Question:
<citphrase id="cp0.0">cited from="[2008] FMCA 498">migration</citphrase>
<citphrase id="cp0.1">cited from="[2008] FMCA 498">rrt decision</citphrase>
<citphrase id="cp0.2">cited from="[2008] FMCA 498">pakistani applicant claiming persecution by government narcotics agents and fundamentalist islamic group</citphrase>
<citphrase id="cp0.3">cited from="[2008] FMCA 498">disbelieved by tribunal</citphrase>
<citphrase id="cp0.4">cited from="[2008] FMCA 498">no error in failure to obtain translation of foreign language documents tendered by applicant</citphrase>
<citphrase id="cp0.5">cited from="[2008] FMCA 498">no other jurisdictional error</citphrase>
<citphrase id="cp0.6">cited from="[2008] FMCA 498">application dismissed.</citphrase>
<citphrase id="cp1.0">cited from="[2007] HCA 26">szbyr v minister for immigration and citizenship  immigration</citphrase>
<citphrase id="cp1.1">cited from="[2007] HCA 26">refugees</citphrase>
<citphrase id="cp1.2">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="cp1.3">cited from="[2007] HCA 26">the appellants gave a statutory declaration to the refugee review tribunal ("the tribunal")</citphrase>
<citphrase id="cp1.4">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="cp1.5">cited from="[2007] HCA 26">whether relief was available to the appellants.  immigration</citphrase>
<citphrase id="cp1.6">cited from="[2007] HCA 26">refugees</citphrase>
<citphrase id="cp1.7">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="cp1.8">cited from="[2007] HCA 26">whether s 424a applied to the appellants' statutory declaration</citphrase>
<citphrase id="cp1.9">cited from="[2007] HCA 26">temporal scope of s 424a</citphrase>
<citphrase id="cp1.10">cited from="[2007] HCA 26">whether the tribunal breached s 424a</citphrase>
<citphrase id="cp1.11">cited from="[2007] HCA 26">whether the tribunal committed jurisdictional error</citphrase>
<citphrase id="cp1.12">cited from="[2007] HCA 26">meaning of "information"</citphrase>
<citphrase id="cp1.13">cited from="[2007] HCA 26">whether "information" included discrepancies or inadequacies in previously submitted evidence</citphrase>
<citphrase id="cp1.14">cited from="[2007] HCA 26">meaning of "reason, or a part of the reason".  administrative law</citphrase>
<citphrase id="cp1.15">cited from="[2007] HCA 26">constitutional writs</citphrase>
<citphrase id="cp1.16">cited from="[2007] HCA 26">certiorari and mandamus</citphrase>
<citphrase id="cp1.17">cited from="[2007] HCA 26">impact of discretionary considerations governing availability of relief</citphrase>
<citphrase id="cp1.18">cited from="[2007] HCA 26">whether relief should be denied on discretionary grounds for lack of a convention nexus.</citphrase>
<citphrase id="cp2.0">cited from="[2004] FCAFC 171">migration</citphrase>
<citphrase id="cp2.1">cited from="[2004] FCAFC 171">whether tribunal failed to consider substance of claims</citphrase>
<citphrase id="cp2.2">cited from="[2004] FCAFC 171">whether tribunal failed to distinguish between the indonesian national army and the indonesian authorities. administrative law</citphrase>
<citphrase id="cp2.3">cited from="[2004] FCAFC 171">construction of reasons for decision</citphrase>
<citphrase id="cp2.4">cited from="[2004] FCAFC 171">whether the accidental omission of the word 'not' in tribunal's reasons sufficiently clear for the relevant sentence to be construed as if that word appeared in it.  practice  procedure</citphrase>
<citphrase id="cp2.5">cited from="[2004] FCAFC 171">application for order nisi remitted to federal court of australia</citphrase>
<citphrase id="cp2.6">cited from="[2004] FCAFC 171">application (amended with leave) expressly claimed constitutional writs in terms of orders absolute</citphrase>
<citphrase id="cp2.7">cited from="[2004] FCAFC 171">proceedings at first instance conducted as if applications for orders absolute</citphrase>
<citphrase id="cp2.8">cited from="[2004] FCAFC 171">judgment given on that basis</citphrase>
<citphrase id="cp2.9">cited from="[2004] FCAFC 171">whether leave required.</citphrase>
<citphrase id="cp3.0">cited from="[2003] FCA 1153">practice  procedure</citphrase>
<citphrase id="cp3.1">cited from="[2003] FCA 1153">typographical error in reasons of tribunal</citphrase>
<citphrase id="cp3.2">cited from="[2003] FCA 1153">whether inference can be drawn as to conclusions of tribunal</citphrase>
<citphrase id="cp3.3">cited from="[2003] FCA 1153">where no corrigendum issued</citphrase>
<citphrase id="cp3.4">cited from="[2003] FCA 1153">where tribunal member not called to give evidence. migration</citphrase>
<citphrase id="cp3.5">cited from="[2003] FCA 1153">failure to consider substance of claims</citphrase>
<citphrase id="cp3.6">cited from="[2003] FCA 1153">tribunal did not address applicant's membership of social groups</citphrase>
<citphrase id="cp3.7">cited from="[2003] FCA 1153">whether tribunal had dealt with all "essential integers" of the applicant's claims. words  phrases</citphrase>
<citphrase id="cp3.8">cited from="[2003] FCA 1153">'plausible'</citphrase>
<citphrase id="cp5.0">cited from="[2000] HCA 1">re the minister for immigration and multicultural affairs; ex parte durairajasingham  immigration law and administrative law</citphrase>
<citphrase id="cp5.1">cited from="[2000] HCA 1">refugee</citphrase>
<citphrase id="cp5.2">cited from="[2000] HCA 1">refugee review tribunal decision refusing to grant protection visa</citphrase>
<citphrase id="cp5.3">cited from="[2000] HCA 1">application in original jurisdiction of high court for prerogative relief</citphrase>
<citphrase id="cp5.4">cited from="[2000] HCA 1">whether tribunal failed to take into account relevant considerations and evidence</citphrase>
<citphrase id="cp5.5">cited from="[2000] HCA 1">whether tribunal failed to consider all available inferences from evidence</citphrase>
<citphrase id="cp5.6">cited from="[2000] HCA 1">whether s 430(1) of the migration act 1958 (cth) required the tribunal to refer to evidence contrary to its findings</citphrase>
<citphrase id="cp5.7">cited from="[2000] HCA 1">whether a breach of s 430(1) amounts to a jurisdictional error grounding prerogative relief.  constitutional law</citphrase>
<citphrase id="cp5.8">cited from="[2000] HCA 1">federal jurisdiction</citphrase>
<citphrase id="cp5.9">cited from="[2000] HCA 1">role of the high court under the constitution</citphrase>
<citphrase id="cp5.10">cited from="[2000] HCA 1">extent of high court's jurisdiction to grant certiorari pursuant to s 75(v) of the constitution .</citphrase>
<citphrase id="cp7.0">cited from="[1996] HCA 6">immigration</citphrase>
<citphrase id="cp7.1">cited from="[1996] HCA 6">refugees</citphrase>
<citphrase id="cp7.2">cited from="[1996] HCA 6">application to review decisions of minister's delegates refusing claim for refugee status</citphrase>
