137">conduct offended against legislative objects</citphrase>
<citphrase id="cp9.5">citing from="[2009] NSWLEC 137">high degree of environmental harm</citphrase>
<citphrase id="cp9.6">citing from="[2009] NSWLEC 137">conduct premeditated, intentional and with knowledge of its illegality</citphrase>
<citphrase id="cp9.7">citing from="[2009] NSWLEC 137">risk of environmental harm forseeable and preventable</citphrase>
<citphrase id="cp9.8">citing from="[2009] NSWLEC 137">mitigating subjective circumstances</citphrase>
<citphrase id="cp9.9">citing from="[2009] NSWLEC 137">lack of prior criminality</citphrase>
<citphrase id="cp9.10">citing from="[2009] NSWLEC 137">prior good character</citphrase>
<citphrase id="cp9.11">citing from="[2009] NSWLEC 137">plea of guilty</citphrase>
<citphrase id="cp9.12">citing from="[2009] NSWLEC 137">delay in plea reduced its utilitarian value</citphrase>
<citphrase id="cp9.13">citing from="[2009] NSWLEC 137">remorse</citphrase>
<citphrase id="cp9.14">citing from="[2009] NSWLEC 137">acceptance of requirement to carry out remedial work under statutory direction</citphrase>
<citphrase id="cp9.15">citing from="[2009] NSWLEC 137">assistance to authorities after a delay</citphrase>
<citphrase id="cp9.16">citing from="[2009] NSWLEC 137">consistency in sentencing.</citphrase>
</citphrases>
<citances>
<sentence from="[2010] FCA 58" id="cs0">In addition to the matters specified in subs (a)-(d) of s 481(3), matters relevant to determining the pecuniary penalty include: the need to deter contravention of the EPBC Act by the party concerned and by the public in general: Trade Practices Commission v CSR Ltd [1991] ATPR 41-076 at 52,152 and Minister for Environment Heritage and the Arts v Lamattina [2009] FCA 753 at [47] ; the extent to which the contravener has co-operated during investigations and subsequent proceedings; Minister for Environment and Heritage v Warne [2007] FCA 599: see however Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 at [73] where Sackville J expressed reservation on this point; whether the contravener has taken remedial action to minimise environmental damage: Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 at [58] ; whether the contravener has any history of other contravening behaviour; Minister for Environment and Heritage v Warne [2007] FCA 599 at [15]- [16]; Minister for Environment Heritage and the Arts v Lamattina [2009] FCA 753 at [27] - [29] and [74]. </sentence>
<sentence from="[2009] NSWLEC 137" id="cs1">9 Most importantly, the sentence of the court needs to operate as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597. The purpose of general deterrence is particularly relevant when imposing a sentence for offences of clearing of native vegetation contrary to law: see Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 ; (2006) 146 LGERA 349 at [59] , [71]-[80]; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242 ; (2006) 145 LGERA 189 at [103] - [106]; Director-General of the Department of Environment and Climate Change v Taylor [2007] NSWLEC 530 at [31] - [33] ; Director-General of the Department of Environment and Climate Change v Wilton [2008] NSWLEC 297 at [77] ; Climate Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4 ; (2009) 165 LGERA 256 at [81] - [88]; and Pittwater Council v Scahill [2009] NSWLEC 12 ; (2009) 165 LGERA 289 at [45] ; Lamattina  Anor v Gould [2009] SASC 130 (15 May 2009) at [73] and Minister for Environment, Heritage and the Arts v Lamattina [2009] FCA 753 (17 July 2009) at [47]. 89 Finally, although concerning different statutory provisions in another jurisdiction, I also note the penalties imposed for clearing native vegetation in breach of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in Minister for the Environment and Heritage v Greentree (No. 3) [2004] FCA 1317 ; (2004) 136 LGERA 89 and Minister for the Environment, Heritage and the Arts v Lamattina [2009] FCA 753.  12 On land used or proposed to be used for purposes of agriculture, clearing of native vegetation might be intended to increase the grazing productivity (such as increasing pasture and stocking rate), change from a financially lower yielding to a financially higher yielding agricultural use (such as from grazing to cropping) or facilitate more practical and cost effective operations, including of machinery and equipment, also with the expectation of an increase in the capital value of the land. Sentencing courts have repeatedly noted that offenders have cleared native vegetation for commercial gain: see, as examples, Piva v Brinkworth (1992) 59 SASR 92 at 96; Minister for the Environment and Heritage v Greentree (No. 3) [2004] FCA 1317 ; (2004) 136 LGERA 89 at [65] and see also [47], [48], [59] and [61]; Director-General Department of Environment and Climate Change v Wilton [2008] NSWLEC 297 at [51] , [76]; Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4 ; (2009) 165 LGERA 256 at [78] ; Lamattina  Anor v Gould [2009] SASC 130 at [3] , [17] and [19]; Minister for Environment, Heritage and the Arts v Lamattina [2009] FCA 753 at [39] and [68].</sentence>
</citances>
<legistitles>
<title id="l0">CRIMES ACT 1914 </title>
<title id="l1">CRIMES ACT 1914 - SECT 4AA Penalty units</title>
<title id="l2">ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 </title>
<title id="l3">ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 - SECT 18 Actions with significant impact on listed threatened species or endangered community prohibited without approval</title>
<title id="l4">ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 - SECT 475 Injunctions for contravention of the Act</title>
<title id="l5">ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 - SECT 481 Federal Court may order person to pay pecuniary penalty for contravening civil penalty provision</title>
<title id="l6">ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 - SECT 484 Persons involved in contravening civil penalty provision</title>
<title id="l7">ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 - SECT 494 Civil penalties for executive officers of bodies corporate</title>
<title id="l8">FEDERAL COURT OF AUSTRALIA ACT 1976 </title>
<title id="l9">FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 21 Declarations of right</title>
<title id="l10">FEDERAL COURT RULES </title>
<title id="l11">NATIVE VEGETATION ACT 1991 </title>
<title id="l12">NATIVE VEGETATION ACT 1991 - SECT 26 </title>
<title id="l13">NATIVE VEGETATION ACT 1991 - SECT 30 </title>
<title id="l14">NATIVE VEGETATION ACT 1991 - SECT 31B </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2006] FCAFC 61">migration</citphrase>
<citphrase id="cp0.1">cited from="[2006] FCAFC 61">application for business skills migrant visa</citphrase>
<citphrase id="cp0.2">cited from="[2006] FCAFC 61">failure to satisfy regulation 131.214</citphrase>
<citphrase id="cp0.3">cited from="[2006] FCAFC 61">procedural fairness</citphrase>
<citphrase id="cp0.4">cited from="[2006] FCAFC 61">opportunity to respond to critical issue on which decision likely to turn</citphrase>
<citphrase id="cp0.5">cited from="[2006] FCAFC 61">right to comment upon adverse material from third party</citphrase>
<citphrase id="cp0.6">cited from="[2006] FCAFC 61">whether critical issue obvious to applicant</citphrase>
<citphrase id="cp0.7">cited from="[2006] FCAFC 61">whether issue apparent from nature or terms of statute</citphrase>
<citphrase id="cp0.8">cited from="[2006] FCAFC 61">whether applicant knew regulation 131.214 in issue migration</citphrase>
<citphrase id="cp0.9">cited from="[2006] FCAFC 61">procedural fairness</citphrase>
<citphrase id="cp0.10">cited from="[2006] FCAFC 61">whether common law procedural fairness excluded by s 51a of migration act 1958 (cth)</citphrase>
<citphrase id="cp0.11">cited from="[2006] FCAFC 61">exhaustive statement of natural justice hearing rule</citphrase>
<citphrase id="cp0.12">cited from="[2006] FCAFC 61">proper construction of ss 51a , 357a and 422b  migration</citphrase>
<citphrase id="cp0.13">cited from="[2006] FCAFC 61">finding by delegate that criterion in regulation 131.214 was not satisfied</citphrase>
<citphrase id="cp0.14">cited from="[2006] FCAFC 61">whether evidence required in order to make finding that not satisfied</citphrase>
<citphrase id="cp0.15">cited from="[2006] FCAFC 61">effect of s 65 of migration act 1958 (cth). migration act 1958 (cth)</citphrase>
<citphrase id="cp0.16">cited from="[2006] FCAFC 61">ss 51a , 57 , 65 , 357a , 422b  migration regulations 1994 (cth)</citphrase>
<citphrase id="cp0.17">cited from="[2006] FCAFC 61">reg 131</citphrase>
<citphrase id="cp1.0">cited from="[2006] FCAFC 2">practice and procedure</citphrase>
<citphrase id="cp1.1">cited from="[2006] FCAFC 2">circumstances in which a later full court can depart from an earlier full court decision</citphrase>
<citphrase id="cp1.2">cited from="[2006] FCAFC 2">stare decisis</citphrase>
<citphrase id="cp1.3">cited from="[2006] FCAFC 2">determining ratio decidendi</citphrase>
<citphrase id="cp1.4">cited from="[2006] FCAFC 2">application of minister for immigration and multicultural affairs v al shamry (2001) 110 fcr 27  migration</citphrase>
<citphrase id="cp1.5">cited from="[2006] FCAFC 2">the application of s 424a(1) of the migration act 1958 (cth)</citphrase>
<citphrase id="cp1.6">cited from="[2006] FCAFC 2">meaning of 'application', 'information', and 'reason, or part of the reason' in s 424a</citphrase>
<citphrase id="cp2.0">cited from="[2005] FMCA 1739">migration</citphrase>
<citphrase id="cp2.1">cited from="[2005] FMCA 1739">application to review decision of refugee review tribunal</citphrase>
<citphrase id="cp2.2">cited from="[2005] FMCA 1739">whether tribunal failed to carry out its statutory duty or failed to take account of relevant material</citphrase>
<citphrase id="cp2.3">cited from="[2005] FMCA 1739">whether tribunal decision was irrational and illogical and based on unwarranted assumptions.</citphrase>
<citphrase id="cp3.0">citing from="[2008] FMCA 974">migration</citphrase>
<citphrase id="cp3.1">citing from="[2008] FMCA 974">review of refugee review tribunal decision</citphrase>
<citphrase id="cp3.2">citing from="[2008] FMCA 974">refusal of a protection (class xa) visa</citphrase>
<citphrase id="cp3.3">citing from="[2008] FMCA 974">no reviewable error</citphrase>
<citphrase id="cp3.4">citing from="[2008] FMCA 974">application dismissed.</citphrase>
<citphrase id="cp4.0">citing from="[2008] FCA 319">migration</citphrase>
<citphrase id="cp4.1">citing from="[2008] FCA 319">application of s 424a migration act 1958 (cth)</citphrase>
<citphrase id="cp4.2">citing from="[2008] FCA 319">whether tribunal's reasons should be examined</citphrase>
<citphrase id="cp5.0">citing from="[2008] FMCA 17">migration</citphrase>
<citphrase id="cp5.1">citing from="[2008] FMCA 17">review of refugee review tribunal decision</citphrase>
<citphrase id="cp5.2">citing from="[2008] FMCA 17">refusal of a protection (class xa) visa</citphrase>
