Question:
<citphrase id="cp0.0">cited from="[2007] HCA 35">szfde v minister for immigration and citizenship  immigration</citphrase>
<citphrase id="cp0.1">cited from="[2007] HCA 35">refugees</citphrase>
<citphrase id="cp0.2">cited from="[2007] HCA 35">the refugee review tribunal ("the tribunal") affirmed a decision refusing the appellants' application for protection visas</citphrase>
<citphrase id="cp0.3">cited from="[2007] HCA 35">the appellants did not attend the tribunal hearing as a result of fraudulent advice given by a purported registered migration agent</citphrase>
<citphrase id="cp0.4">cited from="[2007] HCA 35">whether there was fraud "by" or "on" the tribunal.  immigration</citphrase>
<citphrase id="cp0.5">cited from="[2007] HCA 35">refugee review tribunal</citphrase>
<citphrase id="cp0.6">cited from="[2007] HCA 35">inquisitorial process</citphrase>
<citphrase id="cp0.7">cited from="[2007] HCA 35">distinction between tribunal process and inter partes litigation</citphrase>
<citphrase id="cp0.8">cited from="[2007] HCA 35">whether fraud practised by an agent upon the applicants for a protection visa subverted the operation of div 4 of pt 7 of the migration act 1958 (cth)</citphrase>
<citphrase id="cp0.9">cited from="[2007] HCA 35">whether this fraud led to the jurisdiction of the tribunal remaining constructively unexercised.  administrative law</citphrase>
<citphrase id="cp0.10">cited from="[2007] HCA 35">constitutional writs</citphrase>
<citphrase id="cp0.11">cited from="[2007] HCA 35">mandamus and certiorari</citphrase>
<citphrase id="cp0.12">cited from="[2007] HCA 35">availability of constitutional writs in cases of fraud.</citphrase>
<citphrase id="cp1.0">cited from="[2006] FCA 1420">migration</citphrase>
<citphrase id="cp1.1">cited from="[2006] FCA 1420">judicial review</citphrase>
<citphrase id="cp1.2">cited from="[2006] FCA 1420">procedural fairness</citphrase>
<citphrase id="cp1.3">cited from="[2006] FCA 1420">where appellant failed to attend hearing before refugee review tribunal</citphrase>
<citphrase id="cp1.4">cited from="[2006] FCA 1420">where visa refused by tribunal</citphrase>
<citphrase id="cp1.5">cited from="[2006] FCA 1420">where appellant advised by migration agent not to attend hearing</citphrase>
<citphrase id="cp1.6">cited from="[2006] FCA 1420">where appellant alleges fraud against agent</citphrase>
<citphrase id="cp1.7">cited from="[2006] FCA 1420">effect of ss 422b, 425, 426 of migration act 1958 (cth) on availability of judicial review. administrative law</citphrase>
<citphrase id="cp1.8">cited from="[2006] FCA 1420">judicial review</citphrase>
<citphrase id="cp1.9">cited from="[2006] FCA 1420">jurisdictional error</citphrase>
<citphrase id="cp1.10">cited from="[2006] FCA 1420">where alleged fraud on appellant by third party induced non-attendance at hearing</citphrase>
<citphrase id="cp1.11">cited from="[2006] FCA 1420">where decision maker unaware of alleged fraud</citphrase>
<citphrase id="cp1.12">cited from="[2006] FCA 1420">whether statutory process corrupted by fraud</citphrase>
<citphrase id="cp1.13">cited from="[2006] FCA 1420">whether jurisdictional error arises</citphrase>
<citphrase id="cp1.14">cited from="[2006] FCA 1420">procedural fairness</citphrase>
<citphrase id="cp1.15">cited from="[2006] FCA 1420">whether breach of procedural fairness can arise without fault on the part of decision maker</citphrase>
<citphrase id="cp1.16">cited from="[2006] FCA 1420">whether breach of procedural fairness can arise where fault is that of party's own agent.  held</citphrase>
<citphrase id="cp1.17">cited from="[2006] FCA 1420">insufficient evidence to establish fraud</citphrase>
<citphrase id="cp1.18">cited from="[2006] FCA 1420">fraud by party's own agent where decision maker unaware of fraud does not lead to jurisdictional error</citphrase>
<citphrase id="cp1.19">cited from="[2006] FCA 1420">fraud or negligent or incorrect advice by party's own agent can not lead to a breach of procedural fairness</citphrase>
<citphrase id="cp1.20">cited from="[2006] FCA 1420">no jurisdictional error</citphrase>
<citphrase id="cp1.21">cited from="[2006] FCA 1420">appeal dismissed.</citphrase>
<citphrase id="cp2.0">cited from="[2006] FCAFC 142">migration</citphrase>
<citphrase id="cp2.1">cited from="[2006] FCAFC 142">judicial review</citphrase>
<citphrase id="cp2.2">cited from="[2006] FCAFC 142">procedural fairness</citphrase>
<citphrase id="cp2.3">cited from="[2006] FCAFC 142">fraud</citphrase>
<citphrase id="cp2.4">cited from="[2006] FCAFC 142">protection visa</citphrase>
<citphrase id="cp2.5">cited from="[2006] FCAFC 142">application to refugee review tribunal</citphrase>
<citphrase id="cp2.6">cited from="[2006] FCAFC 142">invitation to attend oral hearing</citphrase>
<citphrase id="cp2.7">cited from="[2006] FCAFC 142">fraudulent advice from migration agent that tribunal would refuse application</citphrase>
<citphrase id="cp2.8">cited from="[2006] FCAFC 142">advice that applicant should not attend hearing</citphrase>
<citphrase id="cp2.9">cited from="[2006] FCAFC 142">applicant dissuaded by agent's fraud from attending</citphrase>
<citphrase id="cp2.10">cited from="[2006] FCAFC 142">whether procedural unfairness</citphrase>
<citphrase id="cp2.11">cited from="[2006] FCAFC 142">effect of statutory provisions relating to invitation to appear and codification of natural justice hearing rule</citphrase>
<citphrase id="cp2.12">cited from="[2006] FCAFC 142">whether apparent consent to non-appearance vitiated by fraud</citphrase>
<citphrase id="cp2.13">cited from="[2006] FCAFC 142">whether tribunal decision induced or affected by fraud</citphrase>
<citphrase id="cp4.0">citing from="[2011] FMCA 27">migration</citphrase>
<citphrase id="cp4.1">citing from="[2011] FMCA 27">review of tribunal's decision to affirm cancellation of student visa under s.109</citphrase>
<citphrase id="cp4.2">citing from="[2011] FMCA 27">application for visa supported by "bogus" documentation</citphrase>
<citphrase id="cp4.3">citing from="[2011] FMCA 27">invitation to respond said not to have been received by applicant</citphrase>
<citphrase id="cp4.4">citing from="[2011] FMCA 27">invitation sent in accord with legislative requirements</citphrase>
<citphrase id="cp4.5">citing from="[2011] FMCA 27">applicant said to be a victim of indian bank manager and indian education agent</citphrase>
<citphrase id="cp4.6">citing from="[2011] FMCA 27">no evidence of fraud committed on tribunal</citphrase>
<citphrase id="cp4.7">citing from="[2011] FMCA 27">vague suggestion that minister estopped from cancelling after issue of visa in circumstances where the application on proper examination was manifestly not acceptable</citphrase>
<citphrase id="cp4.8">citing from="[2011] FMCA 27">application for review dismissed.</citphrase>
<citphrase id="cp5.0">citing from="[2010] FCA 562">migration</citphrase>
<citphrase id="cp5.1">citing from="[2010] FCA 562">appeal from decision of federal magistrate</citphrase>
<citphrase id="cp5.2">citing from="[2010] FCA 562">whether delay of 15 months between hearing and judgment amounts to jurisdictional error</citphrase>
<citphrase id="cp5.3">citing from="[2010] FCA 562">whether delay deprived federal magistrate of the capacity to give proper consideration to the appellant's case</citphrase>
<citphrase id="cp5.4">citing from="[2010] FCA 562">whether delay affected capacity of federal magistrate to make credibility findings</citphrase>
<citphrase id="cp6.0">citing from="[2010] FMCA 380">migration</citphrase>
<citphrase id="cp6.1">citing from="[2010] FMCA 380">application to review decision of refugee review tribunal</citphrase>
<citphrase id="cp6.2">citing from="[2010] FMCA 380">whether translation errors at tribunal hearing such that denial of a fair hearing under s.425 of the migration act 1958 (cth)</citphrase>
<citphrase id="cp6.3">citing from="[2010] FMCA 380">whether conduct of migration agent amounted to third party fraud such that the tribunal was unable to discharge its statutory functions.</citphrase>
<citphrase id="cp7.0">citing from="[2009] FMCA 1159">migration</citphrase>
<citphrase id="cp7.1">citing from="[2009] FMCA 1159">protection visa application</citphrase>
<citphrase id="cp7.2">citing from="[2009] FMCA 1159">alleged fraud by migration agent</citphrase>
<citphrase id="cp7.3">citing from="[2009] FMCA 1159">whether fraud</citphrase>
<citphrase id="cp7.4">citing from="[2009] FMCA 1159">whether fraud on refugee review tribunal.  migration</citphrase>
<citphrase id="cp7.5">citing from="[2009] FMCA 1159">protection visa application</citphrase>
<citphrase id="cp7.6">citing from="[2009] FMCA 1159">letter of invitation</citphrase>
<citphrase id="cp7.7">citing from="[2009] FMCA 1159">whether sent.  evidence</citphrase>
<citphrase id="cp7.8">citing from="[2009] FMCA 1159">standard of proof</citphrase>
<citphrase id="cp7.9">citing from="[2009] FMCA 1159">burden of proof where fraud and stultification of statutory tribunal's processes alleged</citphrase>
<citphrase id="cp7.10">citing from="[2009] FMCA 1159">gravity of issue.</citphrase>
<citphrase id="cp8.0">citing from="[2009] FMCA 983">migration</citphrase>
<citphrase id="cp8.1">citing from="[2009] FMCA 983">protection (class xa) visa</citphrase>
<citphrase id="cp8.2">citing from="[2009] FMCA 983">review of refugee review tribunal decision</citphrase>
<citphrase id="cp8.3">citing from="[2009] FMCA 983">citizen of fiji claiming fear of persecution as a member of a minority at the hands of fijian landowners</citphrase>
<citphrase id="cp8.4">citing from="[2009] FMCA 983">where applicant did not attend tribunal hearing</citphrase>
<citphrase id="cp8.5">citing from="[2009] FMCA 983">where applicant claims fraud by migration agent</citphrase>
<citphrase id="cp8.6">citing from="[2009] FMCA 983">whether fraudulent omission</citphrase>
<citphrase id="cp8.7">citing from="[2009] FMCA 983">delay</citphrase>
<citphrase id="cp8.8">citing from="[2009] FMCA 983">whether the applicant delayed in seeking a remedy</citphrase>
<citphrase id="cp8.9">citing from="[2009] FMCA 983">credibility</citphrase>
<citphrase id="cp8.10">citing from="[2009] FMCA 983">no reviewable error.</citphrase>
<citphrase id="cp9.0">citing from="[2009] FMCA 944">migration</citphrase>
<citphrase id="cp9.1">citing from="[2009] FMCA 944">review of rrt decision</citphrase>
<citphrase id="cp9.2">citing from="[2009] FMCA 944">applicant a citizen of china who claimed persecution on the ground of his adherence to falun gong</citphrase>
<citphrase id="cp9.3">citing from="[2009] FMCA 944">where tribunal considered inconsistency between applicant's statements and his written statement provided with his pva</citphrase>
<citphrase id="cp9.4">citing from="[2009] FMCA 944">where applicant assisted in his application by migration agent, mr lu</citphrase>