<citphrase id="cp7.3">cited from="[1996] HCA 6">application of chan v minister for immigration and ethnic affairs [1989] hca 62 ; (1989) 169 clr 379</citphrase>
<citphrase id="cp7.4">cited from="[1996] HCA 6">'real chance' of persecution test</citphrase>
<citphrase id="cp7.5">cited from="[1996] HCA 6">whether delegates failed properly to consider real chance of persecution.   administrative law</citphrase>
<citphrase id="cp7.6">cited from="[1996] HCA 6">judicial review</citphrase>
<citphrase id="cp7.7">cited from="[1996] HCA 6">decisions as to 'refugee status'</citphrase>
<citphrase id="cp7.8">cited from="[1996] HCA 6">proper role of reviewing court.</citphrase>
<citphrase id="cp8.0">citing from="[2010] FCA 1050">migration</citphrase>
<citphrase id="cp8.1">citing from="[2010] FCA 1050">appellants claimed they had been issued with summonses in china</citphrase>
<citphrase id="cp8.2">citing from="[2010] FCA 1050">tribunal informed appellants summonses not on file</citphrase>
<citphrase id="cp8.3">citing from="[2010] FCA 1050">summonses actually on file but not translated into english</citphrase>
<citphrase id="cp8.4">citing from="[2010] FCA 1050">whether tribunal had obligation to find summonses and translate them</citphrase>
<citphrase id="cp8.5">citing from="[2010] FCA 1050">whether tribunal in any event considered appellants' claims</citphrase>
<citphrase id="cp8.6">citing from="[2010] FCA 1050">whether tribunal misunderstood claims of appellants to be members of a "local family church"</citphrase>
<citphrase id="cp8.7">citing from="[2010] FCA 1050">application of s 91r migration act 1958 (cth)</citphrase>
<citphrase id="cp9.0">citing from="[2009] FCA 1542">migration</citphrase>
<citphrase id="cp9.1">citing from="[2009] FCA 1542">duty to make inquiries</citphrase>
<citphrase id="cp9.2">citing from="[2009] FCA 1542">adequate inquiries undertaken</citphrase>
<citphrase id="cp9.3">citing from="[2009] FCA 1542">duty to obtain translation of documents</citphrase>
<citphrase id="cp9.4">citing from="[2009] FCA 1542">circumstances in which duty may arise</citphrase>
<citphrase id="cp9.5">citing from="[2009] FCA 1542">duty does not arise   practice and procedure</citphrase>
<citphrase id="cp9.6">citing from="[2009] FCA 1542">attempt to rely upon a ground of appeal abandoned before the federal magistrate</citphrase>
<citphrase id="cp9.7">citing from="[2009] FCA 1542">leave to raise as ground of appeal refused</citphrase>
<citphrase id="cp10.0">citing from="[2009] FMCA 1140">migration</citphrase>
<citphrase id="cp10.1">citing from="[2009] FMCA 1140">rrt decision</citphrase>
<citphrase id="cp10.2">citing from="[2009] FMCA 1140">lebanese applicant claiming fear of persecution by hezbollah</citphrase>
<citphrase id="cp10.3">citing from="[2009] FMCA 1140">disbelieved by tribunal</citphrase>
<citphrase id="cp10.4">citing from="[2009] FMCA 1140">no breach of s.424(2)</citphrase>
<citphrase id="cp10.5">citing from="[2009] FMCA 1140">findings open on the evidence</citphrase>
<citphrase id="cp10.6">citing from="[2009] FMCA 1140">no general duty on tribunal to obtain translations or make inquiries</citphrase>
<citphrase id="cp10.7">citing from="[2009] FMCA 1140">no jurisdictional error established</citphrase>
<citphrase id="cp10.8">citing from="[2009] FMCA 1140">application dismissed.</citphrase>
<citphrase id="cp11.0">citing from="[2009] FMCA 44">migration</citphrase>
<citphrase id="cp11.1">citing from="[2009] FMCA 44">rrt decision</citphrase>
<citphrase id="cp11.2">citing from="[2009] FMCA 44">bangladeshi applicant claiming political persecution</citphrase>
<citphrase id="cp11.3">citing from="[2009] FMCA 44">claims not made in visa application</citphrase>
<citphrase id="cp11.4">citing from="[2009] FMCA 44">delay in raising them before tribunal</citphrase>
<citphrase id="cp11.5">citing from="[2009] FMCA 44">tribunal rejected claims as recent invention</citphrase>
<citphrase id="cp11.6">citing from="[2009] FMCA 44">whether conclusion affected by fraud of migration agent</citphrase>
<citphrase id="cp11.7">citing from="[2009] FMCA 44">fraudulent conduct not established</citphrase>
<citphrase id="cp11.8">citing from="[2009] FMCA 44">no jurisdictional error by tribunal in consideration of corroborative documents</citphrase>
<citphrase id="cp11.9">citing from="[2009] FMCA 44">no duties on tribunal to inquire or obtain translations</citphrase>
<citphrase id="cp11.10">citing from="[2009] FMCA 44">no jurisdictional error in tribunal's application of s.91r(3)</citphrase>
<citphrase id="cp11.11">citing from="[2009] FMCA 44">application dismissed.</citphrase>
</citphrases>
<citances>
<sentence from="[2010] FCA 1050" id="cs0">Second, the facts clearly demonstrate that the relevant summonses, while apparently included in the material before the Tribunal, were not translated into English. As a general proposition, while s 414 of the Act requires the Tribunal to review decisions of the Minister, it is not for the Tribunal to arrange to have material on the file translated where the relevance of the material is not explained: Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 at [25] . In this case, in light of the obligation on the appellants to make their own case, it could not be expected that the Tribunal would take the appellants through the file on a document by document search in an endeavour to locate the summonses when they were not apparent, in English, on the face of the file. To the extent that the Tribunal was obliged to ask the appellants about the location of the summonses because the appellants' case clearly relied in part on the existence of those documents, I consider that the Tribunal discharged that obligation when it put to the first appellant that it had not seen the summonses and outlined the documents on the file. That this is so is also clear from: The fact that, when the Tribunal specifically asked the appellants about the whereabouts of the summonses, the final answer given to the Tribunal was that the appellants would need to ask their migration agent. To that extent, there is no evidence (unlike, for example, in SZLSW v Minister for Immigration and Citizenship [2008] FCA 1321 ; (2008) 103 ALD 580) that the Tribunal was taken to the summonses and the relevance of those documents explained despite the lack of translation. In those circumstances it is not surprising that the Tribunal should have concluded that the summonses were not in the material before it. The fact that relevant documentation from the Tribunal which was before the appellants referred to the need for material upon which the appellants were relying to be translated into English (for example, Section E of the Application for Review, the letter of 1 December 2008 from the Tribunal to the appellants' migration agent, the letter of 15 December 2008 from the Tribunal to the first appellant, the letter of 20 August 2009 from the Tribunal to the appellants). That the appellants recognised this need is illustrated by the fact that the statement of the first appellant annexed to the Application for Review dated 15 November 2008 includes an English translation initialled by the first appellant. </sentence>