<citphrase id="cp5.3">citing from="[2008] FMCA 17">no reviewable error</citphrase>
<citphrase id="cp5.4">citing from="[2008] FMCA 17">application dismissed.</citphrase>
<citphrase id="cp6.0">citing from="[2007] FMCA 1787">migration</citphrase>
<citphrase id="cp6.1">citing from="[2007] FMCA 1787">review of rrt decision</citphrase>
<citphrase id="cp6.2">citing from="[2007] FMCA 1787">allegations of domestic violence</citphrase>
<citphrase id="cp6.3">citing from="[2007] FMCA 1787">where tribunal found persecution was not for a convention reason</citphrase>
<citphrase id="cp6.4">citing from="[2007] FMCA 1787">whether applicant a member of a particular social group</citphrase>
<citphrase id="cp6.5">citing from="[2007] FMCA 1787">whether information relied on by tribunal fell within s.424a(3)(b) migration act 1958</citphrase>
<citphrase id="cp6.6">citing from="[2007] FMCA 1787">whether information was "given" to tribunal.</citphrase>
<citphrase id="cp7.0">citing from="[2007] FMCA 1634">migration</citphrase>
<citphrase id="cp7.1">citing from="[2007] FMCA 1634">review of decision of the refugee review tribunal</citphrase>
<citphrase id="cp7.2">citing from="[2007] FMCA 1634">adverse credibility finding</citphrase>
<citphrase id="cp7.3">citing from="[2007] FMCA 1634">no failure pursuant to s.424a of the act</citphrase>
<citphrase id="cp7.4">citing from="[2007] FMCA 1634">no evidence to support allegation of bias</citphrase>
<citphrase id="cp7.5">citing from="[2007] FMCA 1634">no jurisdictional error arising from tribunal delivering reasons orally</citphrase>
<citphrase id="cp7.6">citing from="[2007] FMCA 1634">subsequent compliance with s.430 of the act</citphrase>
<citphrase id="cp7.7">citing from="[2007] FMCA 1634">no failure to provide the applicant with a meaningful opportunity to be heard</citphrase>
<citphrase id="cp7.8">citing from="[2007] FMCA 1634">no jurisdictional error</citphrase>
<citphrase id="cp7.9">citing from="[2007] FMCA 1634">application dismissed.</citphrase>
<citphrase id="cp8.0">citing from="[2007] FMCA 1591">migration</citphrase>
<citphrase id="cp8.1">citing from="[2007] FMCA 1591">visa</citphrase>
<citphrase id="cp8.2">citing from="[2007] FMCA 1591">protection visa</citphrase>
<citphrase id="cp8.3">citing from="[2007] FMCA 1591">refugee review tribunal</citphrase>
<citphrase id="cp8.4">citing from="[2007] FMCA 1591">application for review of decision of refugee review tribunal affirming decision not to grant protection visa</citphrase>
<citphrase id="cp8.5">citing from="[2007] FMCA 1591">applicants are citizens of china claiming fear of persecution on grounds of political opinion</citphrase>
<citphrase id="cp8.6">citing from="[2007] FMCA 1591">first applicant claimed to have changed political opinion after arriving in australia</citphrase>
<citphrase id="cp8.7">citing from="[2007] FMCA 1591">credibility</citphrase>
<citphrase id="cp8.8">citing from="[2007] FMCA 1591">whether tribunal breached migration act 1958 (cth) s.424a</citphrase>
<citphrase id="cp8.9">citing from="[2007] FMCA 1591">no reviewable error.</citphrase>
<citphrase id="cp9.0">citing from="[2007] FMCA 1204">migration</citphrase>
<citphrase id="cp9.1">citing from="[2007] FMCA 1204">review of a refugee review tribunal decision</citphrase>
<citphrase id="cp9.2">citing from="[2007] FMCA 1204">refusal of a protection (class xa) visa</citphrase>
<citphrase id="cp9.3">citing from="[2007] FMCA 1204">no reviewable error</citphrase>
<citphrase id="cp9.4">citing from="[2007] FMCA 1204">application dismissed.</citphrase>
<citphrase id="cp10.0">citing from="[2007] FCA 826">migration</citphrase>
<citphrase id="cp10.1">citing from="[2007] FCA 826">application for protection visa</citphrase>
<citphrase id="cp10.2">citing from="[2007] FCA 826">appeal from federal magistrate</citphrase>
<citphrase id="cp10.3">citing from="[2007] FCA 826">whether tribunal failed to comply with s 424a</citphrase>
<citphrase id="cp10.4">citing from="[2007] FCA 826">whether tribunal acted unreasonably in failing to make inquiries</citphrase>
<citphrase id="cp12.0">citing from="[2007] FMCA 656">migration</citphrase>
<citphrase id="cp12.1">citing from="[2007] FMCA 656">persecution</citphrase>
<citphrase id="cp12.2">citing from="[2007] FMCA 656">review of refugee review tribunal decision</citphrase>
<citphrase id="cp12.3">citing from="[2007] FMCA 656">visa</citphrase>
<citphrase id="cp12.4">citing from="[2007] FMCA 656">protection visa</citphrase>
<citphrase id="cp12.5">citing from="[2007] FMCA 656">republication of information to the tribunal</citphrase>
<citphrase id="cp12.6">citing from="[2007] FMCA 656">merits review not available.</citphrase>
<citphrase id="cp13.0">citing from="[2007] FCA 472">migration</citphrase>
<citphrase id="cp13.1">citing from="[2007] FCA 472">protection visa</citphrase>
<citphrase id="cp13.2">citing from="[2007] FCA 472">application for leave to appeal</citphrase>
<citphrase id="cp13.3">citing from="[2007] FCA 472">information given in hearing is information given for the purposes of the application</citphrase>
<citphrase id="cp14.0">citing from="[2007] FMCA 496">migration</citphrase>
<citphrase id="cp14.1">citing from="[2007] FMCA 496">rrt decision</citphrase>
<citphrase id="cp14.2">citing from="[2007] FMCA 496">turkish applicant claiming persecution for kurdish and human rights activities</citphrase>
<citphrase id="cp14.3">citing from="[2007] FMCA 496">discredited by tribunal</citphrase>
<citphrase id="cp14.4">citing from="[2007] FMCA 496">partial reliance on travel information given in protection visa application</citphrase>
<citphrase id="cp14.5">citing from="[2007] FMCA 496">information also 'given' to tribunal in responses to questioning at hearing</citphrase>
<citphrase id="cp14.6">citing from="[2007] FMCA 496">no breach of s.424a</citphrase>
<citphrase id="cp14.7">citing from="[2007] FMCA 496">application dismissed.</citphrase>
<citphrase id="cp15.0">citing from="[2007] FMCA 277">migration</citphrase>
<citphrase id="cp15.1">citing from="[2007] FMCA 277">review of refugee review tribunal decision</citphrase>
<citphrase id="cp15.2">citing from="[2007] FMCA 277">refusal of a protection (class xa) visa</citphrase>
<citphrase id="cp15.3">citing from="[2007] FMCA 277">no reviewable error</citphrase>
<citphrase id="cp15.4">citing from="[2007] FMCA 277">application dismissed.</citphrase>
<citphrase id="cp16.0">citing from="[2007] FMCA 199">migration</citphrase>
<citphrase id="cp16.1">citing from="[2007] FMCA 199">review of refugee review tribunal decision</citphrase>
<citphrase id="cp16.2">citing from="[2007] FMCA 199">refusal of protection (class xa) visas</citphrase>
<citphrase id="cp16.3">citing from="[2007] FMCA 199">no reviewable error</citphrase>
<citphrase id="cp16.4">citing from="[2007] FMCA 199">application dismissed.</citphrase>
<citphrase id="cp17.0">citing from="[2007] FMCA 174">migration</citphrase>
<citphrase id="cp17.1">citing from="[2007] FMCA 174">review of refugee review tribunal decision</citphrase>
<citphrase id="cp17.2">citing from="[2007] FMCA 174">refusal of a protection (class xa) visa</citphrase>
<citphrase id="cp17.3">citing from="[2007] FMCA 174">no reviewable error</citphrase>
<citphrase id="cp17.4">citing from="[2007] FMCA 174">application dismissed.</citphrase>
<citphrase id="cp18.0">citing from="[2007] FMCA 115">migration</citphrase>
<citphrase id="cp18.1">citing from="[2007] FMCA 115">application to review decision of migration review tribunal</citphrase>
<citphrase id="cp18.2">citing from="[2007] FMCA 115">whether tribunal failed to comply with s.359a of migration act</citphrase>
<citphrase id="cp18.3">citing from="[2007] FMCA 115">jurisdictional error found</citphrase>
<citphrase id="cp18.4">citing from="[2007] FMCA 115">unexplained delay militates against discretionary relief</citphrase>
<citphrase id="cp18.5">citing from="[2007] FMCA 115">application dismissed.</citphrase>
<citphrase id="cp19.0">citing from="[2006] FCAFC 195">migration</citphrase>
<citphrase id="cp19.1">citing from="[2006] FCAFC 195">appeal from decision of federal magistrate</citphrase>
<citphrase id="cp19.2">citing from="[2006] FCAFC 195">application for protection visa</citphrase>
<citphrase id="cp19.3">citing from="[2006] FCAFC 195">whether refugee review tribunal failed to comply with s 424a of the migration act 1958 (cth) in respect of provision of information to appellant</citphrase>
<citphrase id="cp19.4">citing from="[2006] FCAFC 195">whether tribunal asked wrong question or applied wrong test in considering claim of fear of persecution on religious grounds</citphrase>
<citphrase id="cp19.5">citing from="[2006] FCAFC 195">whether tribunal denied appellant procedural fairness having regard to the manner of examination of independent country information</citphrase>
<citphrase id="cp19.6">citing from="[2006] FCAFC 195">lapse of time between entry into australia and bringing of application for protection visa</citphrase>
<citphrase id="cp19.7">citing from="[2006] FCAFC 195">consideration of s 91r(3)(b)</citphrase>
<citphrase id="cp19.8">citing from="[2006] FCAFC 195">where appellant converted to christianity while in australia practice and procedure</citphrase>
<citphrase id="cp19.9">citing from="[2006] FCAFC 195">leave to amend notice of appeal</citphrase>
<citphrase id="cp19.10">citing from="[2006] FCAFC 195">whether respondents prejudiced by granting of leave</citphrase>
<citphrase id="cp19.11">citing from="[2006] FCAFC 195">whether exceptional circumstances required to be shown by appellant</citphrase>
<citphrase id="cp19.12">citing from="[2006] FCAFC 195">whether allowance to be granted by the court to permit recently published judgments to be understood and applied by legal profession</citphrase>
<citphrase id="cp19.13">citing from="[2006] FCAFC 195">grounds not raised before federal magistrate</citphrase>
<citphrase id="cp20.0">citing from="[2006] FCA 1615">migration</citphrase>
<citphrase id="cp20.1">citing from="[2006] FCA 1615">appeal from federal magistrate's decision to dismiss an application for review of refugee review tribunal decision</citphrase>
<citphrase id="cp20.2">citing from="[2006] FCA 1615">non-attendance at tribunal hearing</citphrase>
<citphrase id="cp20.3">citing from="[2006] FCA 1615">inadequacy of information was reason for tribunal's decision</citphrase>
<citphrase id="cp20.4">citing from="[2006] FCA 1615">no breach of s 424a(1)</citphrase>
<citphrase id="cp20.5">citing from="[2006] FCA 1615">whether additional evidence admissible in judicial review proceedings</citphrase>
<citphrase id="cp21.0">citing from="[2006] FMCA 1458">migration</citphrase>
<citphrase id="cp21.1">citing from="[2006] FMCA 1458">student visa</citphrase>
<citphrase id="cp21.2">citing from="[2006] FMCA 1458">migration review tribunal</citphrase>
<citphrase id="cp21.3">citing from="[2006] FMCA 1458">whether jurisdictional error</citphrase>
<citphrase id="cp21.4">citing from="[2006] FMCA 1458">condition 8202</citphrase>
<citphrase id="cp21.5">citing from="[2006] FMCA 1458">attendance records inadequate</citphrase>