<citphrase id="cp9.5">citing from="[2009] FMCA 944">whether tribunal overlooked applicant's complaints regarding his migration agent</citphrase>
<citphrase id="cp9.6">citing from="[2009] FMCA 944">where applicant claimed that tribunal had constructive knowledge of other cases which had criticised mr lu's conduct</citphrase>
<citphrase id="cp9.7">citing from="[2009] FMCA 944">where tribunal considered that applicant's knowledge of falun gong could easily be acquired from the internet</citphrase>
<citphrase id="cp9.8">citing from="[2009] FMCA 944">whether this was "information" required to be put to the applicant.</citphrase>
<citphrase id="cp10.0">citing from="[2009] FMCA 667">migration</citphrase>
<citphrase id="cp10.1">citing from="[2009] FMCA 667">application to review decision of refugee review tribunal</citphrase>
<citphrase id="cp10.2">citing from="[2009] FMCA 667">matter remitted to tribunal</citphrase>
<citphrase id="cp10.3">citing from="[2009] FMCA 667">whether tribunal sent applicant notice of hearing invitation to the last address provided to the tribunal by the recipient in connection with the review</citphrase>
<citphrase id="cp10.4">citing from="[2009] FMCA 667">where applicant had provided his new address to the solicitors for the tribunal during judicial review proceedings</citphrase>
<citphrase id="cp10.5">citing from="[2009] FMCA 667">application dismissed.</citphrase>
<citphrase id="cp11.0">citing from="[2009] FMCA 542">migration</citphrase>
<citphrase id="cp11.1">citing from="[2009] FMCA 542">migration review tribunal</citphrase>
<citphrase id="cp11.2">citing from="[2009] FMCA 542">alleged fraud on the tribunal</citphrase>
<citphrase id="cp11.3">citing from="[2009] FMCA 542">applicant's representative not a registered migration agent</citphrase>
<citphrase id="cp11.4">citing from="[2009] FMCA 542">whether conduct of representative was negligent or fraudulent.</citphrase>
<citphrase id="cp12.0">citing from="[2009] FMCA 324">migration</citphrase>
<citphrase id="cp12.1">citing from="[2009] FMCA 324">protection (class xa) visa</citphrase>
<citphrase id="cp12.2">citing from="[2009] FMCA 324">refugee review tribunal</citphrase>
<citphrase id="cp12.3">citing from="[2009] FMCA 324">application for review of decision of refugee review tribunal affirming decision not to grant protection visa to citizen of china</citphrase>
<citphrase id="cp12.4">citing from="[2009] FMCA 324">where applicant was not invited to a hearing</citphrase>
<citphrase id="cp12.5">citing from="[2009] FMCA 324">allegation of fraud by migration agent</citphrase>
<citphrase id="cp12.6">citing from="[2009] FMCA 324">delay</citphrase>
<citphrase id="cp12.7">citing from="[2009] FMCA 324">whether relief should be refused in the exercise of the court's discretion</citphrase>
<citphrase id="cp12.8">citing from="[2009] FMCA 324">whether exceptional circumstances.</citphrase>
<citphrase id="cp13.0">citing from="[2009] FCA 197">migration</citphrase>
<citphrase id="cp13.1">citing from="[2009] FCA 197">appointment of an 'authorised recipient' under s 494d of the migration act 1958 (cth)</citphrase>
<citphrase id="cp13.2">citing from="[2009] FCA 197">whether s 494d requires the written signature of the visa applicant</citphrase>
<citphrase id="cp13.3">citing from="[2009] FCA 197">judicial review</citphrase>
<citphrase id="cp13.4">citing from="[2009] FCA 197">fraud</citphrase>
<citphrase id="cp13.5">citing from="[2009] FCA 197">requirement of causative connection between the fraud and the tribunal being unable to discharge its functions</citphrase>
<citphrase id="cp13.6">citing from="[2009] FCA 197">no link between the suggested fraud and the tribunal's decision-making process</citphrase>
<citphrase id="cp13.7">citing from="[2009] FCA 197">no jurisdictional error in mere bad or negligent advice or other mishap.</citphrase>
<citphrase id="cp14.0">citing from="[2008] FCA 1864">migration</citphrase>
<citphrase id="cp14.1">citing from="[2008] FCA 1864">protection visa application completed and signed by first migration agent</citphrase>
<citphrase id="cp14.2">citing from="[2008] FCA 1864">appellant says claims incorrect and alleges fraud by migration agent</citphrase>
<citphrase id="cp14.3">citing from="[2008] FCA 1864">same claims repeated by second migration agent</citphrase>
<citphrase id="cp14.4">citing from="[2008] FCA 1864">appellant not informed of tribunal hearing by migration agent</citphrase>
<citphrase id="cp14.5">citing from="[2008] FCA 1864">appellant failed to inform migration agent of change of address</citphrase>
<citphrase id="cp14.6">citing from="[2008] FCA 1864">claims of fraud rejected</citphrase>
<citphrase id="cp14.7">citing from="[2008] FCA 1864">appeal dismissed</citphrase>
<citphrase id="cp15.0">citing from="[2008] FMCA 1239">migration</citphrase>
<citphrase id="cp15.1">citing from="[2008] FMCA 1239">application to review decision of refugee review tribunal</citphrase>
<citphrase id="cp15.2">citing from="[2008] FMCA 1239">whether tribunal constructively failed to exercise its jurisdiction as a result of third party fraud</citphrase>
<citphrase id="cp15.3">citing from="[2008] FMCA 1239">whether material finding in the absence of probative evidence</citphrase>
<citphrase id="cp15.4">citing from="[2008] FMCA 1239">whether misapplication of the law or whether decision irrational, illogical, and not based on findings or inferences of fact supported by logical grounds.</citphrase>
<citphrase id="cp16.0">citing from="[2008] FMCA 1056">migration</citphrase>
<citphrase id="cp16.1">citing from="[2008] FMCA 1056">visa</citphrase>
<citphrase id="cp16.2">citing from="[2008] FMCA 1056">protection (class xa) visa</citphrase>
<citphrase id="cp16.3">citing from="[2008] FMCA 1056">refugee review tribunal</citphrase>
<citphrase id="cp16.4">citing from="[2008] FMCA 1056">application for review of decision of refugee review tribunal</citphrase>
<citphrase id="cp16.5">citing from="[2008] FMCA 1056">where applicant did not attend tribunal hearing</citphrase>
<citphrase id="cp16.6">citing from="[2008] FMCA 1056">where applicant claims fraud by migration agent</citphrase>
<citphrase id="cp16.7">citing from="[2008] FMCA 1056">whether tribunal breached migration act 1958 (cth) s.424a</citphrase>
<citphrase id="cp16.8">citing from="[2008] FMCA 1056">inconsistency is not information for the purpose of s.424a</citphrase>
<citphrase id="cp16.9">citing from="[2008] FMCA 1056">whether applicant was not provided with a "real and meaningful invitation" to attend a hearing</citphrase>
<citphrase id="cp16.10">citing from="[2008] FMCA 1056">evidence</citphrase>
<citphrase id="cp16.11">citing from="[2008] FMCA 1056">standard of proof of fraud</citphrase>
<citphrase id="cp16.12">citing from="[2008] FMCA 1056">motive</citphrase>
<citphrase id="cp16.13">citing from="[2008] FMCA 1056">no jurisdictional error.</citphrase>
<citphrase id="cp17.0">citing from="[2008] FMCA 1049">migration</citphrase>
<citphrase id="cp17.1">citing from="[2008] FMCA 1049">application to review decision of refugee review tribunal</citphrase>
<citphrase id="cp17.2">citing from="[2008] FMCA 1049">no jurisdictional error</citphrase>
<citphrase id="cp17.3">citing from="[2008] FMCA 1049">application dismissed.</citphrase>
<citphrase id="cp18.0">citing from="[2008] FCA 600">migration</citphrase>
<citphrase id="cp18.1">citing from="[2008] FCA 600">judicial review</citphrase>
<citphrase id="cp18.2">citing from="[2008] FCA 600">protection visa</citphrase>
<citphrase id="cp18.3">citing from="[2008] FCA 600">where appellant worked for migration agent as a nanny</citphrase>
<citphrase id="cp18.4">citing from="[2008] FCA 600">where agent told appellant to work rather than go to tribunal hearing</citphrase>
<citphrase id="cp18.5">citing from="[2008] FCA 600">where appellant did not understand english</citphrase>
<citphrase id="cp18.6">citing from="[2008] FCA 600">whether invitation in english to attend hearing was "real and meaningful"</citphrase>
<citphrase id="cp18.7">citing from="[2008] FCA 600">whether tribunal failed to undertake a reasonably open and regular administrative procedural step</citphrase>
<citphrase id="cp18.8">citing from="[2008] FCA 600">where appellant subsequently gave false information to the federal magistrate</citphrase>
<citphrase id="cp18.9">citing from="[2008] FCA 600">allegation of third party fraud on tribunal</citphrase>
<citphrase id="cp18.10">citing from="[2008] FCA 600">leave sought to adduce further evidence explaining failure to attend hearing</citphrase>
</citphrases>
<citances>
<sentence from="[2011] FMCA 27" id="cs0">The next contention raised by the Applicant centres on her allegations concerning the conduct of her former migration agent and a bank manager in India. By these allegations, the Applicant seems to be attempting to bring her case within that considered in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 232 CLR 189. It is accepted that a fraud practiced on the Tribunal by a person, other than the visa Applicant, may disable the Tribunal from the due discharge of its statutory functions with respect to the conduct of the review. However, strong evidence in required to establish that fraud. Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 362 per Dixon J requires that fraud must be proved "clearly", "unequivocally", "strictly" or "certainly". Further, the fraud must be shown to affect the process proscribed by the Act; in particular, whether the Applicant had the opportunity to appear before the Tribunal to give evidence and present arguments (see SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 at [34] per Besanko J; SZLHP v Minister for Immigration and Citizenship [2007] FMCA 1675 at [16] per Scarlett FM. For a more recent discussion of the issued raised and considered in respect of an alleged fraud on the Tribunal see Minister for Immigration and Citizenship v Lu [2010] FCAFC 147). </sentence>
<sentence from="[2010] HCASL 258" id="cs1">The applicant commenced proceedings seeking judicial review of the Tribunal's determination in the Federal Magistrates Court on 20 January 2005. There were delays, to which it is not necessary to refer, associated with the progress of the application. In May 2006, the applicant swore an affidavit in support of his Amended Application in which he made allegations concerning the conduct of a Mr Lu who he said had acted as his migration agent. The Amended Application came on for hearing before Cameron FM on 20 October 2006. His Honour delivered a reserved judgment dismissing the application [2] . An appeal to the Federal Court (Besanko J) was successful and the proceeding was remitted to the Federal Magistrates Court for re-hearing [3] .