<sentence from="[2009] FCA 1542" id="cs1">The second reason why this final Ground of Appeal should be rejected is that, in the present proceeding, the now Appellant had been expressly invited by the Tribunal to draw its attention to any particular document that he specifically sought to rely upon. He apparently declined that invitation. The reasons for decision of the Tribunal thus record that it asked the Appellant " whether there was anything he particularly wanted to refer it to within the large amount of material submitted ...". And that arose, it is to be recalled, in a context where the now Appellant had been requested to provide documents to the Tribunal in advance of the hearing and yet only produced many of the documents on the day of the hearing itself. A claimant cannot complain of any inadequacy of an opportunity to be heard, or of any failure to take into account a particular matter, in circumstances where he produces a vast number of documents at a hearing before the Tribunal and fails to avail himself of an opportunity to draw the Tribunal's attention to a particular matter or matters contained within those documents. Even where a document is not translated, there may be no error where the Tribunal in fact takes into account a point sought to be made by a claimant in reliance upon untranslated documents: SZLSW v Minister for Immigration and Citizenship [2008] FCA 1321 at [16] , 103 ALD 580 at 584. Where the " gist " of a document which is otherwise untranslated is understood, there may be no error: S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153 at [49] per Moore J. </sentence>
<sentence from="[2009] FMCA 1140" id="cs2">Nor do I accept that the Tribunal was under any obligations itself to obtain translations of the documents which were not in English. It is well established that the Tribunal is under no such general obligation (see the authorities I cited in SZLSW v Minister for Immigration [2008] FMCA 498 , upheld by Rares J in SZLSW v Minister for Citizenship  Immigration [2008] FCA 1321). In the present circumstances, it was open to the Tribunal to expect the applicant and his solicitor to present translations, if indeed the contents of these documents formed an important part of his case. </sentence>
<sentence from="[2009] FMCA 44" id="cs3">As with the general powers of the Tribunal to make its own inquiries into evidence, the authorities establish that only exceptionally will a Tribunal have any obligation to obtain translations so as to have regard to the contents of foreign language documents submitted by an applicant (see the line of authority I cited in SZLSW v Minister for Immigration  Anor [2008] FMCA 498 at [36] , upheld by Rares J in SZLSW v Minister for Citizenship  Immigration [2008] FCA 1321). </sentence>
</citances>
<legistitles>
<title id="l0">MIGRATION ACT 1958 </title>
<title id="l1">MIGRATION ACT 1958 - SECT 414 Refugee Review Tribunal must review decisions</title>
<title id="l2">MIGRATION ACT 1958 - SECT 424 Tribunal may seek information</title>
<title id="l3">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp1.0">cited from="[2007] FCAFC 191">extradition</citphrase>
<citphrase id="cp1.1">cited from="[2007] FCAFC 191">appeal against dismissal of application for writ of prohibition and injunctive relief to restrain the execution of a surrender warrant</citphrase>
<citphrase id="cp1.2">cited from="[2007] FCAFC 191">s 23 of extradition act requires the issue of a surrender warrant following a valid surrender determination without any further decision</citphrase>
<citphrase id="cp1.3">cited from="[2007] FCAFC 191">neither communication with the united nations (based upon united nations convention against torture and other cruel and inhumane or degrading treatment or punishment (convention against torture) nor involvement in litigation within australia by person subject to surrender determination was a basis for judicial intervention in relation to the operation of s 23  constitutional law</citphrase>
<citphrase id="cp1.4">cited from="[2007] FCAFC 191">whether involvement in australian court proceedings a bar to extradition practice and procedure</citphrase>
<citphrase id="cp1.5">cited from="[2007] FCAFC 191">whether proceeding an abuse of process international law</citphrase>
<citphrase id="cp1.6">cited from="[2007] FCAFC 191">effect of convention against torture and international covenant on civil and political rights in extradition proceeding</citphrase>
<citphrase id="cp2.0">cited from="[2007] FCA 1465">habeas corpus</citphrase>
<citphrase id="cp2.1">cited from="[2007] FCA 1465">application for writ of habeas corpus</citphrase>
<citphrase id="cp2.2">cited from="[2007] FCA 1465">whether writ available where applicant does not argue detention unlawful</citphrase>
<citphrase id="cp2.3">cited from="[2007] FCA 1465">no arguable case for writ extradition</citphrase>
<citphrase id="cp2.4">cited from="[2007] FCA 1465">application for declaration that detention at correctional facility unlawful under extradition act 1988 (cth)</citphrase>
<citphrase id="cp2.5">cited from="[2007] FCA 1465">whether act imposes obligation to hold persons awaiting extradition in different manner to convicted persons</citphrase>
<citphrase id="cp2.6">cited from="[2007] FCA 1465">whether applicant can be moved from remand centre to correctional facility</citphrase>
<citphrase id="cp2.7">cited from="[2007] FCA 1465">whether nsw act applies</citphrase>
<citphrase id="cp2.8">cited from="[2007] FCA 1465">definition of 'prison' for purposes of act</citphrase>
<citphrase id="cp2.9">cited from="[2007] FCA 1465">no arguable case incarceration unlawful order 80</citphrase>
<citphrase id="cp2.10">cited from="[2007] FCA 1465">application for referral for pro bono assistance</citphrase>
<citphrase id="cp2.11">cited from="[2007] FCA 1465">no arguable basis for matters relied on</citphrase>
<citphrase id="cp2.12">cited from="[2007] FCA 1465">applicant presented case competently</citphrase>
<citphrase id="cp2.13">cited from="[2007] FCA 1465">order not appropriate</citphrase>
<citphrase id="cp3.0">cited from="[2005] FCA 319">practice and procedure</citphrase>
<citphrase id="cp3.1">cited from="[2005] FCA 319">pro bono legal assistance</citphrase>
<citphrase id="cp3.2">cited from="[2005] FCA 319">effect of order 80 certificate</citphrase>
<citphrase id="cp3.3">cited from="[2005] FCA 319">whether certificate able to be revoked</citphrase>
<citphrase id="cp3.4">cited from="[2005] FCA 319">no guarantee of legal representation</citphrase>
<citphrase id="cp3.5">cited from="[2005] FCA 319">appeal adjourned in absence of legal representation</citphrase>