<citphrase id="cp21.6">citing from="[2006] FMCA 1458">whether unreasonable finding</citphrase>
<citphrase id="cp21.7">citing from="[2006] FMCA 1458">whether cancellation of visa mandatory upon breach of condition 8202.</citphrase>
<citphrase id="cp22.0">citing from="[2006] FMCA 1431">migration</citphrase>
<citphrase id="cp22.1">citing from="[2006] FMCA 1431">visa</citphrase>
<citphrase id="cp22.2">citing from="[2006] FMCA 1431">protection visa</citphrase>
<citphrase id="cp22.3">citing from="[2006] FMCA 1431">application for review of rrt decision affirming decision of a delegate of the minister not to grant the applicant a protection visa</citphrase>
<citphrase id="cp22.4">citing from="[2006] FMCA 1431">applicant is a citizen of japan</citphrase>
<citphrase id="cp22.5">citing from="[2006] FMCA 1431">applicant claims fear of persecution for reasons of his race</citphrase>
<citphrase id="cp22.6">citing from="[2006] FMCA 1431">where the applicant failed to attend the refugee review tribunal</citphrase>
<citphrase id="cp22.7">citing from="[2006] FMCA 1431">obligation on tribunal under migration act 1958 (cth) s. 424a(1) to provide applicant with information does not arise at or prior to the time when the tribunal invites the applicant to attend a hearing and give oral evidence under migration act 1958 s.425</citphrase>
<citphrase id="cp22.8">citing from="[2006] FMCA 1431">the test to be applied is whether the information is sufficient to enable the tribunal to make a decision in the applicant's favour</citphrase>
<citphrase id="cp22.9">citing from="[2006] FMCA 1431">if the tribunal is not satisfied that the information is sufficient then the tribunal is obliged to invite the applicant to attend a hearing</citphrase>
<citphrase id="cp22.10">citing from="[2006] FMCA 1431">where applicant claimed that the tribunal failed to exercise its discretion under migration act 1958 (cth) s.426a(2)</citphrase>
<citphrase id="cp22.11">citing from="[2006] FMCA 1431">held that tribunal did not misunderstand its discretion</citphrase>
<citphrase id="cp22.12">citing from="[2006] FMCA 1431">no jurisdictional error.</citphrase>
<citphrase id="cp23.0">citing from="[2006] FMCA 1281">migration</citphrase>
<citphrase id="cp23.1">citing from="[2006] FMCA 1281">protection visa</citphrase>
<citphrase id="cp23.2">citing from="[2006] FMCA 1281">refugee review tribunal</citphrase>
<citphrase id="cp23.3">citing from="[2006] FMCA 1281">whether jurisdictional error.</citphrase>
<citphrase id="cp24.0">citing from="[2006] FMCA 1288">migration</citphrase>
<citphrase id="cp24.1">citing from="[2006] FMCA 1288">visa</citphrase>
<citphrase id="cp24.2">citing from="[2006] FMCA 1288">protection visa</citphrase>
<citphrase id="cp24.3">citing from="[2006] FMCA 1288">refugee review tribunal</citphrase>
<citphrase id="cp24.4">citing from="[2006] FMCA 1288">application for review of rrt decision affirming decision of a delegate of the minister not to grant a protection visa</citphrase>
<citphrase id="cp24.5">citing from="[2006] FMCA 1288">applicant is a citizen of the people's republic of china claiming a fear of persecution as a falun gong practitioner</citphrase>
<citphrase id="cp24.6">citing from="[2006] FMCA 1288">privative clause decision</citphrase>
<citphrase id="cp24.7">citing from="[2006] FMCA 1288">no reviewable error.</citphrase>
<citphrase id="cp25.0">citing from="[2006] FMCA 1142">migration</citphrase>
<citphrase id="cp25.1">citing from="[2006] FMCA 1142">rrt decision</citphrase>
<citphrase id="cp25.2">citing from="[2006] FMCA 1142">nepali student feared return</citphrase>
<citphrase id="cp25.3">citing from="[2006] FMCA 1142">claim that family extorted by maoists and persecuted by government</citphrase>
<citphrase id="cp25.4">citing from="[2006] FMCA 1142">disbelieved by tribunal</citphrase>
<citphrase id="cp25.5">citing from="[2006] FMCA 1142">no jurisdictional error found.</citphrase>
<citphrase id="cp26.0">citing from="[2006] FMCA 1180">migration</citphrase>
<citphrase id="cp26.1">citing from="[2006] FMCA 1180">visa</citphrase>
<citphrase id="cp26.2">citing from="[2006] FMCA 1180">protection visa</citphrase>
<citphrase id="cp26.3">citing from="[2006] FMCA 1180">refugee review tribunal</citphrase>
<citphrase id="cp26.4">citing from="[2006] FMCA 1180">application for review of decision of the refugee review tribunal affirming a decision of a delegate of the minister not to grant a protection visa to the applicant</citphrase>
<citphrase id="cp26.5">citing from="[2006] FMCA 1180">where applicant did not attend tribunal hearing</citphrase>
<citphrase id="cp26.6">citing from="[2006] FMCA 1180">applicant a citizen of china claiming fear of persecution by reason of religion</citphrase>
<citphrase id="cp26.7">citing from="[2006] FMCA 1180">obligation on tribunal under migration act 1958 (cth) s.424a(1) to provide applicant with information does not arise at or prior to the time when the tribunal invites the applicant to attend a hearing and give oral evidence pursuant to migration act 1958 s.425</citphrase>
<citphrase id="cp26.8">citing from="[2006] FMCA 1180">the test to be applied under s.425 is whether the information is sufficient to enable the tribunal to make a decision in the applicant's favour</citphrase>
<citphrase id="cp26.9">citing from="[2006] FMCA 1180">if the tribunal is not satisfied that the information is sufficient then the tribunal is obliged to invite the applicant to attend a hearing</citphrase>
<citphrase id="cp26.10">citing from="[2006] FMCA 1180">where applicant claimed that the tribunal failed to exercise its discretion under migration act 1958 (cth) s.426a(2)</citphrase>
<citphrase id="cp26.11">citing from="[2006] FMCA 1180">held that tribunal did not misunderstand its discretion but in fact exercised the discretion</citphrase>
<citphrase id="cp26.12">citing from="[2006] FMCA 1180">no reviewable error.</citphrase>
<citphrase id="cp27.0">citing from="[2006] FCA 851">migration</citphrase>
<citphrase id="cp27.1">citing from="[2006] FCA 851">appeal from federal magistrates court</citphrase>
<citphrase id="cp27.2">citing from="[2006] FCA 851">rejection of application for review of refugee review tribunal decision</citphrase>
<citphrase id="cp27.3">citing from="[2006] FCA 851">indian christian evangelist</citphrase>
<citphrase id="cp27.4">citing from="[2006] FCA 851">claim for refugee status based on fear of lack of effective protection against hindu extremists</citphrase>
<citphrase id="cp27.5">citing from="[2006] FCA 851">argued before fmc (i) no evidence to support finding of fact as to action by indian police in response to attacks against members of religious minorities (ii) tribunal did not ask "what if i am wrong?"</citphrase>
<citphrase id="cp27.6">citing from="[2006] FCA 851">leave sought to raise further arguments (iii) failure to comply with s 424a migration act 1958 (cth) in respect of information concerning appellant's failings to return to site of home allegedly burned down by extremists and (iv) failure to deal with essential integers of appellant's claim held</citphrase>
<citphrase id="cp28.0">citing from="[2006] FMCA 1221">migration</citphrase>
<citphrase id="cp28.1">citing from="[2006] FMCA 1221">visa</citphrase>
<citphrase id="cp28.2">citing from="[2006] FMCA 1221">protection visa</citphrase>
<citphrase id="cp28.3">citing from="[2006] FMCA 1221">refugee review tribunal</citphrase>
<citphrase id="cp28.4">citing from="[2006] FMCA 1221">application for review of decision of the refugee review tribunal affirming a decision of a delegate of the minister not to grant a protection visa to the applicant</citphrase>
<citphrase id="cp28.5">citing from="[2006] FMCA 1221">where applicant did not attend tribunal hearing</citphrase>
<citphrase id="cp28.6">citing from="[2006] FMCA 1221">obligation on tribunal under migration act 1958 (cth) s.424a(1) to provide applicant with information does not arise at or prior to the time when the tribunal invites the applicant to attend a hearing and give oral evidence pursuant to migration act 1958 s.425</citphrase>
<citphrase id="cp28.7">citing from="[2006] FMCA 1221">the test to be applied is whether the information is sufficient to enable the tribunal to make a decision in the applicant's favour</citphrase>
<citphrase id="cp28.8">citing from="[2006] FMCA 1221">if the tribunal is not satisfied that the information is sufficient then the tribunal is obliged to invite the applicant to attend a hearing</citphrase>
<citphrase id="cp28.9">citing from="[2006] FMCA 1221">where applicant claimed that the tribunal failed to exercise its discretion under migration act 1958 (cth) s.426a(2)</citphrase>
<citphrase id="cp28.10">citing from="[2006] FMCA 1221">held that the tribunal did not misunderstand its discretion</citphrase>
<citphrase id="cp28.11">citing from="[2006] FMCA 1221">no jurisdictional error.</citphrase>
</citphrases>
<citances>
<sentence from="[2008] FMCA 974" id="cs0">Where the applicant's oral evidence contains the same information as was in his protection visa application, and to the extent that he gave the Tribunal "raw information", s.424A(3)(b) applies to this information and there is no breach of s.424A(1) in respect of it. Justice Heerey in SZCJD v Minister for Immigration [2006] FCA 609 discussed s.424A(3)(b) applying to exclude the operation of s.424A(1) because details of the visa application in that case were discussed with the applicant at that Tribunal hearing. His Honour stated at [40]-[43]: [40] In any case, I do not accept the appellant's argument that the Tribunal contravened s 424A(1) at the time it sent the 23 September letter. The Tribunal had not then reached a stage where it considered that the information in the protection visa application, or indeed any other information, would be a reason for affirming the refusal of the visa.</sentence>
<sentence from="[2008] FCA 319" id="cs1">32 Turning to the Minister's alternative argument based on s 424A(3)(b) , I agree that the appellant "gave" the relevant information because he confirmed at the hearing that the bond was provided by his friends. It is not to the point that the Tribunal may have already been in possession of the information or that it was provided by the appellant in answer to the Tribunal's questioning: SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [42] - [43], see also SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] , NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [61] .</sentence>
<sentence from="[2008] FMCA 17" id="cs2">In support of this submission, Mr Johnson relies upon the decision SZCJD v Minister for Immigration  Multicultural  Indigenous Affairs [2006] FCA 609. In that case, the Tribunal described the applicant's claims (from his original visa application) of association with the Awami League as vague and lacking in details. It then questioned the applicant about his involvement with that organisation. Justice Heerey at [42] concluded, consistent with SZEEU v Minister for Immigration  Multicultural  Indigenous Affairs [2006] FCAFC 2 , that this was information given at the Tribunal hearing for the purposes of that application. </sentence>