 </sentence>
<sentence from="[2010] FCA 562" id="cs2">Federal Magistrate Cameron subsequently delivered a reserved judgment wherein he dismissed the initial judicial review application: SZFNX v Minister For Immigration  Anor [2007] FMCA 47. A subsequent appeal to the Federal Court was heard by Besanko J who upheld the appeal: SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980. The matter was then remitted to the Federal Magistrates Court for rehearing.  Before Besanko J, however, in SZFNX [2007] FCA 1980 , which judgment was delivered on 13 December 2007, his Honour noted at [32] that the effect in SZFDE High Court was that, if an agent is fraudulent in his or her dealings with an applicant for review which results in the applicant not being heard by the RRT, then the RRT's decision may be void, the RRT's jurisdiction being "constructively unexercised". His Honour also considered that while it was not entirely clear, it would not be enough for it to be shown that an agent had acted "negligently or incorrectly". The agent must be shown to have acted fraudulently: see [33]. Accordingly, the giving of bad or negligent advice would be insufficient to make out the jurisdictional error. </sentence>
<sentence from="[2010] FMCA 380" id="cs3">There must also be a causative relationship between the fraud and the stultification or frustration of the legislative scheme governing the Tribunal's procedures. In Jalagam v Minister for Immigration  Citizenship [2009] FCA 197 it was alleged that a migration agent's failure to communicate a delegate's decision speedily amounted to fraud. As Edmonds J stated (at [42]): Plainly, SZFDE required not only that there be fraud in the sense of dishonesty, but also that there be a causative connection between that and the Tribunal being 'disabled ... from the true discharge of its imperative statutory functions with respect to the conduct of the review': SZFDE at [51]; such that its decision was, in law, no decision at all: (SZLIX at [18]; also [20]). If the appellant would in any event have been out of time, any dishonesty (assuming, contrary to his Honour's finding, that there was some dishonesty by anyone at Tan  Tan) would not have made any difference. There would be no link between the suggested 'fraud' and the Tribunal's decision-making process: SZFNX v Minister for Immigration  Citizenship [2007] FCA 1980 at [32] and [34] also speaks of this requirement. </sentence>
<sentence from="[2009] FMCA 1159" id="cs4">It was the latter issue which was addressed and determined in this Court in SZNFX v Minister for Immigration  Anor . [17] As noted in SZNFX v Minister for Immigration and Citizenship  Anor , [18] no findings were made in SZFNX (No. 1) as to whether Mr Lu, a migration agent, "had been fraudulent in his dealings with the appellant [applicant] and whether that had affected the process prescribed in the [ Migration ] Act . " [19] </sentence>
<sentence from="[2009] FMCA 983" id="cs5">Fraud is not to be found simply on the basis of what should properly be characterised as bad or even negligent advice or conduct (see SZHBC v Minister for Immigration and Citizenship at [17]-[18]; SZHZT v Minister for Immigration and Citizenship [35] at [3], [11] and [12]; SZFNX v Minister for Immigration and Citizenship [36] at [31]-[33]; SZHVM v Minister for Immigration and Citizenship [37] at [43]). </sentence>
<sentence from="[2009] FMCA 944" id="cs6">I was helpfully provided with a bundle of the decisions which I have marked as Exhibit 1. An analysis of these reveals the following. The first case is SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 , which was a case where the applicant complained that Mr Lu had not told him to go to a hearing. Importantly, the Federal Court decision of Besanko J notes the following: "The Federal Magistrate did not make any findings as to whether Mr Lu had been fraudulent in his dealings with the appellant and whether that had affected the process prescribed in the Act..." [36] </sentence>
<sentence from="[2009] FMCA 667" id="cs7">As set out above, in his review application the applicant alleged fraud on the part of his former migration agent. He did not elaborate on these claims in oral submissions. Counsel for the first respondent submitted that although the applicant contended that he did not receive the second Tribunal decision or other correspondence from the Tribunal by reason of his migration agent's fraudulent conduct, no such conduct was alleged in respect of the period after 6 September 2006 and that none of the matters alleged by the applicant disclosed fraud on the part of the migration agent prior to this time (see Minister for Immigration and Citizenship v SZLIX and Another [2008] FCAFC 17 ; (2008) 245 ALR 501). It was contended that taken at its highest the applicant's evidence may disclose oversight and/or negligence on the part of his migration agent, but that such conduct did not amount to fraud (see SZFDE and Others v Minister for Immigration and Citizenship and Another [2007] HCA 35 ; (2007) 232 CLR 189 at [53] and SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 at [33] ). </sentence>
<sentence from="[2009] FMCA 542" id="cs8">In SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 , Besanko J said at [34]: the fraud must affect the process prescribed by the Act, in particular, whether the applicant has had the opportunity to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.  In SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 , Besanko J said at [34]: the fraud must affect the process prescribed by the Act, in particular, whether the applicant has had the opportunity to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. </sentence>
<sentence from="[2009] FMCA 324" id="cs9">It was further submitted that, to establish fraud, the conduct of the third party must be more than simple failure to inform or bare negligence or inadvertence ( SZLIX at [33]; SZFNX v Minister for Immigration and Citizenship [25] at [33]; SZKAI v Minister for Immigration and Citizenship [26] at [32]). </sentence>
<sentence from="[2009] FCA 197" id="cs10">Plainly, SZFDE required not only that there be fraud in the sense of dishonesty, but also that there be a causative connection between that and the Tribunal being 'disabled ... from the true discharge of its imperative statutory functions with respect to the conduct of the review': SZFDE at [51]; such that its decision was, in law, no decision at all: ( SZLIX at [18]; also [20]). If the appellant would in any event have been out of time, any dishonesty (assuming, contrary to his Honour's finding, that there was some dishonesty by anyone at Tan  Tan) would not have made any difference. There would be no link between the suggested 'fraud' and the Tribunal's decision-making process: SZFNX v Minister for Immigration  Citizenship [2007] FCA 1980 at [32] and [34] also speaks of this requirement. </sentence>
<sentence from="[2008] FCA 1864" id="cs11">16 In SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 , Besanko J considered fraud by an agent in the context of a Tribunal hearing. In that case, the appellant's signature had been falsely placed on the document and part of the appellant's statement had been made up. Justice Besanko said at [37] that those facts may go some way towards establishing fraud but that it is still necessary for the appellant to show that the fraud has affected the process described by the Migration Act 1958 (Cth). In this case, the matters raised by the appellant, namely:

• the fact that Mr Shi signed the form in the context of an authority to act;

• the fact that the appellant had not notified Mr Shi of his new address; and

• the fact that Mr Shi failed to tell the appellant about the Tribunal hearing;

do not constitute fraud on the Tribunal within the meaning of SZFDE and there is not sufficient evidence to support such a conclusion.</sentence>
<sentence from="[2008] FMCA 1239" id="cs12">As the High Court stated in SZFDE at [53] by reference to what was said by French J in the Full Court of the Federal Court: " there are sound reasons of policy why a person whose conduct before an administrative Tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations ". I note that Besanko J suggested in SZFNX v Minister for Immigration  Citizenship [2007] FCA 1980 at [33] that " an applicant's failure to appear before the Tribunal by reason of the bad or negligent advice of his or her agent, as distinct from fraudulent advice or conduct, is not without more sufficient to constitute jurisdictional error " (and see SZLIX at [33]). On this basis the third party must be shown to have acted " fraudulently . " </sentence>
<sentence from="[2008] FMCA 1056" id="cs13">Ms Mitchelmore also submitted that even if the Court were to accept that there had been omission on the part of the agent in advising the Applicant of the hearing, there was no substratum of facts that would justify the inference that the agent dishonestly omitted to give that Applicant that information (see Minister for immigration and Citizenship v SZLIX [18] ). In order to constitute a fraud on the Tribunal, it is not enough for the agent to act negligently or incorrectly; he or she must act fraudulently (see SZFNX v Minister for Immigration and Citizenship [19] ).  SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64 ; 81 ALJR 1401 ; [2007] HCA 35 followed. Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17 cited. SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 cited. Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 cited. Hot Holdings Pty Ltd v Creasy [2002] HCA 15 ; (2002) 210 CLR 438 cited.</sentence>
<sentence from="[2008] FMCA 1049" id="cs14">The applicant's statements also raised the possibility that she was seeking to take issue with the conduct of the person she claimed had assisted her in connection with her application for a protection visa, although such a claim was not raised very clearly. When given the opportunity to expand in oral evidence on the circumstances in which she failed to attend the Tribunal hearing the applicant did not elaborate on this issue. Nonetheless, in light of the principles considered by Besanko J in SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 , it is appropriate to consider whether the applicant sought to raise, and if so whether she has established a case of third party fraud as considered by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 81 ALJR 1401. </sentence>
<sentence from="[2008] FCA 600" id="cs15">43 I do not consider that Mr Marzukie was motivated to hide anything from the Tribunal. The conflict of interest suggested between looking after the appellant's interests and his own personal needs, even if in breach of the Code of Conduct prescribed by the Migration Agents Regulations 1998 , has not been shown to be a matter Mr Marzukie would have been concerned about, or would have motivated his conduct. The real reason not to have the appellant attend the hearing was just the fact that Mr Marzukie wanted his child looked after by the appellant. Mr Marzukie may have put his interests above the appellant's but that could not amount to a finding of fraud. He described the 'interview' as 'important', but asserted that work was 'more important', which is more properly to be characterised as 'bad' advice: SZFDE [2007] HCA 35 ; 237 ALR 64 at [53] ; see also SZHBC v Minister for Immigration and Citizenship [2007] FCA 1310 at [17] - [18] per Spender J; SZHZT v Minister for Immigration and Citizenship [2007] FCA 1661 at [3] , [11] and [12] per Allsop J and SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 at [31] - [33] per Besanko J. Further, even if there had been a breach of the Migration Agents Regulations , this would not lead to a finding of fraud in the relevant sense. </sentence>
</citances>
<legistitles>
<title id="l0">JUDICIARY ACT 1903 </title>
<title id="l1">MIGRATION ACT 1958 </title>
<title id="l2">MIGRATION ACT 1958 - SECT 425 Tribunal must invite applicant to appear</title>
<title id="l3">MIGRATION ACT 1958 - SECT 426A Failure of applicant to appear before Tribunal</title>
<title id="l4">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2009] FCA 631">confidentiality and redacted materials</citphrase>
<citphrase id="cp0.1">cited from="[2009] FCA 631">negotiation by the parties</citphrase>
<citphrase id="cp3.0">cited from="[1984] FCA 34">practice and procedure</citphrase>
<citphrase id="cp3.1">cited from="[1984] FCA 34">security for costs</citphrase>
<citphrase id="cp3.2">cited from="[1984] FCA 34">jurisdiction of court to make order against limited liability company which is an applicant in proceedings</citphrase>
<citphrase id="cp3.3">cited from="[1984] FCA 34">matters relevant to exercise of judge's discretion.  federal court of australia act 1976 , sub-sec. 56(1), s. 59 , order 28 of the rules  judiciary act 1903 , s.79  companies code 1981 (q.)  practice and procedure</citphrase>
<citphrase id="cp3.4">cited from="[1984] FCA 34">security for costs</citphrase>