<citphrase id="cp3.6">cited from="[2005] FCA 319">order 80 certificate in force</citphrase>
<citphrase id="cp3.7">cited from="[2005] FCA 319">matter referred back to registrar to attempt to secure legal assistance on appeal</citphrase>
<citphrase id="cp4.0">citing from="[2011] FMCA 402">practice  procedure</citphrase>
<citphrase id="cp4.1">citing from="[2011] FMCA 402">pro-bono counsel referral</citphrase>
<citphrase id="cp4.2">citing from="[2011] FMCA 402">prior pro-bono counsel referrals</citphrase>
<citphrase id="cp4.3">citing from="[2011] FMCA 402">principles applicable to referral</citphrase>
<citphrase id="cp4.4">citing from="[2011] FMCA 402">interests of administration of justice.</citphrase>
<citphrase id="cp5.0">citing from="[2010] FMCA 619">practice and procedure</citphrase>
<citphrase id="cp5.1">citing from="[2010] FMCA 619">migration</citphrase>
<citphrase id="cp5.2">citing from="[2010] FMCA 619">protection visa application</citphrase>
<citphrase id="cp5.3">citing from="[2010] FMCA 619">application for pro bono assistance</citphrase>
<citphrase id="cp5.4">citing from="[2010] FMCA 619">criteria for consideration of application for pro bono assistance.</citphrase>
<citphrase id="cp7.0">citing from="[2008] FCA 1772">migration</citphrase>
<citphrase id="cp7.1">citing from="[2008] FCA 1772">no ground of appeal alleging error by federal magistrates court</citphrase>
<citphrase id="cp7.2">citing from="[2008] FCA 1772">difficulty in producing documents relevant to case</citphrase>
<citphrase id="cp7.3">citing from="[2008] FCA 1772">no denial of procedural fairness</citphrase>
<citphrase id="cp7.4">citing from="[2008] FCA 1772">impermissible challenge to factual findings of tribunal</citphrase>
<citphrase id="cp7.5">citing from="[2008] FCA 1772">application for legal assistance</citphrase>
<citphrase id="cp7.6">citing from="[2008] FCA 1772">referral under o 80 refused</citphrase>
<citphrase id="cp7.7">citing from="[2008] FCA 1772">appeal dismissed</citphrase>
<citphrase id="cp8.0">citing from="[2008] FCA 63">practice and procedure</citphrase>
<citphrase id="cp8.1">citing from="[2008] FCA 63">federal court rules 1979 (cth) o 80</citphrase>
<citphrase id="cp8.2">citing from="[2008] FCA 63">request by party for referral to legal practitioner</citphrase>
<citphrase id="cp8.3">citing from="[2008] FCA 63">referral refused</citphrase>
<citphrase id="cp8.4">citing from="[2008] FCA 63">held that order 80 confined to proceedings before the court</citphrase>
<citphrase id="cp8.5">citing from="[2008] FCA 63">held that order 80 does not extend to making a referral prior to commencement of proceedings</citphrase>
<citphrase id="cp8.6">citing from="[2008] FCA 63">proceedings not properly "commenced" or "carried on"</citphrase>
</citphrases>
<citances>
<sentence from="[2011] FMCA 402" id="cs0">It will not generally be in the interests of the administration of justice to refer to the Pro Bono Panel Scheme a matter which has no reasonable prospects of success. [12] For reasons set out in Carter v TimeConti Sheffield  Anor [13] this is not presently such a matter. Means
 </sentence>
<sentence from="[2010] FMCA 619" id="cs1">It will not generally be in the interests of the administration of justice to refer to the Pro Bono Panel Scheme a matter which has no reasonable prospects of success. [15] Means
 </sentence>
<sentence from="[2009] FCA 200" id="cs2">In Rivera v Minister for Home Affairs [2008] FCA 1 Tamberlin J emphasised the words '... may , if it is in the interests of the administration of justice ...'. At [7]-[8] his Honour stated: The issue in the present reasons is whether the discretion of the Court should determine that the "administration of justice" requires Mr Rivera's proceedings to be referred to the Registrar to arrange for pro bono legal representation. In my view, the administration of justice in this case does not require that the matter be referred to a Registrar to arrange pro bono legal representation or advice for Mr Rivera because his application of 28 December 2007 discloses no reasonable prospects of success, and Mr Rivera has not adduced any evidence or provided any authority to indicate otherwise. The lack of reasonable prospects of success, or where a case is "patently hopeless" or has no "arguable basis", has been regarded by the Court as sufficient reason to refuse a referral under O 80 r 4: see Taylor [2005] FCA 319 at [10] ; Rivera v The Commonwealth of Australia [2007] FCA 1465 at [34] . As a matter of discretion, therefore, I am of the view that it is not appropriate to prolong the present proceedings which are without merit. </sentence>
<sentence from="[2008] FCA 1772" id="cs3">19 That may have been the " impression " of the now Appellant at the time. But there was no obligation imposed upon the Tribunal to raise with him whatever reservations may have been experienced at the time as to the explanations being provided by the now Appellant, let alone any obligation to raise whatever reservations may subsequently have emerged when the evidence in its entirety was being considered and the reasons being drafted. As was recognised by Lord Diplock in F Hoffman-La Roche  Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369:
 ... the rules of natural justice do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished. And, after having cited these observations, in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152 at 166 Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ further observed:
 [48] ... Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. See also: SZHBP v Minister for Immigration and Citizenship [2008] FCA 1299 at [11] , [2008] FCA 1299 ; 103 ALD 595 at 597. Although the phrase " the interests of justice " is " wide " ( Taylor v Minister for Immigration  Multicultural  Indigenous Affairs [2005] FCA 319 at [10] per French J), the " nature and complexity of the proceeding " does not warrant the making of any such referral. And it is not considered that either the application for review as made to the Federal Magistrates Court or to this Court on appeal exposes any argument which has any real prospects of success. An assessment as to prospects of success is relevant to the exercise of the " broad discretion " conferred by O 80 r 4: Rivera v Minister for Home Affairs [2008] FCA 1 at [6] ---[8] per Tamberlin J. Moreover, the now Appellant had the benefit of legal assistance prior to the hearing before the Federal Magistrates Court. Such assistance as may otherwise have been warranted was most appropriately received at the hearing before the Federal Magistrates Court rather than on appeal. </sentence>
<sentence from="[2008] FCA 63" id="cs4">That does not mean that if legal representation is unavailable the litigation must come to a halt. It may be that, if in the end, no pro bono practitioner is found who is willing to act then the appellant would have to represent himself.