<sentence from="[2007] FMCA 1787" id="cs3">"

In SZCJD v Minister for Immigration [2006] FCA 609 Heerey J stated at [43]:

 "To conclude that an applicant "gave" information for the purpose of the Tribunal application it is not necessary that the information was initially volunteered by the applicant.</sentence>
<sentence from="[2007] FMCA 1634" id="cs4">13. Further, I note submissions by Mr Johnson today and agree with him that to the extent that it could be said that the Tribunal relied on information arising by way of "cross-examination" of the applicant at the hearing before the Tribunal, then this is information falling within that exception from the obligation pursuant to s.424A(1) of the Act ( SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 , SZJCD v Minister for Immigration and Multicultural Affairs [2006] FCA 609). </sentence>
<sentence from="[2007] FMCA 1591" id="cs5">32. Whilst the Tribunal did, in its findings and reasons, at page 75 of the Court Book, refer to a statement in the Applicant's Protection visa application, this information was canvassed at the hearing with the Applicant and the Applicant expanded on it. Accordingly, that information falls within the exception contained in sub-section 424A(3)(b). This information is information given at the hearing for the purpose of the application and I am referred to the decision in SZCJD v Minister for Immigration  Multicultural  Indigenous Affairs [2006] FCA 609 at [42] . There is no breach of s.424 of the Migration Act .</sentence>
<sentence from="[2007] FMCA 1204" id="cs6">She submits that the Tribunal's findings are analogous to the findings in SZCJD v Minister for Immigration and Multicultural Affairs [2006] FCA 609 and SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 , in that the information was given in response to questions of the Tribunal. Ms Sirtes referred the Court to NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [57] - [61] per Gyles, Stone and Young JJ:

 57 In SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 ('SZCJD'), Heerey J said at [42] that the exception in s.424(3)(b) would apply to information which is affirmed by an applicant for the purposes of the review, even if the information might also have been obtained by the Tribunal from another source.</sentence>
<sentence from="[2007] FCA 826" id="cs7">45 As Young J noted in NBKT at [55], the Full Court's approach in SZEEU to issues of this kind must also take into account its treatment of a similar question in the appeal in SZDXA , also reported with SZEEU . The relevant information in SZDXA was the fact that the appellant had a temporary business visa to Australia. Moore J concluded that, although the Tribunal had acquired this information from sources other than the appellant, the Tribunal had discussed the fact with the appellant at the hearing and the appellant had affirmed that he had entered Australia on a business visa. In this circumstance, Moore J concluded, at 242, that the information fell within 424A(3)(b) and Weinberg J agreed, at 254, observing, at 255, that the adoption of an earlier statement at the hearing can bring that statement within the exception. Allsop J agreed, at 268, with Moore J in relation to SZDXA . The Full Court in NBKT reached a similar conclusion in relation to the information in question in that case: see NBKT at [60]-[63] per Young J. See also SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [43] per Heerey J; and SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] per Kenny J.</sentence>
<sentence from="[2007] FCA 792" id="cs8">11 Third alleged breach: The contradiction between the protection visa application and oral evidence about the circumstances surrounding the giving of a public address by 'C. '

 His Honour determined in relation to the second and third potential breaches that the information did not form part of the reasons for affirming the decision of the delegate and that, therefore, it was not comprehended by s 424A(1) of the Act . It was the answers provided by the appellant to questions about being general secretary of the Chatra League and the speech which led the Tribunal to reject his claims in this regard. The Federal Magistrate referred to the decision of Heerey J in SZCJD v Minister for Immigration [2006] FCA 609 at [40] --- [43] explaining that s. 424A(3)(b) applied to exclude the operation of s 424A(1) because details of the visa application were discussed with the applicant at the Tribunal hearing. His Honour determined that the various inconsistencies and implausibilities emerged from the questioning of the appellant during the hearing. No jurisdictional error was made.</sentence>
<sentence from="[2007] FMCA 656" id="cs9">In the event that there had been some prior provision of this information to the department, authorities such as Goo v Minister for Immigration  Citizenship [2007] FCA 391 , SZCJD v Minister for Immigration  Multicultural  Indigenous Affairs [2006] FCA 609 , SZESF v Minister for Immigration  Multicultural Affairs [2007] FCA 6 indicate that the repetition of such information at the Tribunal hearing brings it within the reach of s.424A(3)(b).</sentence>
<sentence from="[2007] FCA 472" id="cs10">It is now settled in this Court that information which is given orally in a hearing before the RRT, whether volunteered or in answer to a request for confirmation of material before the RRT in some other form (e.g. an original application for the visa in question) is to be regarded as 'information ... that the applicant gave for the purpose of the application' (i.e. the application for review) and hence within the exception in s 424A(3)(b) to the requirement in s 424A(1) and (2) that it be given to an applicant in writing and his comments invited (see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs ) [2006] FCAFC 2 ; (2006) 150 FCR 214 at 242 [91] , 254 [173] and 268 [264], SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [42] - [43], SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] and NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [59] - [60], SZHFC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1359 [24]. 11 In the present case, confirmation at the outset that the matters advanced in the visa application and the accompanying statement were true and correct and still relied upon was a basic starting point for the discussion which followed. The allegation of a breach of s 424A of the Act therefore cannot be made out.</sentence>
<sentence from="[2007] FMCA 496" id="cs11">
 57 In SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 ( 'SZCJD' ), Heerey J said at [42] that the exception in s 424A(3)(b) would apply to information which is affirmed by an applicant for the purposes of the review, even if the information might also have been obtained by the Tribunal from another source.</sentence>
<sentence from="[2007] FMCA 277" id="cs12">Justice Heerey in SZCJD v Minister for Immigration [2006] FCA 609 discussed the principle in which s.424A(3)(b) applied to exclude the operation of s.424A(1) because details of the visa application in that case were discussed with the applicant at the Tribunal hearing.</sentence>
<sentence from="[2007] FMCA 199" id="cs13">When properly analysed, the inconsistencies did not themselves form the reason or part of the reason that the delegate's decision was affirmed: VWBF v Minister for Immigration [2006] FCA 851 at [45] ; VWFP  Anor v Minister for Immigration [2006] FCA 231 at [62] to [63] and [70]; WAGP v Minister for Immigration [2006] FCAFC 103 at [41] to [44]; SZCJD v Minister for Immigration [2006] FCA 609 at [39] to [43].</sentence>
<sentence from="[2007] FMCA 174" id="cs14">Ms Pepper referred to Mr Nair's reliance on SZEEU . She submits that due to the large number of decisions referring to Allsop J's comments in SZEEU, one has to analyse carefully what the reasons were of the Tribunal affirming the decision in determining whether or not there has been a breach of s.424A. Merely describing what took place during the Tribunal hearing does not breach s.424A: SZCJD v Minister for Immigration [2006] FCA 609 ; WAGP v Minister for Immigration [2006] FCAFC 103. </sentence>
<sentence from="[2007] FMCA 115" id="cs15">The fact that this information was provided in response to questioning does not prevent it from falling into the exception in s.359A (4)(b) of the Act SZCJD v MIMIA [2006] FCA 609 per Heerey J at [41] --- [43] and SZDPY v MIMIA [2006] FCA 627 per Kenny J at [35] --- [36].</sentence>
<sentence from="[2006] FCAFC 195" id="cs16">57 In SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 (' SZCJD' ), Heerey J said at [42] that the exception in s 424A(3)(b) would apply to information which is affirmed by an applicant for the purposes of the review, even if the information might also have been obtained by the Tribunal from another source. His Honour referred to Moore J's reasons in SZEEU at 242 [91], with whom Weinberg J at 254 [173] and Allsop J at 268 [264] agreed. In circumstances where the information is necessarily within the knowledge of the applicant himself, his Honour held at [43] that:

 'To conclude that an applicant "gave" information for the purpose of the Tribunal application it is not necessary that the information was initially volunteered by the applicant. Information is equally given if it comes in response to questioning by the Tribunal. '

There is no inconsistency between this approach and SZEEU : see also SZHFC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1359 at [24] - [25]. 21 The appellant submitted that this Court should adopt Heerey J's approach to the grant of leave to raise a s 424A claim in VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 ( 'VWBF' ) at [23]:

 '[T]here is [a] question whether leave should be granted to raise this point, which was not argued before the Magistrate. For the reasons given in SZCJD [2006] FCA 609 at [19] , I think the appellant should have leave. The operation of s 424A has been the subject of a recent Full Court decision handed down on 24 February 2006, SZEEU [2006] FCAFC 2. In that case there crystallised for the first time at Full Court level what Weinberg J at [121] described as the "unanticipated but potent combination" of the Full Court's decision in Al Shamry (2001) 110 FCR 27 and the High Court's decision in SAAP (2005) 215 ALR 162. It may be true, as counsel for the Minister in the present case pointed out, that there were single judge decisions in June and July 2005 which considered this point, and the hearing before the Magistrate took place on 7 September 2005. Nevertheless some reasonable allowance should be made for the blizzard of cases concerning the Act that descend upon the profession and some time allowed before they can be taken as absorbed into the general understanding, even of those specialising in this area. ' </sentence>