<citphrase id="cp3.5">cited from="[1984] FCA 34">bases of jurisdiction to make orders</citphrase>
<citphrase id="cp3.6">cited from="[1984] FCA 34">discretion</citphrase>
<citphrase id="cp3.7">cited from="[1984] FCA 34">federal court of australia act 1976 (cth), ss 56(1) , 59</citphrase>
<citphrase id="cp3.8">cited from="[1984] FCA 34">federal court rules 1979 (cth), o. 28</citphrase>
<citphrase id="cp3.9">cited from="[1984] FCA 34">companies code 1981 (qld), s. 553. held: (1) the jurisdiction of the federal court to make orders for security for costs under the federal court of australia act 1976 (cth), s. 56(1) was not limited to the circumstances envisaged by o. 28.</citphrase>
<citphrase id="cp4.0">citing from="[2010] FCA 32">practice and procedure</citphrase>
<citphrase id="cp4.1">citing from="[2010] FCA 32">costs</citphrase>
<citphrase id="cp4.2">citing from="[2010] FCA 32">principles applicable to exercise of discretion to award security for costs</citphrase>
<citphrase id="cp4.3">citing from="[2010] FCA 32">quantum of security</citphrase>
<citphrase id="cp4.4">citing from="[2010] FCA 32">application for gross sum of costs order</citphrase>
<citphrase id="cp4.5">citing from="[2010] FCA 32">assessment of gross sum pursuant to o 62 r 4(2)(c) of the federal court rules (fcr)</citphrase>
<citphrase id="cp4.6">citing from="[2010] FCA 32">application of discount</citphrase>
<citphrase id="cp4.7">citing from="[2010] FCA 32">relationship between assessment of a gross sum and principles of taxation of costs  costs</citphrase>
<citphrase id="cp4.8">citing from="[2010] FCA 32">strike out application</citphrase>
<citphrase id="cp4.9">citing from="[2010] FCA 32">application for costs to be paid forthwith pursuant to o 62 r 3 fcr</citphrase>
<citphrase id="cp4.10">citing from="[2010] FCA 32">factors relevant to exercise of discretion as to whether costs should be paid forthwith</citphrase>
<citphrase id="cp4.11">citing from="[2010] FCA 32">failure to rectify deficiencies in pleading</citphrase>
<citphrase id="cp4.12">citing from="[2010] FCA 32">relevance of award of security for costs</citphrase>
</citphrases>
<citances>
<sentence from="[2010] FCA 32" id="cs0">More recently in Wainter Pty Ltd ACN 008 725 586 v Freehills (A Firm) (No 2) [2009] FCA 770 , Barker J confirmed (at [9]): </sentence>
</citances>
<legistitles>
<title id="l0">CORPORATIONS ACT 2001 </title>
<title id="l1">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2008] FCA 1009">industrial law</citphrase>
<citphrase id="cp0.1">cited from="[2008] FCA 1009">application for an order seeking a civil penalty under s 285f(4) of the workplace relations act 1996 (cth) (the act) for a breach of s 285e of the act</citphrase>
<citphrase id="cp0.2">cited from="[2008] FCA 1009">whether respondent provided adequate notice regarding his intention to exercise his power under ss 285b or 285c of the act</citphrase>
<citphrase id="cp0.3">cited from="[2008] FCA 1009">whether the respondent in exercise of his power under the act intentionally hindered or obstructed any employer or employees</citphrase>
<citphrase id="cp0.4">cited from="[2008] FCA 1009">application allowed.</citphrase>
<citphrase id="cp1.0">cited from="[2004] FCAFC 72">trade practices</citphrase>
<citphrase id="cp1.1">cited from="[2004] FCAFC 72">civil penalty</citphrase>
<citphrase id="cp1.2">cited from="[2004] FCAFC 72">contravention of s 10 of the petroleum retail marketing sites act 1980 (cth)</citphrase>
<citphrase id="cp1.3">cited from="[2004] FCAFC 72">parties present joint submissions on the appropriate pecuniary penalty</citphrase>
<citphrase id="cp1.4">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="cp1.5">cited from="[2004] FCAFC 72">powers and responsibilities of court faced with joint submission on penalty.</citphrase>
<citphrase id="cp4.0">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="cp4.1">cited from="[1996] FCA 1134">penalties under s.76 for contraventions of part iv</citphrase>
<citphrase id="cp4.2">cited from="[1996] FCA 1134">price fixing</citphrase>
<citphrase id="cp4.3">cited from="[1996] FCA 1134">effect of agreement between a.c.c.c. and corporation on joint submissions proposing particular orders</citphrase>
<citphrase id="cp4.4">cited from="[1996] FCA 1134">desirability of settlement of such cases</citphrase>
<citphrase id="cp4.5">cited from="[1996] FCA 1134">penalty cases not criminal prosecutions</citphrase>
<citphrase id="cp4.6">cited from="[1996] FCA 1134">matters relevant to penalty</citphrase>
<citphrase id="cp4.7">cited from="[1996] FCA 1134">object of ensuring compliance with the act by deterrence</citphrase>
<citphrase id="cp4.8">cited from="[1996] FCA 1134">effect of undertaking by corporation of a compliance programme agreed with the commission</citphrase>
<citphrase id="cp4.9">cited from="[1996] FCA 1134">difficulties in comparing penalties in other cases with that proposed for the instant case</citphrase>
<citphrase id="cp4.10">cited from="[1996] FCA 1134">importance of the particular market</citphrase>
<citphrase id="cp4.11">cited from="[1996] FCA 1134">significance of identity of corporation to be penalised where it was a member of a group</citphrase>
<citphrase id="cp4.12">cited from="[1996] FCA 1134">significance of whether a corporation has previously contravened</citphrase>
<citphrase id="cp4.13">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="cp4.14">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="cp4.15">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="cp5.0">citing from="[2011] FMCA 349">industrial law</citphrase>
<citphrase id="cp5.1">citing from="[2011] FMCA 349">contravention of industrial agreement</citphrase>
<citphrase id="cp5.2">citing from="[2011] FMCA 349">whether the agreed penalties to be paid by the respondents pursuant to s.719 of the workplace relations act 1996 (cth) and the agreed pecuniary penalties to be paid by the respondents pursuant to s.546 of the fair work act 2009 (cth) are appropriate</citphrase>
<citphrase id="cp5.3">citing from="[2011] FMCA 349">whether the pecuniary penalties should be paid to the applicant.</citphrase>
<citphrase id="cp6.0">citing from="[2011] FMCA 102">industrial law</citphrase>
<citphrase id="cp6.1">citing from="[2011] FMCA 102">fair work</citphrase>
<citphrase id="cp6.2">citing from="[2011] FMCA 102">admitted contraventions of workplace relations act 1996 (cth)</citphrase>
<citphrase id="cp6.3">citing from="[2011] FMCA 102">agreed statement of facts</citphrase>
<citphrase id="cp6.4">citing from="[2011] FMCA 102">agreed penalties and orders</citphrase>
<citphrase id="cp6.5">citing from="[2011] FMCA 102">consideration of appropriate penalties to be imposed.</citphrase>
<citphrase id="cp7.0">citing from="[2010] FCA 1382">industrial law</citphrase>
<citphrase id="cp7.1">citing from="[2010] FCA 1382">penalties</citphrase>
<citphrase id="cp7.2">citing from="[2010] FCA 1382">a single course of conduct</citphrase>
<citphrase id="cp7.3">citing from="[2010] FCA 1382">the totality principle</citphrase>
<citphrase id="cp7.4">citing from="[2010] FCA 1382">relevance of previous contraventions</citphrase>
<citphrase id="cp7.5">citing from="[2010] FCA 1382">punishment and deterrence</citphrase>
<citphrase id="cp7.6">citing from="[2010] FCA 1382">declaratory relief</citphrase>
<citphrase id="cp7.7">citing from="[2010] FCA 1382">pecuniary penalties</citphrase>
<citphrase id="cp8.0">citing from="[2009] FCA 865">industrial law</citphrase>
<citphrase id="cp8.1">citing from="[2009] FCA 865">consideration of a pecuniary penalty to be imposed on three respondent unions in respect of contraventions of s 767(1) and s 768(1) of the workplace relations act 1996 (cth) arising out of entry by officials of the unions to premises at the abbot point coal terminal on 13 february 2009 and entry to those premises by officials of two respondent unions on 5 march 2009</citphrase>
<citphrase id="cp8.2">citing from="[2009] FCA 865">consideration of the criteria to be applied in determining the amount of penalty</citphrase>
<citphrase id="cp8.3">citing from="[2009] FCA 865">consideration of previous contraventions</citphrase>
<citphrase id="cp8.4">citing from="[2009] FCA 865">consideration of the objects of the legislation, the counter-factual, context and circumstances</citphrase>
<citphrase id="cp8.5">citing from="[2009] FCA 865">consideration of whether a pecuniary penalty ought to be paid to the applicant or to the commonwealth</citphrase>
<citphrase id="cp8.6">citing from="[2009] FCA 865">consideration of whether an order for costs ought to be made in favour of the applicant under s 824 of the workplace relations act 1996 (cth)</citphrase>
<citphrase id="cp8.7">citing from="[2009] FCA 865">consideration of the continuing application of that act by operation of the fair work (transitional provisions and consequential amendments) act 2009 (cth)</citphrase>
<citphrase id="cp9.0">citing from="[2009] FMCA 269">industrial law</citphrase>
<citphrase id="cp9.1">citing from="[2009] FMCA 269">civil remedy proceedings</citphrase>
<citphrase id="cp9.2">citing from="[2009] FMCA 269">ohs right of entry</citphrase>
<citphrase id="cp9.3">citing from="[2009] FMCA 269">relevance of lack of provision of details of safety breach</citphrase>
<citphrase id="cp9.4">citing from="[2009] FMCA 269">acting in an "improper manner"</citphrase>
<citphrase id="cp9.5">citing from="[2009] FMCA 269">grounds for "reasonable suspicion"</citphrase>
<citphrase id="cp9.6">citing from="[2009] FMCA 269">penalty considerations.  acts interpretation act 1901 (cth) ss.15aa , 15ab  building and construction industry improvement act 2005 (cth) ss.57 , 73 (1), 73 (4) workplace relations act 1996 (cth) ss.3 , 3 (e), (h), 4 (b), 736 (a)-(c), 747 , 748 , 755 , 756 (1)(b), 758 (1), (3), 760 , 767 (1), (3), (3)(b), 769 (1)(a), (c), (4)</citphrase>
<citphrase id="cp10.0">citing from="[2009] FMCA 265">industrial law</citphrase>
<citphrase id="cp10.1">citing from="[2009] FMCA 265">application for civil penalty</citphrase>
<citphrase id="cp10.2">citing from="[2009] FMCA 265">breach of applicable provisions</citphrase>
<citphrase id="cp10.3">citing from="[2009] FMCA 265">breaches admitted</citphrase>
<citphrase id="cp10.4">citing from="[2009] FMCA 265">agreed penalty</citphrase>
<citphrase id="cp10.5">citing from="[2009] FMCA 265">considerations as to penalty.</citphrase>
</citphrases>
<citances>
<sentence from="[2011] FMCA 349" id="cs0">Neither in NW Frozen Foods [1996] FCA 1134 ; 71 FCR 285 nor in Mobil Oil [2004] FCAFC 72 ; [2004] ATPR 41-993 did the Full Court expand on the meaning of the phrase "permissible range". I consider that the phrase refers to a range which would be permitted by the Court, that is, a range within which the penalty is neither manifestly inadequate nor manifestly excessive. " See also, for example, Standen v Feehan (No 2) [2008] FCA 1574 ; (2008) 177 IR 276 at [10] - [12] ; Construction, Forestry, Mining and Energy Union v Merhis Constructions Pty Ltd (2010) 199 IR 308 at [6]. 6. The question of the appropriate penalty to be imposed is ultimately a matter for the Court.</sentence>
<sentence from="[2011] FMCA 102" id="cs1">Although the parties have agreed upon the orders the court should make and the penalties that it should impose, the court must nonetheless exercise its own discretion and fix what it considers to be the appropriate penalties: Standen v Feehan (No.2) [2008] FCA 1574 ; (2008) 177 IR 276 at [8] --- [13] applying NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 at 290-291 and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72. </sentence>
<sentence from="[2010] FCA 1382" id="cs2">When imposing a penalty for contraventions of Part XA of the Workplace Relations Act pursuant to s 298U in Construction, Forestry, Mining  Energy Union v Coal and Allied Operations Pty Ltd (No 2) [1999] FCA 1714 , 94 IR 231 (" Coal and Allied "), Branson J made the following observations as to some of the considerations to be taken into account:

 [8] The following matters, which are not intended to comprise an exhaustive list, seem to me to be considerations to which the Court may appropriately have regard in determining whether particular conduct calls for the imposition of a penalty, and assuming that it does, the amount of the penalty:
 (a) The circumstances in which the relevant conduct took place (including whether the conduct was undertaken in deliberate defiance or disregard of the Act). (b) Whether the respondent has previously been found to have engaged in conduct in contravention of Pt XA of the Act. (c) Where more than one contravention of Pt XA is involved, whether the various contraventions are properly seen as distinct or whether they arise out of the one course of conduct. (d) The consequences of the conduct found to be in contravention of Pt XA of the Act. (e) The need, in the circumstances, for the protection of industrial freedom of association. (f) The need, in the circumstances, for deterrence.