 A referral has been refused where it has been concluded that proceedings disclose no arguable basis or disclose no reasonable prospects of success: see, eg, Ri v era v Commonwealth of Australia [2007] FCA 1465 ; Rivera v Minister for Home Affairs [2008] FCA 1. </sentence>
</citances>
<legistitles>
<title id="l0">EXTRADITION ACT 1988 </title>
<title id="l1">EXTRADITION ACT 1988 - SECT 23 Surrender warrants</title>
<title id="l2">EXTRADITION ACT 1988 - SECT 26 Form and execution of surrender warrants and temporary surrender warrants</title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2006] FCA 1691">administrative law</citphrase>
<citphrase id="cp0.1">cited from="[2006] FCA 1691">application for extension of time to bring proceedings under the administrative decisions (judicial review) act 1977 (cth)</citphrase>
<citphrase id="cp0.2">cited from="[2006] FCA 1691">whether extension should be granted</citphrase>
<citphrase id="cp0.3">cited from="[2006] FCA 1691">whether proceedings under s 39b of the judiciary act 1903 (cth) were commenced within a reasonable time</citphrase>
<citphrase id="cp0.4">cited from="[2006] FCA 1691">whether licensing authority misconstrued provisions of the broadcasting services act 1992 (cth)</citphrase>
<citphrase id="cp0.5">cited from="[2006] FCA 1691">whether licensing authority took into account irrelevant considerations</citphrase>
<citphrase id="cp0.6">cited from="[2006] FCA 1691">whether licensing authority failed to take account of relevant considerations</citphrase>
<citphrase id="cp0.7">cited from="[2006] FCA 1691">whether decision unreasonable</citphrase>
<citphrase id="cp0.8">cited from="[2006] FCA 1691">whether there was evidence for licensing authority's finding.</citphrase>
<citphrase id="cp1.0">cited from="[2005] FCA 254">trade practices</citphrase>
<citphrase id="cp1.1">cited from="[2005] FCA 254">price-fixing understanding</citphrase>
<citphrase id="cp1.2">cited from="[2005] FCA 254">consideration of principles applicable to the imposition of an appropriate penalty for making and giving effect to the price-fixing understanding</citphrase>
<citphrase id="cp2.0">cited from="[2005] FCA 265">leahy petroleum</citphrase>
<citphrase id="cp2.1">cited from="[2005] FCA 265">retail pty ltd</citphrase>
<citphrase id="cp3.0">cited from="[2004] FCAFC 72">trade practices</citphrase>
<citphrase id="cp3.1">cited from="[2004] FCAFC 72">civil penalty</citphrase>
<citphrase id="cp3.2">cited from="[2004] FCAFC 72">contravention of s 10 of the petroleum retail marketing sites act 1980 (cth)</citphrase>
<citphrase id="cp3.3">cited from="[2004] FCAFC 72">parties present joint submissions on the appropriate pecuniary penalty</citphrase>
<citphrase id="cp3.4">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="cp3.5">cited from="[2004] FCAFC 72">powers and responsibilities of court faced with joint submission on penalty.</citphrase>
<citphrase id="cp5.0">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="cp5.1">cited from="[1996] FCA 1134">penalties under s.76 for contraventions of part iv</citphrase>
<citphrase id="cp5.2">cited from="[1996] FCA 1134">price fixing</citphrase>
<citphrase id="cp5.3">cited from="[1996] FCA 1134">effect of agreement between a.c.c.c. and corporation on joint submissions proposing particular orders</citphrase>
<citphrase id="cp5.4">cited from="[1996] FCA 1134">desirability of settlement of such cases</citphrase>
<citphrase id="cp5.5">cited from="[1996] FCA 1134">penalty cases not criminal prosecutions</citphrase>
<citphrase id="cp5.6">cited from="[1996] FCA 1134">matters relevant to penalty</citphrase>
<citphrase id="cp5.7">cited from="[1996] FCA 1134">object of ensuring compliance with the act by deterrence</citphrase>
<citphrase id="cp5.8">cited from="[1996] FCA 1134">effect of undertaking by corporation of a compliance programme agreed with the commission</citphrase>
<citphrase id="cp5.9">cited from="[1996] FCA 1134">difficulties in comparing penalties in other cases with that proposed for the instant case</citphrase>
<citphrase id="cp5.10">cited from="[1996] FCA 1134">importance of the particular market</citphrase>
<citphrase id="cp5.11">cited from="[1996] FCA 1134">significance of identity of corporation to be penalised where it was a member of a group</citphrase>
<citphrase id="cp5.12">cited from="[1996] FCA 1134">significance of whether a corporation has previously contravened</citphrase>
<citphrase id="cp5.13">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="cp5.14">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="cp5.15">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="cp6.0">citing from="[2010] FCA 790">telecommunications</citphrase>
<citphrase id="cp6.1">citing from="[2010] FCA 790">application for pecuniary penalty, injunctions and declarations</citphrase>
<citphrase id="cp6.2">citing from="[2010] FCA 790">breach of a condition of carrier licence</citphrase>
<citphrase id="cp6.3">citing from="[2010] FCA 790">contravention of s 152ar(5)(c) of the trade practices act 1974 (cth) and s 68(1) and cl 17 of sch 1 of the telecommunications act 1997 (cth)</citphrase>
<citphrase id="cp6.4">citing from="[2010] FCA 790">admission of breach by respondent</citphrase>
<citphrase id="cp6.5">citing from="[2010] FCA 790">assessment of penalty</citphrase>
<citphrase id="cp6.6">citing from="[2010] FCA 790">relevant factors to take into consideration in assessing quantum of pecuniary penalty</citphrase>
<citphrase id="cp6.7">citing from="[2010] FCA 790">whether the same conduct</citphrase>
<citphrase id="cp6.8">citing from="[2010] FCA 790">whether to grant an injunction</citphrase>
<citphrase id="cp6.9">citing from="[2010] FCA 790">whether to make a declaration.</citphrase>
</citphrases>
<citances>
<sentence from="[2011] NSWADT 10" id="cs0">32 The Tribunal's role in this regard was considered by the Tribunal in Council of the New South Wales Bar Association v Butland [2009] NSWADT 177 , although in that matter the parties tendered a signed Instrument of Consent and invited the Tribunal to make orders by Consent under s 564(1) and s 154(1) of the 2004 Act . The Tribunal held:
€œ29 Section 564(1) and (10) of the Legal Profession Act make it plain that the Tribunal has a discretion whether or not to make orders consented to in an instrument of consent under that section. The Tribunal does not act, nor should it be seen, as merely a "rubber stamp " - see the comments of the Federal Court in a similar context in Australian Communications and Media Authority v WE.NET.AU Pty Ltd [2008] FCA 1530 at [8J. Nonetheless, the consents of the parties and the Legal Services Commissioner are matters that deserve significant weight. 30.</sentence>
<sentence from="[2010] NSWADT 208" id="cs1">The Tribunal does not act, nor should it be seen, as merely a "rubber stamp" --- see the comments of the Federal Court in a similar context in Australian Communications and Media Authority v WE.NET.AU Pty Ltd [2008] FCA 1530 at [8] .</sentence>