<sentence from="[2006] FCA 1615" id="cs17">14 His Honour dismissed that claim and stated at [22]-[23] that he considered that no obligation arose under that section given that at the time that the Tribunal notified the appellant that it was unable to determine the review in his favour on the material before it, the Tribunal had not reached any view on whether the adequacy of the material submitted to the delegate would be part of the reason for its decision. In support of his reasoning, his Honour indicated that he was bound to follow the decision of Heerey J in SZCJD v Minister for Immigration  Multicultural  Indigenous Affairs [2006] FCA 609 at [38] - [43].</sentence>
<sentence from="[2006] FMCA 1458" id="cs18">Reliance was placed upon the decision of Heerey J in SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [42] and [43] where the court states:

 "42 Even if the "information" here were caught by s 424A(1) , the exception in s 424A(3)(b) would apply.</sentence>
<sentence from="[2006] FMCA 1431" id="cs19">In SZCJD v Minister for Immigration  Multicultural  Indigenous Affairs [2006] FCA 609 Heerey J held that:

 The Tribunal had not then reached the stage where it considered that the information in the protection visa application, or indeed any other information, would be a reason for affirming the refusal of the visa.</sentence>
<sentence from="[2006] FMCA 1281" id="cs20">This was the case, it was argued, even if the information could have been derived from another source, such as the protection visa application (see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCAFC 2 ; SZDPY v Minister for Immigration and Multicultural Affairs (2006) FCA 627 ; and SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 609).</sentence>
<sentence from="[2006] FMCA 1288" id="cs21">It also goes without saying that information given by an applicant in response to questioning by the Tribunal is not information to which s.414A applies even though the information might also have been provided to the Tribunal from another source, and I refer to SZCJD v Minister for Immigration  Multicultural  Indigenous Affairs [2006] FCA 609 at [42] and [43].</sentence>
<sentence from="[2006] FMCA 1142" id="cs22">SZCJD v Minister for Immigration  Multicultural  Indigenous Affairs [2006] FCA 609 at [39] ).</sentence>
<sentence from="[2006] FMCA 1180" id="cs23">In respect of the two grounds raised by the Applicant in the Amended Application, the First Respondent relies on the decision of Heerey J in SZCJD v Minister for Immigration  Multicultural  Indigenous Affairs [2006] FCA 609 rejecting the proposition that an obligation under s.424A of the Migration Act arises at the time when the Tribunal under s.425 notifies the Applicant that it had considered the material before it but was unable to make a decision in his favour and invited the Applicant to attend the hearing. Judiciary Act 1903 (Cth), s.39B
 Migration Act 1958 (Cth), ss.424A , 425 , 426A , 474

 SZCJD v Minister for Immigration  Multicultural  Indigenous Affairs [2006] FCA 609 followed
 WACO v Minister for Immigration  Multicultural  Indigenous Affairs [2003] FCAFC 171
 SZBCS v Minister for Immigration  Multicultural  Indigenous Affairs [2005] FCA 1457 followed. In SZCJD v Minister for Immigration  Multicultural  Indigenous Affairs [2006] FCA 609 , Heerey J considered that very submission at paragraphs 38 through to 43.</sentence>
<sentence from="[2006] FCA 851" id="cs24">23 First there is question whether leave should be granted to raise this point, which was not argued before the Magistrate. For the reasons given in SZCJD [2006] FCA 609 at [19] , I think the appellant should have leave. The operation of s 424A has been the subject of a recent Full Court decision handed down on 24 February 2006, SZEEU [2006] FCAFC 2. In that case there crystallised for the first time at Full Court level what Weinberg J at [121] described as the "unanticipated but potent combination" of the Full Court's decision in Al Shamry (2001) 110 FCR 27 and the High Court's decision in SAAP (2005) 215 ALR 162. It may be true, as counsel for the Minister in the present case pointed out, that there were single judge decisions in June and July 2005 which considered this point, and the hearing before the Magistrate took place on 7 September 2005. Nevertheless some reasonable allowance should be made for the blizzard of cases concerning the Act that descend upon the profession and some time allowed before they can be taken as absorbed into the general understanding, even of those specialising in this area.  45 In SZCJD [2006] FCA 609 I rejected a s 424A argument primarily because the protection visa application and its characterisation as vague and general were not the Tribunal's reason or part of its reason for its decision. I held (at [42]) that in any event s 424A(3)(b) applied as the applicant had given the information in the course of answering the question put by the Tribunal. </sentence>
<sentence from="[2006] FMCA 1221" id="cs25">In SZCJD v Minister for Immigration  Multicultural  Indigenous Affairs [2006] FCA 609 , Heerey J held at [40]:

 The Tribunal had not then reached the stage where it considered that the information in the protection visa application, or indeed any other information, would be a reason for affirming the refusal of the visa.</sentence>
</citances>
<legistitles>
<title id="l0">MIGRATION ACT 1958 </title>
<title id="l1">MIGRATION ACT 1958 - SECT 424A Information and invitation given in writing by Tribunal</title>
<title id="l2">MIGRATION ACT 1958 - SECT 425 Tribunal must invite applicant to appear</title>
<title id="l3">FEDERAL COURT RULES 1979 </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2006] FCA 1825">incorporated associations</citphrase>
<citphrase id="cp0.1">cited from="[2006] FCA 1825">respondent to proceedings</citphrase>
<citphrase id="cp0.2">cited from="[2006] FCA 1825">membership uncertain</citphrase>
<citphrase id="cp0.3">cited from="[2006] FCA 1825">validity of appointment of board members questioned</citphrase>
<citphrase id="cp0.4">cited from="[2006] FCA 1825">intractable conflict of interest in board members</citphrase>
<citphrase id="cp0.5">cited from="[2006] FCA 1825">charitable objects</citphrase>
<citphrase id="cp0.6">cited from="[2006] FCA 1825">assets only applicable for relevant charitable objects</citphrase>
<citphrase id="cp0.7">cited from="[2006] FCA 1825">power of court to make interlocutory appointment of receiver</citphrase>
<citphrase id="cp0.8">cited from="[2006] FCA 1825">receiver to conduct litigation or resolve it</citphrase>
<citphrase id="cp0.9">cited from="[2006] FCA 1825">whether power should be exercised</citphrase>
<citphrase id="cp0.10">cited from="[2006] FCA 1825">receiver appointed</citphrase>
<citphrase id="cp1.0">cited from="[2006] FCA 1340">practice and procedure</citphrase>
<citphrase id="cp1.1">cited from="[2006] FCA 1340">contempt</citphrase>
<citphrase id="cp1.2">cited from="[2006] FCA 1340">enforcement of an order to pay a fine</citphrase>
<citphrase id="cp1.3">cited from="[2006] FCA 1340">interpretation of full court order</citphrase>
<citphrase id="cp1.4">cited from="[2006] FCA 1340">whether application for contempt to be heard before a single judge or full court</citphrase>
<citphrase id="cp1.5">cited from="[2006] FCA 1340">whether full court order enforceable in victoria</citphrase>
<citphrase id="cp1.6">cited from="[2006] FCA 1340">effect of impecunious respondent</citphrase>
<citphrase id="cp1.7">cited from="[2006] FCA 1340">whether capacity to pay order is a relevant consideration</citphrase>
<citphrase id="cp1.8">cited from="[2006] FCA 1340">evidentiary burden on respondent to reveal financial situation</citphrase>
<citphrase id="cp2.0">cited from="[2006] FCA 336">courts</citphrase>
<citphrase id="cp2.1">cited from="[2006] FCA 336">practice and procedure</citphrase>
<citphrase id="cp2.2">cited from="[2006] FCA 336">application to vary interlocutory orders</citphrase>
<citphrase id="cp2.3">cited from="[2006] FCA 336">application to strike out application and statement of claim</citphrase>
<citphrase id="cp4.0">cited from="[2002] NSWSC 741">corporations</citphrase>
<citphrase id="cp4.1">cited from="[2002] NSWSC 741">injunctions</citphrase>
<citphrase id="cp4.2">cited from="[2002] NSWSC 741">interim injunctions</citphrase>
<citphrase id="cp4.3">cited from="[2002] NSWSC 741">application by asic under s.1324(4) corporations act for interim injunctions</citphrase>
<citphrase id="cp4.4">cited from="[2002] NSWSC 741">principles applicable</citphrase>
<citphrase id="cp4.5">cited from="[2002] NSWSC 741">whether court has regard only to whether serious question to be tried and where balance of convenience lies</citphrase>
<citphrase id="cp4.6">cited from="[2002] NSWSC 741">inconsistency in authorities</citphrase>
<citphrase id="cp4.7">cited from="[2002] NSWSC 741">asic v sweeney [2001] nswsc 114 , asic v parkes [2001] nswsc 377 ; (2001) 38 acsr 355 , asic v pegasus leveraged options group pty ltd (2002) 41 acsr 561 followed</citphrase>
<citphrase id="cp4.8">cited from="[2002] NSWSC 741">asic v cooke (1996) 22 acsr 580 , liquorland (aust) pty ltd v anghie [2001] vsc 362 , westgold resources nl v precious metals australia ltd [2002] wasc 85 ; (2002) 41 acsr 672 not followed.acts cited: australian securities and investments commission act (2001) (cth)</citphrase>
<citphrase id="cp4.9">cited from="[2002] NSWSC 741">s.1(2), s.33companies act (1981) (cth)</citphrase>
<citphrase id="cp4.10">cited from="[2002] NSWSC 741">s.574(5), (6)companies (acquisition of shares) (queensland) code</citphrase>
<citphrase id="cp4.11">cited from="[2002] NSWSC 741">s.45(1), s.49(2a), (2b) corporations act, 2001 (cth)</citphrase>
<citphrase id="cp4.12">cited from="[2002] NSWSC 741">s.911a , s. 1324 (1), (3), (4), (6), (7), (8)</citphrase>
<citphrase id="cp5.0">cited from="[2000] NSWSC 694">corporations</citphrase>
<citphrase id="cp5.1">cited from="[2000] NSWSC 694">statutory power to appoint receiver under corporations law</citphrase>
<citphrase id="cp5.2">cited from="[2000] NSWSC 694">justification where mareva orders are in place</citphrase>
<citphrase id="cp5.3">cited from="[2000] NSWSC 694">relationship between receiver's and asic's powers</citphrase>
<citphrase id="cp5.4">cited from="[2000] NSWSC 694">practical considerations</citphrase>
<citphrase id="cp6.0">cited from="[1994] HCA 10">constitutional law (cth)</citphrase>
<citphrase id="cp6.1">cited from="[1994] HCA 10">powers of commonwealth parliament</citphrase>
<citphrase id="cp6.2">cited from="[1994] HCA 10">fisheries -acquisition on just terms</citphrase>
<citphrase id="cp6.3">cited from="[1994] HCA 10">offence to use unlicensed boat within designated waters</citphrase>
<citphrase id="cp6.4">cited from="[1994] HCA 10">statute authorizing order for forfeiture of boat upon conviction</citphrase>
<citphrase id="cp6.5">cited from="[1994] HCA 10">owner without knowledge of offence -whether law with respect to fisheries</citphrase>