These principles have since been applied when assessing penalties under other provisions of the Act: e.g., Standen v Feehan (No 2) [2008] FCA 1574 at [14] , 177 IR 276 at 278 to 279 per Lander J. See also: Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union v Thornton Engineering Australia Pty Ltd [2009] FCA 1584 at [21] , 191 IR 315 per North J. </sentence>
<sentence from="[2009] FCA 865" id="cs3">So far as Part 15 of the Act is concerned the only penalty proceeding involving a contravention of the right of entry provisions is Standen v Feehan [2008] FCA 1009 ; (2008) 175 IR 297 per Lander J (as to the contravening conduct) and [2008] FCA 1574 ; (2008) 177 IR 276 (as to the penalty decision). Mr Feehan was an official of the CFMEU although the CFMEU was not a party to the proceeding. Mr Feehan in exercising powers of entry to premises under ss 285B and 285C of the Act intentionally hindered and obstructed a person in contravention of s 285E of the Act. A penalty of $1,300.00 was imposed on Mr Feehan. The maximum penalty was $2,000.00. As to questions of broader principle, Lander J considered at [16] of the penalty decision that punishment played some part in formulating a penalty for a contravention of the right of entry provisions but rehabilitation played no real part. Lander J was dealing with the imposition of a penalty on the individuals. </sentence>
<sentence from="[2009] FMCA 269" id="cs4">[109] (1996) 71 FCR at p.295. [110] [2007] FCA 1080 ; (2007) 166 IR 14 and [2008] FCAFC 8 ; (2008) 165 FCR 560 respectively. Most recently, see also Standen v Feehan (No 2) [2008] FCA 1574 ; (2008) 177 IR 276 ; Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 ; (2008) 177 IR 61 ; Construction, Forestry, Mining and Energy Union v Hadgkiss (2009) 174 FCR 237. AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
 URL: http://www.austlii.edu.au/au/cases/cth/FMCA/2009/269.html

 </sentence>
<sentence from="[2009] FMCA 265" id="cs5">At paragraph [5] of exhibit "R1" the respondents accepted those principles. In Standen v Feehan (No 2) [2008] FCA 1574 at [14] it was said: "14. In CFMEU v Coal and Allied Operations Pty Ltd (No 2) [1999] FCA 1714 ; (1999) 94 IR 231 , Branson J considered the circumstances which might be taken into account when assessing a penalty under s 298U of the Act. She said at [8]: The following matters, which are not intended to comprise an exhaustive list, seem to me to be considerations to which the Court my appropriately have regard in determining whether particular conduct calls for the imposition of a penalty, and assuming that it does, the amount of the penalty: (a) The circumstances in which the relevant conduct took place (including whether the conduct was undertaken in deliberate defiance or disregard of the Act).</sentence>
</citances>
<legistitles>
<title id="l0">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2007] HCA 26">szbyr v minister for immigration and citizenship  immigration</citphrase>
<citphrase id="cp0.1">cited from="[2007] HCA 26">refugees</citphrase>
<citphrase id="cp0.2">cited from="[2007] HCA 26">the appellants were refused a visa under s 36(2) of the migration act 1958 (cth) ("the act ")</citphrase>
<citphrase id="cp0.3">cited from="[2007] HCA 26">the appellants gave a statutory declaration to the refugee review tribunal ("the tribunal")</citphrase>
<citphrase id="cp0.4">cited from="[2007] HCA 26">the tribunal affirmed the decision not to grant a visa partly on the basis of discrepancies between the statutory declaration and the appellants' oral evidence</citphrase>
<citphrase id="cp0.5">cited from="[2007] HCA 26">whether relief was available to the appellants.  immigration</citphrase>
<citphrase id="cp0.6">cited from="[2007] HCA 26">refugees</citphrase>
<citphrase id="cp0.7">cited from="[2007] HCA 26">s 424a of the act , read with s 441a , requires that an applicant be given written notice of particulars of any information that would be a reason or a part of the reason for affirming a decision</citphrase>
<citphrase id="cp0.8">cited from="[2007] HCA 26">whether s 424a applied to the appellants' statutory declaration</citphrase>
<citphrase id="cp0.9">cited from="[2007] HCA 26">temporal scope of s 424a</citphrase>
<citphrase id="cp0.10">cited from="[2007] HCA 26">whether the tribunal breached s 424a</citphrase>
<citphrase id="cp0.11">cited from="[2007] HCA 26">whether the tribunal committed jurisdictional error</citphrase>
<citphrase id="cp0.12">cited from="[2007] HCA 26">meaning of "information"</citphrase>
<citphrase id="cp0.13">cited from="[2007] HCA 26">whether "information" included discrepancies or inadequacies in previously submitted evidence</citphrase>
<citphrase id="cp0.14">cited from="[2007] HCA 26">meaning of "reason, or a part of the reason".  administrative law</citphrase>
<citphrase id="cp0.15">cited from="[2007] HCA 26">constitutional writs</citphrase>
<citphrase id="cp0.16">cited from="[2007] HCA 26">certiorari and mandamus</citphrase>
<citphrase id="cp0.17">cited from="[2007] HCA 26">impact of discretionary considerations governing availability of relief</citphrase>
<citphrase id="cp0.18">cited from="[2007] HCA 26">whether relief should be denied on discretionary grounds for lack of a convention nexus.</citphrase>
<citphrase id="cp1.0">cited from="[2005] FCAFC 118">migration</citphrase>
<citphrase id="cp1.1">cited from="[2005] FCAFC 118">partner (provisional) (class uf) visa</citphrase>
<citphrase id="cp1.2">cited from="[2005] FCAFC 118">appeal from a decision of the federal magistrates court setting aside a decision of the migration review tribunal affirming a decision to refuse a partner visa</citphrase>
<citphrase id="cp1.3">cited from="[2005] FCAFC 118">where both married parties were previously married apparently for immigration reasons</citphrase>
<citphrase id="cp1.4">cited from="[2005] FCAFC 118">where review applicant gave notice under s 361(2) of the migration act 1958 (cth) to obtain oral evidence from nominated witnesses</citphrase>
<citphrase id="cp1.5">cited from="[2005] FCAFC 118">witnesses present but did not give oral evidence in circumstances where tribunal imposed a time limit due to the tribunal's "own commitment"</citphrase>
<citphrase id="cp1.6">cited from="[2005] FCAFC 118">tribunal had no genuine regard to the s 361(2) notice</citphrase>
<citphrase id="cp1.7">cited from="[2005] FCAFC 118">breach of obligation in s 361(3)</citphrase>
<citphrase id="cp1.8">cited from="[2005] FCAFC 118">breach of procedural fairness because of failure to give fair opportunity to present evidence and arguments</citphrase>
<citphrase id="cp1.9">cited from="[2005] FCAFC 118">jurisdictional errors compounded by finding that family and friends engaged in a "web of deceit"</citphrase>
<citphrase id="cp1.10">cited from="[2005] FCAFC 118">where no chance to answer web of deceit finding, the basis for which was not self-evident</citphrase>
<citphrase id="cp1.11">cited from="[2005] FCAFC 118">consideration of the nature of the tribunal's review powers and obligations</citphrase>
<citphrase id="cp1.12">cited from="[2005] FCAFC 118">jurisdictional error found</citphrase>
<citphrase id="cp1.13">cited from="[2005] FCAFC 118">appeal dismissed.</citphrase>
<citphrase id="cp2.0">cited from="[2005] FCA 763">migration</citphrase>
<citphrase id="cp2.1">cited from="[2005] FCA 763">appeal from judgment of a federal magistrate</citphrase>
<citphrase id="cp2.2">cited from="[2005] FCA 763">protection visa application</citphrase>
<citphrase id="cp2.3">cited from="[2005] FCA 763">claim of persecution on account of political opinion and religious belief</citphrase>
<citphrase id="cp2.4">cited from="[2005] FCA 763">refugee review tribunal hearing conducted over two days</citphrase>
<citphrase id="cp2.5">cited from="[2005] FCA 763">failure of witness to attend hearing due to illness</citphrase>
<citphrase id="cp2.6">cited from="[2005] FCA 763">whether refugee review tribunal breached s 424(1) of the migration act 1958 (cth)</citphrase>
<citphrase id="cp2.7">cited from="[2005] FCA 763">whether a breach of s 424(1) constitutes jurisdictional error</citphrase>
<citphrase id="cp2.8">cited from="[2005] FCA 763">whether refugee review tribunal failed to take into account relevant material or took into account irrelevant material</citphrase>
<citphrase id="cp2.9">cited from="[2005] FCA 763">whether refugee review tribunal failed to afford the appellant procedural fairness.</citphrase>
<citphrase id="cp4.0">cited from="[2003] HCA 30">re minister for immigration and multicultural affairs; ex parte applicant s20/2002  appellant s106/2002 v minister for immigration and multicultural affairs  immigration</citphrase>
<citphrase id="cp4.1">cited from="[2003] HCA 30">refugees</citphrase>
<citphrase id="cp4.2">cited from="[2003] HCA 30">temporary protection visas</citphrase>
<citphrase id="cp4.3">cited from="[2003] HCA 30">application for certiorari, prohibition and mandamus under s 75(v) of the constitution</citphrase>
<citphrase id="cp4.4">cited from="[2003] HCA 30">where refugee review tribunal found that applicant was an unreliable witness and discounted evidence said to be corroborative</citphrase>
<citphrase id="cp4.5">cited from="[2003] HCA 30">whether tribunal's decision was "irrational, illogical and not based upon findings or inferences of fact supported by logical grounds"</citphrase>
<citphrase id="cp4.6">cited from="[2003] HCA 30">whether tribunal's decision was affected by actual bias or by a reasonable apprehension of bias</citphrase>
<citphrase id="cp4.7">cited from="[2003] HCA 30">whether tribunal's decision was vitiated by jurisdictional error</citphrase>
<citphrase id="cp4.8">cited from="[2003] HCA 30">distinction between discretionary decisions and decisions involving the finding of facts essential to the exercise of jurisdiction</citphrase>
<citphrase id="cp4.9">cited from="[2003] HCA 30">whether tribunal's decision evidenced an erroneous approach to the finding of jurisdictional facts.  constitutional law</citphrase>
<citphrase id="cp4.10">cited from="[2003] HCA 30">section 75(v) of the constitution</citphrase>
<citphrase id="cp4.11">cited from="[2003] HCA 30">review of administrative decisions</citphrase>
<citphrase id="cp4.12">cited from="[2003] HCA 30">jurisdictional error</citphrase>
<citphrase id="cp4.13">cited from="[2003] HCA 30">bias</citphrase>
<citphrase id="cp4.14">cited from="[2003] HCA 30">extent to which the content of the constitutional writs is affected by common law developments in administrative law</citphrase>
<citphrase id="cp4.15">cited from="[2003] HCA 30">availability of constitutional writs in proceedings that include an appeal concerning related issues.  administrative law</citphrase>
<citphrase id="cp4.16">cited from="[2003] HCA 30">judicial review</citphrase>
<citphrase id="cp4.17">cited from="[2003] HCA 30">whether tribunal's decision was "irrational, illogical and not based upon findings or inferences of fact supported by logical grounds"</citphrase>
<citphrase id="cp4.18">cited from="[2003] HCA 30">unavailability of review of factual or evidentiary merits</citphrase>
<citphrase id="cp4.19">cited from="[2003] HCA 30">whether relief available under migration act 1958 (cth) ("the act ") or under the constitution , s 75(v)</citphrase>
<citphrase id="cp4.20">cited from="[2003] HCA 30">whether tribunal had no jurisdiction to make the decision</citphrase>
<citphrase id="cp4.21">cited from="[2003] HCA 30">whether the decision was not authorised by the act</citphrase>