<sentence from="[2010] FCA 790" id="cs2">There has only been one case to date under s 570 of the Telecommunications Act which is of very limited value in the context of this proceeding. In Australian Communications and Media Authority v WE.NET.AU Pty Ltd [2008] FCA 1530 , a penalty of $6,000 was imposed in respect of a number of contraventions of the service provider. The conduct related to billing terms by a small Internet Service Provider and the imposition of a fee in the event of a billing dispute. The penalty ordered by the Court reflected an agreed penalty between the respondent and ACMA following a Court ordered mediation of the issue. The Court also took account of the parlous financial circumstances of the respondent in accepting the agreed penalty figure. </sentence>
<sentence from="[2010] NSWADT 170" id="cs3">The Tribunal does not act, nor should it be seen, as merely a "rubber stamp" --- see the comments of the Federal Court in a similar context in Australian Communications and Media Authority v WE.NET.AU Pty Ltd [2008] FCA 1530 at [8] .</sentence>
<sentence from="[2009] NSWADT 177" id="cs4">29 Section 564(1) and (10) of the Legal Profession Act makes plain that the Tribunal has a discretion whether or not to make orders consented to in an instrument of consent under that section. The Tribunal does not act, nor should it be seen, as merely a "rubber stamp" --- see the comments of the Federal Court in a similar context in Australian Communications and Media Authority v WE.NET.AU Pty Ltd [2008] FCA 1530 at [8] . Nonetheless, the consents of the parties and the Legal Services Commissioner are matters that deserve significant weight. </sentence>
</citances>
<legistitles>
<title id="l0">COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT </title>
<title id="l1">FEDERAL COURT OF AUSTRALIA ACT 1976 </title>
<title id="l2">FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 21 Declarations of right</title>
<title id="l3">TELECOMMUNICATIONS ACT 1997 </title>
<title id="l4">TELECOMMUNICATIONS ACT 1997 - SECT 52 Applications for carrier licence</title>
<title id="l5">TELECOMMUNICATIONS ACT 1997 - SECT 80 Further information</title>
<title id="l6">TELECOMMUNICATIONS ACT 1997 - SECT 87 Carriage service providers</title>
<title id="l7">TELECOMMUNICATIONS ACT 1997 - SECT 98 Service provider rules</title>
<title id="l8">TELECOMMUNICATIONS ACT 1997 - SECT 101 Service providers must comply with service provider rules</title>
<title id="l9">TELECOMMUNICATIONS ACT 1997 - SECT 102 Remedial directions--breach of service provider rules</title>
<title id="l10">TELECOMMUNICATIONS ACT 1997 - SECT 117 Registration of industry codes</title>
<title id="l11">TELECOMMUNICATIONS ACT 1997 - SECT 127 Industry standards not to be determined during the first 180 days after commencement</title>
<title id="l12">TELECOMMUNICATIONS ACT 1997 - SECT 128 Compliance with industry standards</title>
<title id="l13">TELECOMMUNICATIONS ACT 1997 - SECT 132 Public consultation on industry standards</title>
<title id="l14">TELECOMMUNICATIONS ACT 1997 - SECT 564 Injunctions</title>
<title id="l15">TELECOMMUNICATIONS ACT 1997 - SECT 570 Pecuniary penalties for contravention of civil penalty provisions</title>
<title id="l16">TELECOMMUNICATIONS (CONSUMER PROTECTION AND SERVICE STANDARDS) ACT 1999 </title>
<title id="l17">TELECOMMUNICATIONS (CONSUMER PROTECTION AND SERVICE STANDARDS) ACT 1999 - SECT 127 Eligible carriage service providers</title>
<title id="l18">TELECOMMUNICATIONS (CONSUMER PROTECTION AND SERVICE STANDARDS) ACT 1999 - SECT 128 Telecommunications Industry Ombudsman scheme</title>
<title id="l19">TELECOMMUNICATIONS (CONSUMER PROTECTION AND SERVICE STANDARDS) ACT 1999 - SECT 132 Members of scheme must comply with scheme</title>
<title id="l20">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2006] FCA 360">practice and procedure</citphrase>
<citphrase id="cp0.1">cited from="[2006] FCA 360">application for further discovery immediately prior to trial</citphrase>
<citphrase id="cp0.2">cited from="[2006] FCA 360">consideration of the case management of the re-hearing of the action</citphrase>
<citphrase id="cp0.3">cited from="[2006] FCA 360">directions orders</citphrase>
<citphrase id="cp0.4">cited from="[2006] FCA 360">consideration of the principles in relation to supplementary discovery.</citphrase>
<citphrase id="cp1.0">cited from="[2006] HCA 2">antoun v the queen  antoun v the queen  courts and judges</citphrase>
<citphrase id="cp1.1">cited from="[2006] HCA 2">apprehension of bias</citphrase>
<citphrase id="cp1.2">cited from="[2006] HCA 2">judge sitting alone in criminal trial</citphrase>
<citphrase id="cp1.3">cited from="[2006] HCA 2">standards of fairness and detachment required of a trial judge.   gleeson cj. the appellants were jointly charged with demanding money with menaces from michael savvas, with intent to steal. the trial was conducted in the district court of new south wales before judge christie, sitting without a jury. the appellants were convicted, and sentenced to terms of imprisonment. they appealed unsuccessfully to the court of criminal appeal of new south wales [1] . the sole ground of their further appeal to this court is that the trial judge conducted himself in such a way that a fair-minded observer might reasonably apprehend that he might not bring an impartial and unprejudiced mind to the resolution of the question whether the appellants ought to be convicted. that ground is conveniently summarised as "apprehended bias". the apprehended bias is said to have arisen from two aspects of the trial judge's conduct in particular: first, the manner in which he dealt with what was described as a submission of no case to answer; secondly, his manner of raising and dealing with a question of bail.</citphrase>
<citphrase id="cp2.0">cited from="[2004] FCAFC 189">courts and judicial system</citphrase>
<citphrase id="cp3.0">cited from="[2003] FCA 175">trade and commerce</citphrase>
<citphrase id="cp3.1">cited from="[2003] FCA 175">s 52 of the trade practices act 1974 (cth)</citphrase>
<citphrase id="cp3.2">cited from="[2003] FCA 175">whether representations made</citphrase>
<citphrase id="cp3.3">cited from="[2003] FCA 175">whether representations relied on</citphrase>
<citphrase id="cp5.0">cited from="[2000] HCA 48">johnson v johnson  courts and judges</citphrase>
<citphrase id="cp5.1">cited from="[2000] HCA 48">bias</citphrase>
<citphrase id="cp5.2">cited from="[2000] HCA 48">reasonable apprehension of bias</citphrase>
<citphrase id="cp5.3">cited from="[2000] HCA 48">application for disqualification for bias</citphrase>
<citphrase id="cp5.4">cited from="[2000] HCA 48">statement by trial judge about evidence to be relied upon</citphrase>