<citphrase id="cp6.6">cited from="[1994] HCA 10">whether acquisition of property otherwise than on just terms</citphrase>
<citphrase id="cp6.7">cited from="[1994] HCA 10">the constitution (63 and 64 vict. c. 12), s. 51(x) , (xxx)</citphrase>
<citphrase id="cp6.8">cited from="[1994] HCA 10">fisheries management act 1991 (cth), ss. 100 , 106 (1)(a).</citphrase>
<citphrase id="cp7.0">cited from="[1984] FCA 363">trade practices</citphrase>
<citphrase id="cp7.1">cited from="[1984] FCA 363">resale price maintenance</citphrase>
<citphrase id="cp7.2">cited from="[1984] FCA 363">sale of petroleum by respondent to dealer</citphrase>
<citphrase id="cp7.3">cited from="[1984] FCA 363">penalty</citphrase>
<citphrase id="cp7.4">cited from="[1984] FCA 363">relevant matters</citphrase>
<citphrase id="cp7.5">cited from="[1984] FCA 363">two contraventions of act</citphrase>
<citphrase id="cp7.6">cited from="[1984] FCA 363">same officer of company involved</citphrase>
<citphrase id="cp7.7">cited from="[1984] FCA 363">both contraventions in relation to one dealer</citphrase>
<citphrase id="cp7.8">cited from="[1984] FCA 363">whether injunction appropriate</citphrase>
<citphrase id="cp7.9">cited from="[1984] FCA 363">additional penalty  trade practices act 1974 ss. 76 , 77 , 80  trade practices</citphrase>
<citphrase id="cp7.10">cited from="[1984] FCA 363">resale price maintenance</citphrase>
<citphrase id="cp7.11">cited from="[1984] FCA 363">penalty</citphrase>
<citphrase id="cp7.12">cited from="[1984] FCA 363">whether injunction should go</citphrase>
<citphrase id="cp7.13">cited from="[1984] FCA 363">trade practices act 1974 (cth), ss 76 , 77 , 80 . observations concerning matters relevant to the quantum of a penalty for engaging in resale price maintenance and concerning whether an injunction should go and the terms of any such injunction.</citphrase>
<citphrase id="cp8.0">cited from="[1982] HCA 76">constitutional law (cth)</citphrase>
<citphrase id="cp8.1">cited from="[1982] HCA 76">powers of commonwealth parliament</citphrase>
<citphrase id="cp8.2">cited from="[1982] HCA 76">trade and commerce with other countries and among the states</citphrase>
<citphrase id="cp8.3">cited from="[1982] HCA 76">prohibited imports</citphrase>
<citphrase id="cp8.4">cited from="[1982] HCA 76">pecuniary penalty for dealing in prescribed narcotics</citphrase>
<citphrase id="cp8.5">cited from="[1982] HCA 76">court directed to assess benefits derived by dealing and fix penalty equal to amount of benefits</citphrase>
<citphrase id="cp8.6">cited from="[1982] HCA 76">whether judicial function</citphrase>
<citphrase id="cp8.7">cited from="[1982] HCA 76">pecuniary penalty unlimited</citphrase>
<citphrase id="cp8.8">cited from="[1982] HCA 76">whether acquisition of property on other than just terms</citphrase>
<citphrase id="cp8.9">cited from="[1982] HCA 76">the constitution (63  64 vict. c. 12), ss. 51(i) , (xxxi)</citphrase>
<citphrase id="cp8.10">cited from="[1982] HCA 76">customs act 1901 (cth), ss. 243b , 243c ; 243e .</citphrase>
<citphrase id="cp9.0">cited from="[1981] FCA 54">trade practices</citphrase>
<citphrase id="cp9.1">cited from="[1981] FCA 54">misleading or deceptive conduct</citphrase>
<citphrase id="cp9.2">cited from="[1981] FCA 54">appeal against grant of injunction. constitutional law</citphrase>
<citphrase id="cp9.3">cited from="[1981] FCA 54">whether s.80 of the trade practices act 1974 exceeds the legislative power of the commonwealth.  the constitution (62 and 63 victoria c.12) s.51 (xx)  trade practices act 1974 (cth.) s.52 , s. 80 .  trade practices</citphrase>
<citphrase id="cp9.4">cited from="[1981] FCA 54">persons "aiding, abetting, counselling or procuring" contravention by corporation</citphrase>
<citphrase id="cp9.5">cited from="[1981] FCA 54">corporation not party to proceedings</citphrase>
<citphrase id="cp9.6">cited from="[1981] FCA 54">misleading or deceptive conduct</citphrase>
<citphrase id="cp9.7">cited from="[1981] FCA 54">whether evidence of persons actually being misled or deceived can be taken into consideration.  constitutional law</citphrase>
<citphrase id="cp9.8">cited from="[1981] FCA 54">corporations power</citphrase>
<citphrase id="cp9.9">cited from="[1981] FCA 54">validity of provision enabling court to enjoin conduct aiding and abetting contravention</citphrase>
<citphrase id="cp9.10">cited from="[1981] FCA 54">trade practices act 1974 (cth), ss. 52 , 80 , 83</citphrase>
<citphrase id="cp9.11">cited from="[1981] FCA 54">the constitution (63  64 vict. c. 12), s. 51 (xx). the appellant was the managing director of, and a shareholder in, a company engaged in selling land. the appellant had been restrained by order of the trial judge pursuant to s. 80 of the trade practices act from, inter alia: (1) aiding, abetting, counselling or procuring; and (2) inducing or attempting to induce the company to engage, in trade or commerce, in the conduct of advertising, representing, offering for sale or selling interests in land in a manner that was misleading or deceptive in contravention of s. 52 of the trade practices act 1974 . at the time the orders were made against the appellant, the company was in liquidation and was not a party to the proceedings.  on appeal,  held: per franki and northrop jj.</citphrase>
<citphrase id="cp9.12">cited from="[1981] FCA 54">(1) since the head of power to legislate with respect to corporations clearly supports the provisions of s. 52 of the act, the legislature can, under s. 80 , prohibit a natural person from aiding, abetting, counselling or procuring a contravention of those provisions even in cases where s. 52 did not apply to the natural person.  r. v. judges of the australian industrial court; ex parte c.l.m. holdings pty. ltd. [1977] hca 6 ; (1977), 136 clr 235 ; r. v. goldie; ex parte picklum [1937] hca 65 ; (1937), 59 clr 254 , referred to.  (2) the trial judge was not in error in taking into consideration evidence of the state of minds of witnesses as to whether they were misled or deceived as evidence of actual deception is always relevant and can be taken into account in determining whether conduct is misleading or deceptive.  per keely j.</citphrase>
<citphrase id="cp9.13">cited from="[1981] FCA 54">(3) the grant of the injunction under s. 80 is conditional upon an actual or prospective breach of s. 52 of the trade practices act or counselling such a breach, and is within the legislative power of the commonwealth.</citphrase>
<citphrase id="cp10.0">cited from="[1980] FCA 12">trade practices</citphrase>
<citphrase id="cp10.1">cited from="[1980] FCA 12">consumer protection</citphrase>
<citphrase id="cp10.2">cited from="[1980] FCA 12">application for injunction</citphrase>
<citphrase id="cp10.3">cited from="[1980] FCA 12">misleading and deceptive conduct in relation to sale of land.  constitutional law</citphrase>
<citphrase id="cp10.4">cited from="[1980] FCA 12">corporation's power</citphrase>
<citphrase id="cp10.5">cited from="[1980] FCA 12">injunction against natural person</citphrase>
<citphrase id="cp10.6">cited from="[1980] FCA 12">whether s. 80 of trade practices act 1974 exceeds the legislative power of the commonwealth</citphrase>
<citphrase id="cp10.7">cited from="[1980] FCA 12">valid law of the commonwealth</citphrase>
<citphrase id="cp10.8">cited from="[1980] FCA 12">whether s. 80 is confined to contraventions capable of being committed by the person who is alleged to have aided, abetted, counselled or procured or induced, or attempted to induce or to have been knowingly concerned in, or party to, those contraventions.</citphrase>
<citphrase id="cp11.0">cited from="[1972] HCA 69">constitutional law (cth)</citphrase>
<citphrase id="cp11.1">cited from="[1972] HCA 69">powers of commonwealth parliament</citphrase>
<citphrase id="cp11.2">cited from="[1972] HCA 69">restrictive trade practices</citphrase>
<citphrase id="cp11.3">cited from="[1972] HCA 69">retail price maintenance</citphrase>
<citphrase id="cp11.4">cited from="[1972] HCA 69">judicial power of commonwealth</citphrase>
<citphrase id="cp11.5">cited from="[1972] HCA 69">power to grant injunction restraining persons from engaging in retail price maintenance practice invested in commonwealth industrial court</citphrase>
<citphrase id="cp11.6">cited from="[1972] HCA 69">whether within judicial power of the commonwealth</citphrase>
<citphrase id="cp11.7">cited from="[1972] HCA 69">freedom of inter-state trade and commerce</citphrase>
<citphrase id="cp11.8">cited from="[1972] HCA 69">prohibition of retail price maintenance</citphrase>
<citphrase id="cp11.9">cited from="[1972] HCA 69">whether permissible regulation</citphrase>
<citphrase id="cp11.10">cited from="[1972] HCA 69">the constitution (63  64 vict. c. 12), ss. 51 (i.), (xx.), 71 , 92</citphrase>
<citphrase id="cp11.11">cited from="[1972] HCA 69">trade practices act 1965-1971 (cth), ss. 66b (2), 90aa.  restraint of trade</citphrase>
<citphrase id="cp11.12">cited from="[1972] HCA 69">restrictive practices</citphrase>
<citphrase id="cp11.13">cited from="[1972] HCA 69">retail price maintenance</citphrase>
<citphrase id="cp11.14">cited from="[1972] HCA 69">withholding of supply of goods to retailer</citphrase>
<citphrase id="cp11.15">cited from="[1972] HCA 69">withholding "for the reason that" retailer likely to sell below recommended price</citphrase>
<citphrase id="cp11.16">cited from="[1972] HCA 69">reason for withholding</citphrase>
<citphrase id="cp11.17">cited from="[1972] HCA 69">price specified as price below which the goods not to be sold</citphrase>
<citphrase id="cp11.18">cited from="[1972] HCA 69">whether a recommended price a "specified" price</citphrase>
<citphrase id="cp11.19">cited from="[1972] HCA 69">power of industrial court to make restraining order</citphrase>
<citphrase id="cp11.20">cited from="[1972] HCA 69">trade practices act 1965-1971 (cth), ss. 66b (2), 90aa.</citphrase>
<citphrase id="cp12.0">cited from="[1964] HCA 78">industrial and provident societies (s.a.)</citphrase>
<citphrase id="cp12.1">cited from="[1964] HCA 78">winding up</citphrase>
<citphrase id="cp12.2">cited from="[1964] HCA 78">applicability of companies legislation</citphrase>
<citphrase id="cp12.3">cited from="[1964] HCA 78">amounts standing to credit of members in books</citphrase>
<citphrase id="cp12.4">cited from="[1964] HCA 78">to what extent share capital</citphrase>
<citphrase id="cp12.5">cited from="[1964] HCA 78">whether business of banking carried on</citphrase>
<citphrase id="cp12.6">cited from="[1964] HCA 78">industrial and provident societies act, 1923-1958 (s.a.)</citphrase>
<citphrase id="cp12.7">cited from="[1964] HCA 78">companies act, 1934-1960 (s.a.), s. 187</citphrase>
<citphrase id="cp12.8">cited from="[1964] HCA 78">banking act 1945 (cth), s. 7.</citphrase>
<citphrase id="cp13.0">cited from="[1956] HCA 10">constitutional law (cth.)</citphrase>
<citphrase id="cp13.1">cited from="[1956] HCA 10">industrial arbitration</citphrase>
<citphrase id="cp13.2">cited from="[1956] HCA 10">court of conciliation and arbitration</citphrase>