<citphrase id="cp4.22">cited from="[2003] HCA 30">whether the decision was marred by error of law</citphrase>
<citphrase id="cp4.23">cited from="[2003] HCA 30">whether the decision was so unreasonable that no reasonable tribunal would have made it.</citphrase>
<citphrase id="cp6.0">cited from="[1990] HCA 21">administrative law</citphrase>
<citphrase id="cp6.1">cited from="[1990] HCA 21">natural justice</citphrase>
<citphrase id="cp6.2">cited from="[1990] HCA 21">appointment of judicial officers</citphrase>
<citphrase id="cp6.3">cited from="[1990] HCA 21">abolition of one set of inferior courts and substitution of another</citphrase>
<citphrase id="cp6.4">cited from="[1990] HCA 21">policy to appoint stipendiary magistrates of former courts as magistrates of new courts unless unfit for judicial office</citphrase>
<citphrase id="cp6.5">cited from="[1990] HCA 21">decision not to appoint former stipendiary magistrate set aside for failure to accord natural justice</citphrase>
<citphrase id="cp6.6">cited from="[1990] HCA 21">reconsideration of case</citphrase>
<citphrase id="cp6.7">cited from="[1990] HCA 21">change of appointment policy</citphrase>
<citphrase id="cp6.8">cited from="[1990] HCA 21">applicants to be judged on merit</citphrase>
<citphrase id="cp6.9">cited from="[1990] HCA 21">whether former stipendiary magistrate entitled to reconsideration of application on basis of former or current policy</citphrase>
<citphrase id="cp6.10">cited from="[1990] HCA 21">local courts act 1982 (n.s.w.), s. 12.</citphrase>
<citphrase id="cp7.0">citing from="[2009] FMCA 1290">migration</citphrase>
<citphrase id="cp7.1">citing from="[2009] FMCA 1290">review of decision of refugee review tribunal</citphrase>
<citphrase id="cp7.2">citing from="[2009] FMCA 1290">a failure to comply with s.420 not jurisdictional error</citphrase>
<citphrase id="cp7.3">citing from="[2009] FMCA 1290">findings open to tribunal on what was before it</citphrase>
<citphrase id="cp7.4">citing from="[2009] FMCA 1290">applicant seeking impermissible merits review</citphrase>
<citphrase id="cp7.5">citing from="[2009] FMCA 1290">tribunal complied with s.424a</citphrase>
<citphrase id="cp7.6">citing from="[2009] FMCA 1290">tribunal put dispositive issue to applicant pursuant to s.425</citphrase>
<citphrase id="cp7.7">citing from="[2009] FMCA 1290">weight attributed to country information a matter for the tribunal</citphrase>
<citphrase id="cp7.8">citing from="[2009] FMCA 1290">no jurisdictional error</citphrase>
<citphrase id="cp7.9">citing from="[2009] FMCA 1290">application dismissed.</citphrase>
<citphrase id="cp8.0">citing from="[2009] FMCA 1140">migration</citphrase>
<citphrase id="cp8.1">citing from="[2009] FMCA 1140">rrt decision</citphrase>
<citphrase id="cp8.2">citing from="[2009] FMCA 1140">lebanese applicant claiming fear of persecution by hezbollah</citphrase>
<citphrase id="cp8.3">citing from="[2009] FMCA 1140">disbelieved by tribunal</citphrase>
<citphrase id="cp8.4">citing from="[2009] FMCA 1140">no breach of s.424(2)</citphrase>
<citphrase id="cp8.5">citing from="[2009] FMCA 1140">findings open on the evidence</citphrase>
<citphrase id="cp8.6">citing from="[2009] FMCA 1140">no general duty on tribunal to obtain translations or make inquiries</citphrase>
<citphrase id="cp8.7">citing from="[2009] FMCA 1140">no jurisdictional error established</citphrase>
<citphrase id="cp8.8">citing from="[2009] FMCA 1140">application dismissed.</citphrase>
<citphrase id="cp9.0">citing from="[2009] FMCA 708">migration</citphrase>
<citphrase id="cp9.1">citing from="[2009] FMCA 708">review of decision of refugee review tribunal</citphrase>
<citphrase id="cp9.2">citing from="[2009] FMCA 708">no s.424 letter</citphrase>
<citphrase id="cp9.3">citing from="[2009] FMCA 708">tribunal complied with s.425</citphrase>
<citphrase id="cp9.4">citing from="[2009] FMCA 708">tribunal complied with s.424aa</citphrase>
<citphrase id="cp9.5">citing from="[2009] FMCA 708">findings were open to tribunal on what was before it</citphrase>
<citphrase id="cp9.6">citing from="[2009] FMCA 708">applicant seeking impermissible merits review</citphrase>
<citphrase id="cp9.7">citing from="[2009] FMCA 708">tribunal turned its mind to the task it was jurisdictionally required to consider</citphrase>
<citphrase id="cp9.8">citing from="[2009] FMCA 708">country information fell within exception in s.424a(3)(a)</citphrase>
<citphrase id="cp9.9">citing from="[2009] FMCA 708">tribunal applied correct tests</citphrase>
<citphrase id="cp9.10">citing from="[2009] FMCA 708">tribunal considered all integers of applicant's claims and claim arising from evidence</citphrase>
<citphrase id="cp9.11">citing from="[2009] FMCA 708">no bias</citphrase>
<citphrase id="cp9.12">citing from="[2009] FMCA 708">no jurisdictional error</citphrase>
<citphrase id="cp9.13">citing from="[2009] FMCA 708">application dismissed.</citphrase>
<citphrase id="cp10.0">citing from="[2009] FMCA 608">migration</citphrase>
<citphrase id="cp10.1">citing from="[2009] FMCA 608">review of decision of refugee review tribunal</citphrase>
<citphrase id="cp10.2">citing from="[2009] FMCA 608">whether state protection is relevant to determining well-founded fear</citphrase>
<citphrase id="cp10.3">citing from="[2009] FMCA 608">relevant test in s152</citphrase>
<citphrase id="cp10.4">citing from="[2009] FMCA 608">whether tribunal properly applied test in s152 in assessing applicant's claims</citphrase>
<citphrase id="cp10.5">citing from="[2009] FMCA 608">tribunal properly applied test</citphrase>
<citphrase id="cp10.6">citing from="[2009] FMCA 608">tribunal made findings open to it</citphrase>
<citphrase id="cp10.7">citing from="[2009] FMCA 608">tribunal considered all claims</citphrase>
<citphrase id="cp10.8">citing from="[2009] FMCA 608">no jurisdictional error</citphrase>
<citphrase id="cp10.9">citing from="[2009] FMCA 608">application dismissed.</citphrase>
<citphrase id="cp11.0">citing from="[2009] FMCA 630">migration</citphrase>
<citphrase id="cp11.1">citing from="[2009] FMCA 630">rrt decision</citphrase>
<citphrase id="cp11.2">citing from="[2009] FMCA 630">lebanese christian affected by conflict between muslim factions</citphrase>
<citphrase id="cp11.3">citing from="[2009] FMCA 630">tribunal found no convention nexus to harms feared</citphrase>
<citphrase id="cp11.4">citing from="[2009] FMCA 630">no procedural error in refusal of more time to present evidence</citphrase>
<citphrase id="cp11.5">citing from="[2009] FMCA 630">no material mistranslations shown</citphrase>
<citphrase id="cp11.6">citing from="[2009] FMCA 630">no other jurisdictional error found</citphrase>
<citphrase id="cp11.7">citing from="[2009] FMCA 630">application dismissed.</citphrase>
<citphrase id="cp12.0">citing from="[2008] FMCA 407">migration</citphrase>
<citphrase id="cp12.1">citing from="[2008] FMCA 407">review of decision of refugee review tribunal</citphrase>
<citphrase id="cp12.2">citing from="[2008] FMCA 407">adverse credibility finding</citphrase>
<citphrase id="cp12.3">citing from="[2008] FMCA 407">claimed conversion to jehovah's witnesses</citphrase>
<citphrase id="cp12.4">citing from="[2008] FMCA 407">tribunal acting on information that is 'public'</citphrase>
<citphrase id="cp12.5">citing from="[2008] FMCA 407">tribunal decision based on evidence before it</citphrase>
<citphrase id="cp12.6">citing from="[2008] FMCA 407">no jurisdictional error</citphrase>
<citphrase id="cp12.7">citing from="[2008] FMCA 407">application dismissed.</citphrase>
</citphrases>
<citances>
<sentence from="[2009] FMCA 1290" id="cs0">The Minister submits that even if some factual finding made by the Tribunal contained some error of fact, this in itself does not constitute jurisdictional error (Abebe v The Commonwealth (1999) 197 CLR 510 ; [1999] HCA 14 at [137] , and see also SZJHR v Minister for Immigration and Citizenship [2007] FCA 1901 at [45] ). </sentence>
<sentence from="[2009] FMCA 1140" id="cs1">I am not persuaded that the Tribunal's consideration of Mr Laba-Sarkis' statement reveals any jurisdictional error. The Tribunal was not generally obliged to seek additional evidence from Mr Laba-Sarkis, nor make further inquiries of him in the absence of any exceptional circumstance (see Minister for Immigration  Citizenship v SZIAI [2009] HCA 39 at [1] and [25]). I am unable to identify any error of discretion by the Tribunal in relation to its powers of inquiry, including its discretion to take evidence from proposed witnesses (see SZJHR v Minister for Immigration  Citizenship [2007] FCA 1901). In my opinion, it was open to the Tribunal to form the view that Mr Laba-Sarkis' written statement did not overcome the Tribunal's concerns with the applicant's own evidence. </sentence>
<sentence from="[2009] FMCA 708" id="cs2">As was said in SZJHR v Minister for Immigration and Citizenship [2007] FCA 1901 at [45] : "An error of fact made by the Tribunal when exercising its jurisdiction is not a jurisdictional error. An error of that kind does not provide this Court with jurisdiction to quash the decision: Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at [137] . " </sentence>
<sentence from="[2009] FMCA 608" id="cs3">As was said in SZJHR v Minister for Immigration and Citizenship [2007] FCA 1901 at [45] : "An error of fact made by the Tribunal when exercising its jurisdiction is not a jurisdictional error. An error of that kind does not provide this Court with jurisdiction to quash the decision: Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at [137] . " </sentence>
<sentence from="[2009] FMCA 630" id="cs4">In relation to the Australian witness, the Tribunal had a discretion not to accede to a request that it take evidence from a witness (see s.426(3) and authorities including Minister for Immigration  Multicultural  Indigenous Affairs v Katisat [2005] FCA 1908 and SZJHR v Minister for Immigration [2007] FCA 1901). I am not persuaded that there was any error in its exercise of this discretion, giving rise to jurisdictional error affecting its substantive decision. </sentence>
<sentence from="[2008] FMCA 407" id="cs5">The Tribunal's findings in relation to the applicant husband's conversion to Christianity in Australia was that it would disregard this conduct because of its finding that this conduct was "purely intended to further" the protection visa application. This finding was made in the exercise of the Tribunal's jurisdiction provided by the relevant statute. In light of this, even if the Tribunal wrongly assumed that Jehovah's Witnesses required their adherents to reject non-Jehovah's Witness spouses and family, this was not a jurisdictional error but an error made within the jurisdiction. As was said in SZJHR v Minister for Immigration and Citizenship [2007] FC A 1901 at [45] : "An error of fact made by the Tribunal when exercising its jurisdiction is not a jurisdictional error. An error of that kind does not provide this Court with jurisdiction to quash the decision: Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at [137] . " </sentence>
</citances>
<legistitles>
<title id="l0">MIGRATION ACT 1958 </title>
<title id="l1">MIGRATION ACT 1958 - SECT 5 Interpretation</title>
<title id="l2">MIGRATION ACT 1958 - SECT 424A Information and invitation given in writing by Tribunal</title>
<title id="l3">MIGRATION ACT 1958 - SECT 426 Applicant may request Refugee Review Tribunal to call witnesses</title>
<title id="l4">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2004] HCA 26">commissioner of taxation v hart  income tax</citphrase>