<citphrase id="cp5.5">cited from="[2000] HCA 48">whether statement gave rise to reasonable apprehension of bias.</citphrase>
<citphrase id="cp6.0">citing from="[2009] FCA 291">practice and procedure</citphrase>
<citphrase id="cp6.1">citing from="[2009] FCA 291">application that judge who heard and determined interlocutory application not sit on the final hearing on grounds of apprehended bias</citphrase>
<citphrase id="cp6.2">citing from="[2009] FCA 291">subject matter of interlocutory hearing no longer the same as the subject matter of the proposed final hearing</citphrase>
<citphrase id="cp6.3">citing from="[2009] FCA 291">application refused</citphrase>
<citphrase id="cp7.0">citing from="[2009] FCAFC 8">practice and procedure</citphrase>
<citphrase id="cp7.1">citing from="[2009] FCAFC 8">apprehended bias</citphrase>
<citphrase id="cp7.2">citing from="[2009] FCAFC 8">judgment overturned on appeal on a question of the exclusion of certain evidence</citphrase>
<citphrase id="cp7.3">citing from="[2009] FCAFC 8">proceeding remitted to and heard by the same trial judge</citphrase>
<citphrase id="cp7.4">citing from="[2009] FCAFC 8">comments made in the original judgment about the policy of evidence law and relevance of evidence the subject of the appeal</citphrase>
<citphrase id="cp7.5">citing from="[2009] FCAFC 8">evidence now admitted</citphrase>
<citphrase id="cp7.6">citing from="[2009] FCAFC 8">same substantive verdict on retrial</citphrase>
<citphrase id="cp7.7">citing from="[2009] FCAFC 8">whether a properly informed lay observer, looking objectively at the circumstances in which the proceeding was remitted to the primary judge, might reasonably apprehend that the primary judge might not bring an impartial and unbiased mind to the resolution of the dispute between the parties</citphrase>
<citphrase id="cp8.0">citing from="[2008] FCA 959">migration</citphrase>
<citphrase id="cp8.1">citing from="[2008] FCA 959">consideration of the use by the tribunal of country information said to be less relevant than more contemporary country information</citphrase>
<citphrase id="cp8.2">citing from="[2008] FCA 959">consideration of a contention of bias</citphrase>
<citphrase id="cp8.3">citing from="[2008] FCA 959">consideration of a claim for a well-founded fear of persecution for a convention reason based upon events of protest in australia after the arrival of the applicant to this country</citphrase>
<citphrase id="cp8.4">citing from="[2008] FCA 959">consideration of a sur place claim</citphrase>
<citphrase id="cp8.5">citing from="[2008] FCA 959">consideration of s 91r(3)(b) of the migration act 1958 (cth)</citphrase>
<citphrase id="cp9.0">citing from="[2006] AATA 523">expectation pty ltd v prd reality pty ltd (no.2)</citphrase>
<citphrase id="cp9.1">citing from="[2006] AATA 523">[2006] fca 392</citphrase>
</citphrases>
<citances>
<sentence from="[2009] FCA 291" id="cs0">The application of the test requires two things. First, the identification of what it is that might lead a judge to decide the particular questions before him or her other than on the merits. Secondly, having identified the factor or circumstance that might influence a departure from meritorious decision-making, it is "no less important" ( Ebner at [8]) to articulate the "logical connection" between that factor and the fear that the judge might not apply proper judicial method (that is, merits based decision-making) in resolving the controversy on the facts and the law ( Ebner at [8]: as to a recent example of the application of the second limb, see: Expectation Pty Ltd v PRD Realty Pty Ltd  Anor (No 2) [2006] FCA 392 ; (2006) 151 FCR 160). Only when the relevant factor is identified and the logical connection articulated, can the reasonableness of the asserted apprehension of bias be assessed. This test reflects ( Ebner at [33]):
... the general principle to be applied ... to problems of apprehended bias, whether arising from interest, conduct, association, extraneous information or some other circumstance.</sentence>
<sentence from="[2009] FCAFC 8" id="cs1">First, the identification of what it is that might lead a judge to decide the particular questions before him or her other than on the merits. Secondly, having identified the factor or circumstance that might influence a departure from meritorious decision-making, it is "no less important" ( Ebner at [8]) to articulate the "logical connection" between that factor and the fear that the judge might not apply proper judicial method (that is, merits based decision-making) in resolving the controversy on the facts and the law ( Ebner at [8]: as to a recent example of the application of the second limb, see: Expectation Pty Ltd v PRD Realty Pty Ltd  Anor (No. 2) [2006] FCA 392 ; (2006) 151 FCR 160). Only when the relevant factor is identified and the logical connection articulated, can the reasonableness of the asserted apprehension of bias be assessed. This test reflects ( Ebner at [33]):
... the general principle to be applied ... to problems of apprehended bias, whether arising from interest, conduct, association, extraneous information or some other circumstance.</sentence>
<sentence from="[2008] FCA 959" id="cs2">49 The Tribunal's reference to the country information upon which it relied is said to reflect a less rigorous standard for assessing prospective risk and reflects an approach on the part of the Tribunal of simply relying upon out of date and irrelevant information rather than an inquiring or analytical approach to the question before it. Two things should be noted about this contention. First, it is clear from the Tribunal's reasons that it comprehensively reviewed all of the evidence both in terms of the appellant's written evidence and the evidence of the witnesses at the hearing. Thus, the Tribunal did not simply rely upon 'old decision templates'. Rather, the Tribunal asked itself whether it could be satisfied on all the material that the appellant held a well-founded fear of persecution for a Convention reason should he return to the PRC. Secondly, to the extent that the appellant's contention raises the notion of bias on the part of the Tribunal, there is no basis for such a ground of challenge. There is no evidence of pre-judgment by the Tribunal ( Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 , per Gleeson CJ and Gummow J at [71] and [72]). If the contention is one of apprehended bias rather than actual bias, no fair-minded lay observer examining the reasons of the Tribunal could reasonably apprehend bias ( Re Refugee Review Tribunal  Anor; Ex parte H  Anor [2001] HCA 28 ; (2001) 179 ALR 425 per Gleeson CJ, Gaudron and Gummow JJ at [27] - [32]; Ebner v Official Trustee [2000] HCA 63 ; (2000) 176 ALR 644 at 647 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Expectation Pty Ltd v PRD Realty Pty Ltd  Anor (No. 2) [2006] FCA 392 ; (2006) 151 FCR 160). </sentence>