<citphrase id="cp13.3">cited from="[1956] HCA 10">arbitral power</citphrase>
<citphrase id="cp13.4">cited from="[1956] HCA 10">judicial power</citphrase>
<citphrase id="cp13.5">cited from="[1956] HCA 10">combination of powers in one body</citphrase>
<citphrase id="cp13.6">cited from="[1956] HCA 10">validity</citphrase>
<citphrase id="cp13.7">cited from="[1956] HCA 10">the constitution (63  64 vict. c. 12), ss. 51 (xxxv.), (xxxix.), 71 , 72 , 73 , 76 (ii.), 77</citphrase>
<citphrase id="cp13.8">cited from="[1956] HCA 10">conciliation and arbitration act 1904-1952 (no. 13 of 1904</citphrase>
<citphrase id="cp13.9">cited from="[1956] HCA 10">no. 34 of 1952), ss. 29 (1) (b), (c), 29a.  industrial law (cth.)</citphrase>
<citphrase id="cp13.10">cited from="[1956] HCA 10">court of conciliation and arbitration</citphrase>
<citphrase id="cp13.11">cited from="[1956] HCA 10">vested with judicial and arbitral powers</citphrase>
<citphrase id="cp13.12">cited from="[1956] HCA 10">combination of powers</citphrase>
<citphrase id="cp13.13">cited from="[1956] HCA 10">constitutional validity</citphrase>
<citphrase id="cp13.14">cited from="[1956] HCA 10">the constitution (63  64 vict. c. 12), ss. 51 (xxxv.), (xxxix.), 71 , 72 , 73 , 76 (ii.), 77</citphrase>
<citphrase id="cp13.15">cited from="[1956] HCA 10">conciliation and arbitration act 1904-1952 (no. 13 of 1904</citphrase>
<citphrase id="cp13.16">cited from="[1956] HCA 10">no. 34 of 1952), ss. 29 (1) (b), (c), 29a.</citphrase>
<citphrase id="cp16.0">citing from="[2008] FCAFC 90">contempt</citphrase>
<citphrase id="cp16.1">citing from="[2008] FCAFC 90">appeal against finding of contempt and orders of imprisonment</citphrase>
<citphrase id="cp16.2">citing from="[2008] FCAFC 90">whether s 65a of the banking act unconstitutional</citphrase>
<citphrase id="cp16.3">citing from="[2008] FCAFC 90">held not unconstitutional contempt</citphrase>
<citphrase id="cp16.4">citing from="[2008] FCAFC 90">appeal against finding of contempt and orders of imprisonment</citphrase>
<citphrase id="cp16.5">citing from="[2008] FCAFC 90">whether contempt proceedings part of an abuse of process</citphrase>
<citphrase id="cp16.6">citing from="[2008] FCAFC 90">held not an abuse of process contempt</citphrase>
<citphrase id="cp16.7">citing from="[2008] FCAFC 90">appeal against finding of contempt and orders of imprisonment</citphrase>
<citphrase id="cp16.8">citing from="[2008] FCAFC 90">whether interlocutory restraining order applied to money used by the appellant</citphrase>
<citphrase id="cp16.9">citing from="[2008] FCAFC 90">whether interlocutory restraining order clear enough to found charge for contempt</citphrase>
<citphrase id="cp16.10">citing from="[2008] FCAFC 90">whether primary judge should have admitted transcript to assist in construction of order</citphrase>
<citphrase id="cp16.11">citing from="[2008] FCAFC 90">held order clear and designed to operate on future as well as present moneys</citphrase>
<citphrase id="cp16.12">citing from="[2008] FCAFC 90">held reasons for judgment will be primary source of extrinsic material used in constructing orders</citphrase>
<citphrase id="cp16.13">citing from="[2008] FCAFC 90">held that in any case order was clear and so there was no error in not admitting transcript contempt</citphrase>
<citphrase id="cp16.14">citing from="[2008] FCAFC 90">appeal against finding of contempt and orders of imprisonment</citphrase>
<citphrase id="cp16.15">citing from="[2008] FCAFC 90">whether primary judge erred in relying upon appellant's failure to give evidence to support inferences</citphrase>
<citphrase id="cp16.16">citing from="[2008] FCAFC 90">held primary judge did not so err</citphrase>
<citphrase id="cp16.17">citing from="[2008] FCAFC 90">appeal dismissed</citphrase>
<citphrase id="cp17.0">citing from="[2008] FCAFC 88">banking</citphrase>
<citphrase id="cp17.1">citing from="[2008] FCAFC 88">appeal against findings of contraventions of sections of the banking act</citphrase>
<citphrase id="cp17.2">citing from="[2008] FCAFC 88">whether appellant was engaged in a "banking business"</citphrase>
<citphrase id="cp17.3">citing from="[2008] FCAFC 88">where it had been established that the appellant had made a loan</citphrase>
<citphrase id="cp17.4">citing from="[2008] FCAFC 88">held that the making of the loan by the appellant was enough to establish that the appellant had engaged in the business of banking</citphrase>
<citphrase id="cp17.5">citing from="[2008] FCAFC 88">held that it need only be established that a person proposes to engage in banking business to enliven s 65a</citphrase>
<citphrase id="cp17.6">citing from="[2008] FCAFC 88">held that the evidence was sufficient to enliven s 65a</citphrase>
<citphrase id="cp17.7">citing from="[2008] FCAFC 88">held that orders made under s 65a were appropriate and properly made constitutional law</citphrase>
<citphrase id="cp17.8">citing from="[2008] FCAFC 88">appeal from judgment that section 65a of the banking act is not unconstitutional</citphrase>
<citphrase id="cp17.9">citing from="[2008] FCAFC 88">whether s 65a supported by s 51(xiii) of the constitution (the banking power)</citphrase>
<citphrase id="cp17.10">citing from="[2008] FCAFC 88">held that s 65a is clearly a valid exercise of the power derived from s 51(xiii) (the banking power) and s 51(xxxix) (the incidental power) of the constitution  constitutional law</citphrase>
<citphrase id="cp17.11">citing from="[2008] FCAFC 88">appeal from judgment that section 65a of the banking act is not unconstitutional</citphrase>
<citphrase id="cp17.12">citing from="[2008] FCAFC 88">whether interlocutory restraining orders imposed on the appellant amounted to acquisitions not "on just terms" in contravention of s 51(xxxi) of the constitution</citphrase>
<citphrase id="cp17.13">citing from="[2008] FCAFC 88">held that the restraining orders did not amount to an acquisition of property</citphrase>
<citphrase id="cp17.14">citing from="[2008] FCAFC 88">held that in any case s 51(xxxi) would have no application in this case as to require the provision of just terms in the imposition of restraints would defeat the purpose of the restraint itself constitutional law</citphrase>
<citphrase id="cp17.15">citing from="[2008] FCAFC 88">appeal from judgment that section 65a of the banking act is not unconstitutional</citphrase>
<citphrase id="cp17.16">citing from="[2008] FCAFC 88">whether orders imposed under s 65a amount to a conviction of committing contraventions of the banking act without criminal trial by jury in contravention of s 80 of the constitution</citphrase>
<citphrase id="cp17.17">citing from="[2008] FCAFC 88">held that the appellant has not been convicted of any crime</citphrase>
<citphrase id="cp17.18">citing from="[2008] FCAFC 88">held that s 65a contains a civil procedure to provide remedies</citphrase>
<citphrase id="cp17.19">citing from="[2008] FCAFC 88">held that s 80 has no application to procedures of the kind in s 65a constitutional law</citphrase>
<citphrase id="cp17.20">citing from="[2008] FCAFC 88">appeal from judgment that section 65a of the banking act is not unconstitutional</citphrase>
<citphrase id="cp17.21">citing from="[2008] FCAFC 88">whether s 65a offends against the separation of powers in the constitution</citphrase>
<citphrase id="cp17.22">citing from="[2008] FCAFC 88">held that s 65a does not confer on the court any legislative function practice and procedure</citphrase>
<citphrase id="cp17.23">citing from="[2008] FCAFC 88">appeal against finding that proceedings brought against the appellant were not an abuse of process</citphrase>
<citphrase id="cp17.24">citing from="[2008] FCAFC 88">whether principal proceedings were brought for a collateral purpose</citphrase>
<citphrase id="cp17.25">citing from="[2008] FCAFC 88">held that the complaints made do not support the contention</citphrase>
<citphrase id="cp17.26">citing from="[2008] FCAFC 88">held that there was no abuse of process</citphrase>
<citphrase id="cp18.0">citing from="[2008] FCA 101">practice and procedure</citphrase>
<citphrase id="cp18.1">citing from="[2008] FCA 101">notice of motion on behalf of the receiver</citphrase>
<citphrase id="cp18.2">citing from="[2008] FCA 101">application seeking further funds to be included in the receivership, an extension of time of the receivership and for the respondent to attend for examination and file an affidavit of documents</citphrase>
<citphrase id="cp18.3">citing from="[2008] FCA 101">whether respondent should be excused in limine from swearing affidavit or attending for examination</citphrase>
<citphrase id="cp18.4">citing from="[2008] FCA 101">whether examination or affidavit of documents would expose respondent to self incrimination</citphrase>
<citphrase id="cp18.5">citing from="[2008] FCA 101">application granted in part</citphrase>
<citphrase id="cp20.0">citing from="[2007] FCA 1714">practice and procedure</citphrase>
<citphrase id="cp20.1">citing from="[2007] FCA 1714">notice of motion</citphrase>
<citphrase id="cp20.2">citing from="[2007] FCA 1714">application seeking release of funds for the purpose of paying legal fees</citphrase>
<citphrase id="cp20.3">citing from="[2007] FCA 1714">where judgment in the principal proceeding found that the respondent had no legal right to use the funds</citphrase>
<citphrase id="cp20.4">citing from="[2007] FCA 1714">application refused practice and procedure</citphrase>
<citphrase id="cp20.5">citing from="[2007] FCA 1714">notice of motion</citphrase>
<citphrase id="cp20.6">citing from="[2007] FCA 1714">application for stay of an order imposed by a full court pending the hearing of a proposed appeal</citphrase>
<citphrase id="cp20.7">citing from="[2007] FCA 1714">where respondent found to be in contempt of that order</citphrase>
<citphrase id="cp20.8">citing from="[2007] FCA 1714">where full court did not confer on a single judge of the court the power to vary its orders or delay their implementation</citphrase>
<citphrase id="cp20.9">citing from="[2007] FCA 1714">application refused practice and procedure</citphrase>
<citphrase id="cp20.10">citing from="[2007] FCA 1714">notice of motion</citphrase>
<citphrase id="cp20.11">citing from="[2007] FCA 1714">application to stay the implementation of the judgment in the principal proceeding in respect of the appointment of a receiver, pending the hearing of a proposed appeal</citphrase>
<citphrase id="cp20.12">citing from="[2007] FCA 1714">where the respondent's application for a stay was filed before the actual form of the orders was known</citphrase>
<citphrase id="cp20.13">citing from="[2007] FCA 1714">whether proposed appeal is genuine and based on reasonably arguable grounds</citphrase>
<citphrase id="cp20.14">citing from="[2007] FCA 1714">stay application adjourned to allow the respondent to consider orders and draft a notice of appeal</citphrase>
<citphrase id="cp21.0">citing from="[2007] FCA 1612">contempt</citphrase>
<citphrase id="cp21.1">citing from="[2007] FCA 1612">civil contempt</citphrase>