<citphrase id="cp0.1">cited from="[2004] HCA 26">avoidance of tax</citphrase>
<citphrase id="cp0.2">cited from="[2004] HCA 26">tax benefit under income tax assessment act 1936 (cth)</citphrase>
<citphrase id="cp0.3">cited from="[2004] HCA 26">whether scheme entered into for the dominant purpose of obtaining a tax benefit</citphrase>
<citphrase id="cp0.4">cited from="[2004] HCA 26">meaning of "scheme"</citphrase>
<citphrase id="cp0.5">cited from="[2004] HCA 26">split loan facility</citphrase>
<citphrase id="cp0.6">cited from="[2004] HCA 26">where money borrowed in part to purchase a principal place of residence and in part to refinance investment property used to produce assessable income</citphrase>
<citphrase id="cp0.7">cited from="[2004] HCA 26">where expenditure in relation to producing assessable income deductible</citphrase>
<citphrase id="cp0.8">cited from="[2004] HCA 26">where repayments on loan applied solely in satisfaction of that part of the loan not used to produce assessable income.</citphrase>
<citphrase id="cp1.0">cited from="[1990] HCA 3">income tax</citphrase>
<citphrase id="cp1.1">cited from="[1990] HCA 3">assessment</citphrase>
<citphrase id="cp1.2">cited from="[1990] HCA 3">appeal</citphrase>
<citphrase id="cp1.3">cited from="[1990] HCA 3">whether assessment excessive</citphrase>
<citphrase id="cp1.4">cited from="[1990] HCA 3">burden of proof on taxpayer</citphrase>
<citphrase id="cp1.5">cited from="[1990] HCA 3">error by commissioner in adopting basis of assessment</citphrase>
<citphrase id="cp1.6">cited from="[1990] HCA 3">whether need to establish that tax assessed exceeds actual liability</citphrase>
<citphrase id="cp1.7">cited from="[1990] HCA 3">income tax assessment act 1936 (cth), ss. 166 , 167 (b), 177 (1), 190(b).</citphrase>
<citphrase id="cp2.0">cited from="[1979] HCA 18">income tax (cth)</citphrase>
<citphrase id="cp2.1">cited from="[1979] HCA 18">assessable income</citphrase>
<citphrase id="cp2.2">cited from="[1979] HCA 18">profit arising from the sale of property acquired for purposes of profit-making by sale</citphrase>
<citphrase id="cp2.3">cited from="[1979] HCA 18">acquisition of land by public authority from taxpayer</citphrase>
<citphrase id="cp2.4">cited from="[1979] HCA 18">evidence of taxpayer of purpose of acquisition not accepted</citphrase>
<citphrase id="cp2.5">cited from="[1979] HCA 18">function of appellate court</citphrase>
<citphrase id="cp2.6">cited from="[1979] HCA 18">onus of proof of purpose</citphrase>
<citphrase id="cp2.7">cited from="[1979] HCA 18">income tax assessment act 1936 (cth), ss. 26 (a), 190 (b).</citphrase>
<citphrase id="cp3.0">cited from="[1975] HCA 54">income tax (cth)</citphrase>
<citphrase id="cp3.1">cited from="[1975] HCA 54">assessable income</citphrase>
<citphrase id="cp3.2">cited from="[1975] HCA 54">profit arising from sale of property acquired for the purpose of profit-making by sale</citphrase>
<citphrase id="cp3.3">cited from="[1975] HCA 54">compensation paid upon compulsory acquisition of land exceeding purchase price</citphrase>
<citphrase id="cp3.4">cited from="[1975] HCA 54">evidence of taxpayer as to purpose of acquisition of property not accepted</citphrase>
<citphrase id="cp3.5">cited from="[1975] HCA 54">absence of other evidence of purpose of acquisition of property</citphrase>
<citphrase id="cp3.6">cited from="[1975] HCA 54">income tax assessment act 1936-1969 (cth), ss.26 (a), 190 (b).</citphrase>
<citphrase id="cp4.0">citing from="[2011] FCAFC 49">income tax</citphrase>
<citphrase id="cp4.1">citing from="[2011] FCAFC 49">group of companies</citphrase>
<citphrase id="cp4.2">citing from="[2011] FCAFC 49">finance group within larger group</citphrase>
<citphrase id="cp4.3">citing from="[2011] FCAFC 49">intra-group loans</citphrase>
<citphrase id="cp4.4">citing from="[2011] FCAFC 49">unpaid principal and interest written off as bad</citphrase>
<citphrase id="cp4.5">citing from="[2011] FCAFC 49">whether unpaid principal written off as bad allowable deductions under ss 25</citphrase>
<citphrase id="cp4.6">citing from="[2011] FCAFC 49">35 (1)(b) or 8-1 of the income tax assessment act 1997 (cth)</citphrase>
<citphrase id="cp4.7">citing from="[2011] FCAFC 49">whether loans made by lender in the ordinary course of a business of lending money</citphrase>
<citphrase id="cp4.8">citing from="[2011] FCAFC 49">whether business of lending money had ceased in respect of loans made after a certain date</citphrase>
<citphrase id="cp4.9">citing from="[2011] FCAFC 49">whether unpaid interest written off as bad allowable deductions under ss 25</citphrase>
<citphrase id="cp4.10">citing from="[2011] FCAFC 49">35 (1)(a) or 8-1</citphrase>
<citphrase id="cp4.11">citing from="[2011] FCAFC 49">whether unpaid interest written off as bad properly brought to account as assessable income in year in which it accrued</citphrase>
<citphrase id="cp4.12">citing from="[2011] FCAFC 49">whether cash or accruals basis of accounting appropriate.  income tax</citphrase>
<citphrase id="cp4.13">citing from="[2011] FCAFC 49">whether interest on intra-group loans allowable deductions under s 8-1</citphrase>
<citphrase id="cp4.14">citing from="[2011] FCAFC 49">whether incurred in carrying on business for the purpose of producing assessable income within s 8-1(1)(b)</citphrase>
<citphrase id="cp4.15">citing from="[2011] FCAFC 49">to be determined objectively by reference to the relationship between what the expenditure is for and the taxpayer's undertaking or business</citphrase>
<citphrase id="cp4.16">citing from="[2011] FCAFC 49">subjective motive not relevant in a case such as this</citphrase>
<citphrase id="cp4.17">citing from="[2011] FCAFC 49">whether an outgoing of a capital nature within s 8-1(2)(a).  income tax</citphrase>
<citphrase id="cp4.18">citing from="[2011] FCAFC 49">part iva of the income tax assessment act 1936 (cth)</citphrase>
<citphrase id="cp4.19">citing from="[2011] FCAFC 49">whether a 'scheme'</citphrase>
<citphrase id="cp4.20">citing from="[2011] FCAFC 49">whether a tax benefit obtained in connection with a scheme</citphrase>
<citphrase id="cp4.21">citing from="[2011] FCAFC 49">amount of tax benefit so obtained a function of the counterfactual</citphrase>
<citphrase id="cp4.22">citing from="[2011] FCAFC 49">the counterfactual must be a prediction that is sufficiently reliable for it to be regarded as reasonable</citphrase>
<citphrase id="cp4.23">citing from="[2011] FCAFC 49">whether purpose of obtaining a tax benefit can be attributed to a person or persons who entered into or carried out the scheme as the dominant purpose of that person or those persons</citphrase>
<citphrase id="cp4.24">citing from="[2011] FCAFC 49">relevance of other possibilities which the taxpayer might have undertaken if the scheme had not been entered into in determining whether such a purpose should be attributed.  held: appeals dismissed.   legislation: income tax assessment act 1997 (cth) ss 25</citphrase>
<citphrase id="cp4.25">citing from="[2011] FCAFC 49">35 (1)(a), 25</citphrase>
<citphrase id="cp4.26">citing from="[2011] FCAFC 49">35 (1)(b), 8-1</citphrase>
<citphrase id="cp5.0">citing from="[2010] FCAFC 134">taxation</citphrase>
<citphrase id="cp5.1">citing from="[2010] FCAFC 134">capital gains tax</citphrase>
<citphrase id="cp5.2">citing from="[2010] FCAFC 134">scrip-for-scrip roll-over relief under subdivision 124-m of the income tax assessment act 1997 (cth)</citphrase>
<citphrase id="cp5.3">citing from="[2010] FCAFC 134">whether the parties to the transaction dealt with each other "at arm's length".  taxation</citphrase>
<citphrase id="cp5.4">citing from="[2010] FCAFC 134">capital gains tax</citphrase>
<citphrase id="cp5.5">citing from="[2010] FCAFC 134">part iva of the income tax assessment act 1936 (cth)</citphrase>
<citphrase id="cp5.6">citing from="[2010] FCAFC 134">whether the respondent obtained a "tax benefit" in connection with the scheme</citphrase>
<citphrase id="cp5.7">citing from="[2010] FCAFC 134">identification of the alternative postulate.</citphrase>
<citphrase id="cp6.0">citing from="[2010] FCAFC 94">administrative law</citphrase>
<citphrase id="cp6.1">citing from="[2010] FCAFC 94">appeal under s 44 of the administrative appeals tribunal act 1975 (cth)</citphrase>
<citphrase id="cp6.2">citing from="[2010] FCAFC 94">whether appeal was "on a question of law". taxation</citphrase>
<citphrase id="cp6.3">citing from="[2010] FCAFC 94">part iva of the income tax assessment act 1936 (cth)</citphrase>
<citphrase id="cp6.4">citing from="[2010] FCAFC 94">establishment of an employee welfare fund for superannuation contributions</citphrase>
<citphrase id="cp6.5">citing from="[2010] FCAFC 94">whether taxpayer obtained a tax benefit in connection with the scheme</citphrase>
<citphrase id="cp6.6">citing from="[2010] FCAFC 94">amount of tax benefit</citphrase>
<citphrase id="cp6.7">citing from="[2010] FCAFC 94">identification of the alternative postulate</citphrase>
<citphrase id="cp6.8">citing from="[2010] FCAFC 94">ability of taxpayer to challenge the validity of commissioner's assessment.</citphrase>
<citphrase id="cp7.0">citing from="[2008] FCA 37">taxation</citphrase>
<citphrase id="cp7.1">citing from="[2008] FCA 37">applications for summary judgment by applicant taxpayer</citphrase>
<citphrase id="cp7.2">citing from="[2008] FCA 37">whether original assessment is invalidated and rendered excessive by an amended assessment</citphrase>
<citphrase id="cp7.3">citing from="[2008] FCA 37">role of appeal statement</citphrase>
<citphrase id="cp7.4">citing from="[2008] FCA 37">whether commissioner's appeal statement reveals a fundamental flaw that is not capable of being cured</citphrase>
<citphrase id="cp7.5">citing from="[2008] FCA 37">whether arguable that applicant received a gst benefit from any identified scheme</citphrase>
<citphrase id="cp7.6">citing from="[2008] FCA 37">whether any gst benefit necessarily attributable to the making of a choice, election or application practice and procedure</citphrase>
<citphrase id="cp7.7">citing from="[2008] FCA 37">application for summary judgment by party that bears the burden of proof</citphrase>
</citphrases>
<citances>
<sentence from="[2011] FCAFC 49" id="cs0">The following general propositions can be stated as to the analysis required to establish the relevant counterfactual: Objective prediction

 (1) The focus of s 177C is the identification of an activity --- the prediction of events that would have or might reasonably have expected to have taken place in the absence of the scheme: Trail Bros at [47]; AXA Asia Pacific Holdings at [131]. (2) In the case of a deduction, s 177C(1)(b) provides that it is an objective inquiry as to what would have been allowed or might reasonably be expected to have been allowed as a deduction had the scheme not been entered into or carried out: Epov v Federal Commissioner of Taxation [2007] FCA 34 ; (2007) 65 ATR 399 at [62] ; Peabody at 385 --- 386; Trail Bros at [24]. It is an objective fact whether a taxpayer obtained a tax benefit in relation to a scheme to which Pt IVA applies: Peabody at 382; Hart at [37]; Trail Bro s at [23]; AXA Asia Pacific Holdings at [126]. (3) When predicting the events which would or might have taken place, that question is assessed on the assumption that the scheme had not been entered into or carried out: Federal Commissioner of Taxation v Lenzo [2008] FCAFC 50 ; (2008) 167 FCR 255 at [121] .</sentence>
<sentence from="[2010] FCAFC 134" id="cs1">145 Finally, the Commissioner submitted that the trial judge erred in failing to consider the "putative purpose" of the scheme. The submission is without foundation and must be rejected. First, there was no factual finding by the trial judge that the "putative purpose" of the scheme was to attract the benefit of the scrip-for-scrip roll-over relief. Secondly, Counsel for the Commissioner conceded that this submission contradicted his earlier submission concerning the use of subjective evidence (see [139] and [140] above). As a result, the Commissioner stated that this was an alternative submission. Looking to the "putative purpose" of the scheme is not something contemplated by s 177C(1)(a) and is contrary to the notion that the inquiry be one based on objective fact: Epov [2007] FCA 34 ; 65 ATR 399 at [62] and Peabody [1994] HCA 43 ; 181 CLR 359 at 385-6. 127 In the case of an amount being included in the assessable income of a taxpayer, s 177C(1)(a) provides that it is an objective inquiry as to what would have been included or might reasonably be expected to have been included in the assessable income had the "scheme" not been entered into or carried out: Epov v Federal Commissioner of Taxation [2007] FCA 34 ; (2007) 65 ATR 399 at [62] and Peabody [1994] HCA 43 ; 181 CLR 359 at 385-6. </sentence>
<sentence from="[2010] FCAFC 94" id="cs2">24 In the case of a deduction, s 177C(1)(b) provides that it is an objective inquiry as to what would have been allowed or might reasonably be expected to have been allowed as a deduction had the "scheme" not been entered into or carried out: Epov v Federal Commissioner of Taxation [2007] FCA 34 ; (2007) 65 ATR 399 at [62] and Peabody [1994] HCA 43 ; 181 CLR 359 at 385 --- 386. </sentence>
<sentence from="[2008] FCA 37" id="cs3">17 The applicant submits that it is quite clear that it did not get a "GST benefit" from any scheme that has been or might be identified. An entity only gets a GST benefit if the amount of GST payable by it is, or could reasonably be expected to be, smaller than it would be apart from the scheme or a part of the scheme (s 165-10(1)(a)). That requires adopting a hypothesis as to what would have occurred had the scheme not been entered into. It is submitted that the hypothesis must be reasonable and based upon the evidence ( Federal Commissioner of Taxation v Peabody [1994] HCA 43 ; (1994) 181 CLR 359 at 385; Epov v Federal Commissioner of Taxation [2007] FCA 34 ; (2007) 65 ATR 399 at 412). It is submitted for the applicant that no such hypothesis has been or could be adopted here.</sentence>
</citances>
<legistitles>
<title id="l0">INCOME TAX ASSESSMENT ACT 1936 </title>
<title id="l1">INCOME TAX ASSESSMENT ACT 1936 - SECT 44 Dividends</title>
<title id="l2">TAXATION ADMINISTRATION ACT 1953 </title>
<title id="l3">TAXATION ADMINISTRATION ACT 1953 - SECT 14ZZO Grounds of objection and burden of proof</title>
<title id="l4">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp2.0">citing from="[2011] FMCA 614">migration</citphrase>
<citphrase id="cp2.1">citing from="[2011] FMCA 614">practice and procedure</citphrase>
<citphrase id="cp2.2">citing from="[2011] FMCA 614">application to set aside judgment dismissing application for judicial review by reason of failure of applicant to appear at scheduled hearing</citphrase>
<citphrase id="cp2.3">citing from="[2011] FMCA 614">explanation for non appearance</citphrase>
<citphrase id="cp2.4">citing from="[2011] FMCA 614">whether applicant's application for judicial review has any, or any reasonable, prospects of success</citphrase>
<citphrase id="cp2.5">citing from="[2011] FMCA 614">whether the decision of the refugee review tribunal is affected by jurisdictional error.</citphrase>
<citphrase id="cp3.0">citing from="[2011] FMCA 415">migration</citphrase>
<citphrase id="cp3.1">citing from="[2011] FMCA 415">failure by the applicant to attend scheduled hearing</citphrase>
<citphrase id="cp3.2">citing from="[2011] FMCA 415">whether medical certificate provided in support of adjournment was sufficient</citphrase>
<citphrase id="cp3.3">citing from="[2011] FMCA 415">whether proceedings should be dismissed without further notice.</citphrase>
<citphrase id="cp4.0">citing from="[2008] FMCA 1729">migration</citphrase>
<citphrase id="cp4.1">citing from="[2008] FMCA 1729">application to reinstate</citphrase>
<citphrase id="cp4.2">citing from="[2008] FMCA 1729">non appearance at original hearing on alleged medical grounds</citphrase>
<citphrase id="cp4.3">citing from="[2008] FMCA 1729">medical certificate deficient</citphrase>
<citphrase id="cp4.4">citing from="[2008] FMCA 1729">sufficient explanation for non attendance no shown</citphrase>
<citphrase id="cp4.5">citing from="[2008] FMCA 1729">no arguable case</citphrase>
<citphrase id="cp4.6">citing from="[2008] FMCA 1729">no useful purpose in reinstating</citphrase>
<citphrase id="cp4.7">citing from="[2008] FMCA 1729">bias not shown</citphrase>
<citphrase id="cp4.8">citing from="[2008] FMCA 1729">application dismissed.</citphrase>
<citphrase id="cp5.0">citing from="[2007] FMCA 1974">migration</citphrase>
<citphrase id="cp5.1">citing from="[2007] FMCA 1974">medical certificate</citphrase>
<citphrase id="cp5.2">citing from="[2007] FMCA 1974">no explanation of why medical condition would prevent applicant from attending court and participating effectively in the hearing</citphrase>
<citphrase id="cp5.3">citing from="[2007] FMCA 1974">adjournment refused</citphrase>
<citphrase id="cp5.4">citing from="[2007] FMCA 1974">failure to appear before the tribunal after s.425 invitation</citphrase>
<citphrase id="cp5.5">citing from="[2007] FMCA 1974">rejection inevitable consequence.</citphrase>
<citphrase id="cp6.0">citing from="[2007] FCA 385">procedure</citphrase>
<citphrase id="cp6.1">citing from="[2007] FCA 385">notice of motion to set aside order dismissing appeal where appellant failed to appear</citphrase>
<citphrase id="cp6.2">citing from="[2007] FCA 385">sufficiency of explanation for failure to appear</citphrase>
<citphrase id="cp6.3">citing from="[2007] FCA 385">whether arguable case</citphrase>
<citphrase id="cp7.0">citing from="[2006] FCA 1688">abuse of process</citphrase>
<citphrase id="cp7.1">citing from="[2006] FCA 1688">proceedings instituted by applicant under part ivc of the taxation administration act 1953 (cth)</citphrase>
<citphrase id="cp7.2">citing from="[2006] FCA 1688">applicant filed amended application and amended statement of claim alleging fraud and improper conduct of commissioner and officers in relation to the issuing of assessment notices</citphrase>
<citphrase id="cp7.3">citing from="[2006] FCA 1688">same issues raised and determined adversely to applicant in proceedings in state courts</citphrase>
<citphrase id="cp7.4">citing from="[2006] FCA 1688">application by commissioner for summary dismissal of amended application and amended statement of claim held</citphrase>
<citphrase id="cp7.5">citing from="[2006] FCA 1688">amended application and amended statement of claim dismissed</citphrase>
</citphrases>
<citances>
<sentence from="[2011] FMCA 614" id="cs0">The medical certificate is quite unsatisfactory. It does not address the critical question of whether, and if so why, the medical condition would prevent the applicant from travelling to Court and participating effectively in a Court hearing. Indeed, the certificate makes no mention of the applicant's obligation to attend Court this morning and to suggest that she is unfit to do so for any specified and identified medical condition (See MZXJN v Minister for Immigration  Multicultural Affairs [2006] FCA 1624 ; NAKX v Minister for Immigration and Multicultural  Indigenous Affairs [2003] FCA 1559). 13. In the circumstances, I am not satisfied that Exhibit 2R satisfactorily excuses the applicant from attendance at Court this morning.</sentence>
<sentence from="[2011] FMCA 415" id="cs1">There has been no communication received by this Court from the applicant seeking an adjournment of today's scheduled hearing for any reason. The medical certificate is quite unsatisfactory. It does not address the critical question of whether, and if so why, the medical condition would prevent the applicant from travelling to Court and participating effectively in a Court hearing. Indeed, the certificate makes no mention of the applicant's obligation to attend Court this morning and to suggest that she is unfit to do so for any specified and identified medical condition (See MZXJN v Minister for Immigration  Multicultural Affairs [2006] FCA 1624 ; NAKX v Minister for Immigration and Multicultural  Indigenous Affairs [2003] FCA 1559). </sentence>
<sentence from="[2008] FMCA 1729" id="cs2">The same approach was adopted by Justice Middleton in MZXJN v Minister for Immigration  Multicultural Affairs [2006] FCA 1624 at paragraph 13. His Honour followed the decision in NAKX and dismissed the appeal with costs. </sentence>
<sentence from="[2007] FMCA 1974" id="cs3">The same approach was adopted by Middleton J in the case of MZXJN v Minister for Immigration and Multicultural Affairs [2006] FCA 1624 at [13] . Also, in NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17 , the Full Court of the Federal Court of Australia observed in that case that the medical certificate does not identify the 'medical condition' or explain why it would prevent the appellant from participating effectively in a hearing...
The Full Court of the Federal Court of Australia refused to grant an adjournment. </sentence>
<sentence from="[2007] FCA 385" id="cs4">2 On this application I need to consider two matters: (a) whether the applicant has an arguable case; and (b) whether the applicant has provided a satisfactory explanation for non-attendance. I refer generally to the discussion in SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 per Jacobson J. The background to this application and the applicant's grounds of appeal filed on 18 August 2006 are set out in my reasons for judgment previously delivered on 21 November 2006: see MZXJN v Minister for Immigration and Multicultural Affairs [2006] FCA 1624.
 </sentence>
<sentence from="[2006] FCA 1688" id="cs5">9 In the days preceding the hearing, Mr Jewiss through a corporation sent to the Court (but not to the Commissioner's legal representatives) medical certificates indicating that he was unfit for work by reason of illness for the period from 6 to 20 November 2006. He did not attend the hearing. He sent a letter to the Court indicating that he would be unable to do so because of illness. There is no further medical evidence to indicate his ongoing incapacity for work after 20 November 2006, or more importantly, any medical evidence stating that he was unfit to appear in Court on 20 November 2006 to conduct the proceedings or to appear in Court to support any application for an adjournment: see e.g. the remarks of Middleton J in MZXJN v Minister for Immigration and Multicultural Affairs [2006] FCA 1624 at [13] - [14], adopting the words of Lindgren J in NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559. There is no detailed medical report from any medical practitioner.</sentence>
</citances>
<legistitles>
<title id="l0">FEDERAL COURT OF AUSTRALIA ACT 1976 </title>
<title id="l1">FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 25 Exercise of appellate jurisdiction</title>
<title id="l2">MIGRATION ACT 1958 </title>
<title id="l3">MIGRATION ACT 1958 - SECT 91R Persecution</title>
<title id="l4">FEDERAL COURT RULES 1979 </title>
</legistitles>
</case>