<citphrase id="cp21.2">citing from="[2007] FCA 1612">failure to pay fine imposed by the full court</citphrase>
<citphrase id="cp21.3">citing from="[2007] FCA 1612">capacity to pay fine</citphrase>
<citphrase id="cp21.4">citing from="[2007] FCA 1612">whether respondent had the capacity to pay all or any part of the fine</citphrase>
<citphrase id="cp21.5">citing from="[2007] FCA 1612">whether refusal to pay fine was "wilful"</citphrase>
<citphrase id="cp21.6">citing from="[2007] FCA 1612">standard of proof</citphrase>
<citphrase id="cp21.7">citing from="[2007] FCA 1612">beyond reasonable doubt</citphrase>
<citphrase id="cp22.0">citing from="[2007] FCA 1609">contempt</citphrase>
<citphrase id="cp22.1">citing from="[2007] FCA 1609">civil contempt</citphrase>
<citphrase id="cp22.2">citing from="[2007] FCA 1609">injunction</citphrase>
<citphrase id="cp22.3">citing from="[2007] FCA 1609">extra-territorial operation</citphrase>
<citphrase id="cp22.4">citing from="[2007] FCA 1609">failure to comply</citphrase>
<citphrase id="cp22.5">citing from="[2007] FCA 1609">clarity of order</citphrase>
<citphrase id="cp22.6">citing from="[2007] FCA 1609">standard of proof</citphrase>
<citphrase id="cp22.7">citing from="[2007] FCA 1609">beyond reasonable doubt</citphrase>
</citphrases>
<citances>
<sentence from="[2008] FCAFC 90" id="cs0">15 However, for completeness, we should say that, even if the appellant had satisfied this Court that s 65A was an invalid exercise of power by the Commonwealth or that the proceedings were an abuse of process by the respondent, the appellant could not have availed himself of those contentions on this appeal. The orders upon which the finding of contempt and the sentence of imprisonment rest were orders made by a judge of a superior court and with which the appellant was bound to comply until the orders were set aside: Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608 ; Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129 at 137-138; Re Macks; Ex parte Saint [2000] HCA 62 ; (2000) 204 CLR 158 at 177-178, 185-187, 235, 279.</sentence>
<sentence from="[2008] FCAFC 88" id="cs1"/>
<sentence from="[2008] FCA 101" id="cs2">1 By order made herein dated 7 November 2007 I appointed Mr Colin Nicol as receiver to deal with certain funds which had been held in the names of the respondent, the Terra Nova Cache and the Principality of Camside. The circumstances in which the receiver came to be appointed are explained in my judgment in Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608. Mr Nicol entered on his task promptly. He has discovered various funds which are additional to those which are identified in Schedule A of the order made on 7 November 2007. He has also identified a large number of persons who claim to have made deposits in the Terra Nova Cache. He has sought the co-operation and assistance of the respondent in identifying depositors and the whereabouts of moneys contributed by them. He has received very little assistance from the respondent in response to these requests. 13 Counsel for the receiver argued that these orders should be made because the respondent had, during the period of the receivership, failed to respond to requests made by the receiver that he provide relevant documents to the receiver. In particular the receiver relied on the failure of the respondent to comply with paragraph five of the orders made on 7 November 2007 which required the respondent to provide to the receiver "all bank statements, books of accounts, receipts, invoices, correspondence or other documents in his possession, custody, power or control relating to monies received from members of the public for deposit in the Terra Nova Cache. " The receiver's solicitor had written on numerous occasions to the respondent requesting that he comply with the Court's order. The respondent had not done so. He had, through his solicitors, made general claims that he could not be required to produce any documents because of the protection afforded him by the privilege against self incrimination. In one letter the respondent acknowledged that he had three documents (bank statements) which fell within the terms of the order. He also provided the receiver with a copy of documentary evidence tendered in the course of the trial of the principal proceeding in which the order appointing the receiver was made: see Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608. The respondent has failed to advise the receiver whether there are additional documents, which although not in his possession, are within his power or control. </sentence>
<sentence from="[2007] FCA 2098" id="cs3">1 On 26 October 2007, Tracey J delivered judgment in proceeding number VID 1607 of 2005. The judgment is published under the designation Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608. In the proceeding in which that judgment was given, the Australian Prudential Regulation Authority ("APRA") sought, among other things, relief by way of a permanent injunction against the respondent, Mr Siminton, pursuant to s 65A of the Banking Act 1959 (Cth) ("the Banking Act "). Section 65A provides that the Court may grant an injunction restraining a person from engaging in conduct, or requiring the person to do a particular act or thing, in such terms as the Court thinks appropriate, if there is a contravention or threatened contravention of the Act. </sentence>
<sentence from="[2007] FCA 1714" id="cs4">1 On 26 October 2007 I delivered judgment in this proceeding: see Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608. I found that Mr Siminton was a person who had carried on and was proposing to carry on the business of banking in Australia and that such conduct constituted or would constitute a contravention of s 7 of the Banking Act 1959 (Cth) ("the Act"). I also found that Mr Siminton had engaged in conduct which contravened s 66 of the Act. I foreshadowed making injunctive orders to restrain Mr Siminton from engaging in further contraventions of the Act and orders appointing a receiver to identify the persons who had made deposits in the "bank" established by Mr Siminton, to get in the funds which were the subject of an order, made by Gray J on 10 January 2006, and to provide for an orderly and equitable distribution of those funds to depositors. I listed the matter for mention on 7 November 2007. On that day I made the foreshadowed orders.</sentence>
<sentence from="[2007] FCA 1612" id="cs5">9 The first objection was that s 65A of the Act was "unconstitutional" and that this precluded the laying of contempt charges. I rejected this contention for reasons which I gave when dealing with the principal proceeding: see Australian Prudential Regulation Authority v Siminton [2007] FCA 1608 at [7] to [11]. 12 The fourth objection was that the principal application was an abuse of process which should permanently be stayed or struck-out. This submission was also made in the principal proceeding. I rejected it then: see Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608 at [25] to [27]. I reject it now.</sentence>
<sentence from="[2007] FCA 1609" id="cs6">The first was that, for a variety of reasons, provisions of the Act on which APRA relied in the principal proceeding were "unconstitutional". There was also an objection that the principal proceeding was an abuse of process and that it should permanently be stayed. I rejected these submissions for reasons which I gave when dealing with the principal proceeding: see Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608 at [7] to [27]. In any event, these arguments cannot avail Mr Siminton in contempt proceedings. As the Full Court pointed out in Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129 at 137-8:

 "An order made by a superior court of record stands and is bound to be observed even though it may ultimately be determined that the order should not have been made or was made without jurisdiction.</sentence>
</citances>
<legistitles>
<title id="l0">BANKING ACT 1959 </title>
<title id="l1">BANKING ACT 1959 - SECT 5 Interpretation</title>
<title id="l2">BANKING ACT 1959 - SECT 7 Person other than a body corporate must not carry on banking business</title>
<title id="l3">BANKING ACT 1959 - SECT 11 APRA may determine that provisions of this Act do not apply</title>
<title id="l4">BANKING ACT 1959 - SECT 65A Injunctions</title>
<title id="l5">BANKING ACT 1959 - SECT 66 Restriction on use of certain words and expressions</title>
<title id="l6">BANKING ACT 1959 - SECT 69E Compensation for acquisition of property</title>
<title id="l7">BILLS OF EXCHANGE ACT 1909 </title>
<title id="l8">CUSTOMS ACT 1901 </title>
<title id="l9">CUSTOMS ACT 1901 - SECT 51 Prohibited imports</title>
<title id="l10">CUSTOMS ACT 1901 - SECT 243B Pecuniary penalties</title>
<title id="l11">CUSTOMS ACT 1901 - SECT 243E Court may make restraining order against property</title>
<title id="l12">CORPORATIONS ACT 2001 </title>
<title id="l13">CORPORATIONS ACT 2001 - SECT 1324 Injunctions</title>
<title id="l14">COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT </title>
<title id="l15">COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 51 Legislative powers of the Parliament [see Notes 10 and 11]</title>
<title id="l16">COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 80 Trial by jury</title>
<title id="l17">FEDERAL COURT OF AUSTRALIA ACT 1976 </title>
<title id="l18">FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 23 Making of orders and issue of writs</title>
<title id="l19">FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 57 Receivers</title>
<title id="l20">FISHERIES MANAGEMENT ACT 1991 </title>
<title id="l21">FISHERIES MANAGEMENT ACT 1991 - SECT 51 AFMA not concerned with certain matters</title>
<title id="l22">JUDICIARY ACT 1903 </title>
<title id="l23">JUDICIARY ACT 1903 - SECT 78B Notice to Attorneys-General</title>
<title id="l24">FEDERAL COURT RULES </title>
<title id="l25">FINANCIAL SECTOR LEGISLATION AMENDMENT ACT (NO. 1) 2000 NO. 160, 2000 </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2005] FCAFC 217">practice and procedure</citphrase>
<citphrase id="cp0.1">cited from="[2005] FCAFC 217">application for order forbidding publication of respondent's name</citphrase>
<citphrase id="cp0.2">cited from="[2005] FCAFC 217">respondent infected with hiv</citphrase>
<citphrase id="cp0.3">cited from="[2005] FCAFC 217">whether identifying respondent would "prevent prejudice to the administration of justice"</citphrase>
<citphrase id="cp0.4">cited from="[2005] FCAFC 217">relevance of name being already in public domain</citphrase>
</citphrases>
<citances>
</citances>
<legistitles>
<title id="l0">FEDERAL COURT OF AUSTRALIA ACT 1976 </title>
<title id="l1">FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 50 Prohibition of publication of evidence etc.</title>
<title id="l2">FEDERAL COURT RULES 1979 </title>
<title id="l3">FORESTRY ACT 1920 </title>
<title id="l4">FORESTRY ACT 1920 - SECT 7 7.Objectives of corporation</title>
</legistitles>
</case>