<sentence from="[2006] AATA 523" id="cs3">Those authorities included Re Seven Network Limited v Another (2004) 182 FLR at 169 Goldberg J, Expectation Pty Ltd v PRD Reality Pty Ltd ( No.2) --- [2006] FCA 392 , Re JRL Ex Parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 , Ebner v Official Trustee in Bankruptcy (2000) CLR 337 , Antoun v The Queen [2006] HCA 2 and Spalla v St George Wholesale Finance Pty Ltd [2006] FCA 416.</sentence>
</citances>
<legistitles>
<title id="l0">TRADE PRACTICES ACT 1974 </title>
<title id="l1">FEDERAL COURT RULES 1979 </title>
<title id="l2">FAIR TRADING ACT 1989 </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2004] HCA 1">a solicitor v the council of the law society of new south wales  legal practitioners</citphrase>
<citphrase id="cp0.1">cited from="[2004] HCA 1">solicitors</citphrase>
<citphrase id="cp0.2">cited from="[2004] HCA 1">jurisdiction of the supreme court with respect to the discipline of legal practitioners</citphrase>
<citphrase id="cp0.3">cited from="[2004] HCA 1">declaration of professional misconduct in circumstances where person convicted of sexual offences</citphrase>
<citphrase id="cp0.4">cited from="[2004] HCA 1">declaration of professional misconduct in circumstances where person failed to disclose fact of conviction of offence but where conviction ultimately set aside on appeal</citphrase>
<citphrase id="cp0.5">cited from="[2004] HCA 1">duty of candour to professional association</citphrase>
<citphrase id="cp0.6">cited from="[2004] HCA 1">distinction between professional misconduct and purely personal misconduct</citphrase>
<citphrase id="cp0.7">cited from="[2004] HCA 1">removal from roll of practitioners on basis that person not a fit and proper person to be a legal practitioner</citphrase>
<citphrase id="cp0.8">cited from="[2004] HCA 1">relevance of rehabilitation and character</citphrase>
<citphrase id="cp0.9">cited from="[2004] HCA 1">relevance of findings of professional misconduct to question of whether fit and proper person.</citphrase>
<citphrase id="cp1.0">cited from="[1996] HCA 6">immigration</citphrase>
<citphrase id="cp1.1">cited from="[1996] HCA 6">refugees</citphrase>
<citphrase id="cp1.2">cited from="[1996] HCA 6">application to review decisions of minister's delegates refusing claim for refugee status</citphrase>
<citphrase id="cp1.3">cited from="[1996] HCA 6">application of chan v minister for immigration and ethnic affairs [1989] hca 62 ; (1989) 169 clr 379</citphrase>
<citphrase id="cp1.4">cited from="[1996] HCA 6">'real chance' of persecution test</citphrase>
<citphrase id="cp1.5">cited from="[1996] HCA 6">whether delegates failed properly to consider real chance of persecution.   administrative law</citphrase>
<citphrase id="cp1.6">cited from="[1996] HCA 6">judicial review</citphrase>
<citphrase id="cp1.7">cited from="[1996] HCA 6">decisions as to 'refugee status'</citphrase>
<citphrase id="cp1.8">cited from="[1996] HCA 6">proper role of reviewing court.</citphrase>
<citphrase id="cp2.0">cited from="[1993] FCA 456">income tax</citphrase>
<citphrase id="cp2.1">cited from="[1993] FCA 456">ascertainment of assessable income</citphrase>
<citphrase id="cp2.2">cited from="[1993] FCA 456">distinction between income and capital</citphrase>
<citphrase id="cp2.3">cited from="[1993] FCA 456">compensation received</citphrase>
<citphrase id="cp2.4">cited from="[1993] FCA 456">termination of agreement for manufacture and sale of motor vehicle engine components over period of years</citphrase>
<citphrase id="cp2.5">cited from="[1993] FCA 456">whether compensation for termination a compensation for abandonment of part of the taxpayer's profit-making structure.  income tax assessment act 1936</citphrase>
<citphrase id="cp2.6">cited from="[1993] FCA 456">s.25</citphrase>
<citphrase id="cp3.0">cited from="[1991] FCA 185">veterans' affairs</citphrase>
<citphrase id="cp3.1">cited from="[1991] FCA 185">whether a reasonable hypothesis as to a causal connection between war service and the veteran's medical condition</citphrase>
<citphrase id="cp3.2">cited from="[1991] FCA 185">meaning of reasonable hypothesis</citphrase>
<citphrase id="cp3.3">cited from="[1991] FCA 185">stress, alcohol and cardio-vascular disease</citphrase>
<citphrase id="cp3.4">cited from="[1991] FCA 185">whether aat failed to deal with the whole of the veteran's case.</citphrase>
<citphrase id="cp4.0">cited from="[1988] FCA 212">administrative law</citphrase>
<citphrase id="cp4.1">cited from="[1988] FCA 212">veterans' entitlements act s.36(a)(i)</citphrase>
<citphrase id="cp4.2">cited from="[1988] FCA 212">whether service satisfied requirements for a service pension</citphrase>
<citphrase id="cp4.3">cited from="[1988] FCA 212">whether danger incurred</citphrase>
<citphrase id="cp4.4">cited from="[1988] FCA 212">meaning of the words in s.36(a)(i)</citphrase>
<citphrase id="cp4.5">cited from="[1988] FCA 212">the nature of the test</citphrase>
<citphrase id="cp4.6">cited from="[1988] FCA 212">the distinction between error of law and error of fact</citphrase>
<citphrase id="cp4.7">cited from="[1988] FCA 212">relevance of endorsement stamped on certificate of discharge.  veterans' entitlements act 1986 (cth)</citphrase>
<citphrase id="cp4.8">cited from="[1988] FCA 212">s.36(a)(i)</citphrase>
<citphrase id="cp5.0">cited from="[1988] FCA 119">income tax</citphrase>
<citphrase id="cp5.1">cited from="[1988] FCA 119">purchase of business</citphrase>
<citphrase id="cp5.2">cited from="[1988] FCA 119">"assumption" by purchaser of liability of vendor for or on account of annual leave</citphrase>
<citphrase id="cp5.3">cited from="[1988] FCA 119">whether employees to be "taken over" by purchaser</citphrase>
<citphrase id="cp5.4">cited from="[1988] FCA 119">whether derivation by purchaser of income in the sum of that liability in circumstances of the case</citphrase>
<citphrase id="cp5.5">cited from="[1988] FCA 119">whether gain constituted income according to ordinary concepts or whether amount had been received by way of insurance or indemnity</citphrase>
<citphrase id="cp5.6">cited from="[1988] FCA 119">income tax assessment act 1936 , ss. 25, 26 (j).  practice and procedure</citphrase>
<citphrase id="cp5.7">cited from="[1988] FCA 119">whether appeal to the federal court from the administrative appeals tribunal an appeal on "question of law"</citphrase>
<citphrase id="cp5.8">cited from="[1988] FCA 119">administrative appeals tribunal act 1977, s. 44.  federal jurisdiction</citphrase>
<citphrase id="cp5.9">cited from="[1988] FCA 119">"matter" within meaning of chapter iii of the constitution</citphrase>
<citphrase id="cp5.10">cited from="[1988] FCA 119">whether s. 44 of the administrative appeals tribunal act 1977 confers jurisdiction with respect to a "matter"</citphrase>
<citphrase id="cp5.11">cited from="[1988] FCA 119">the content of that matter.</citphrase>
<citphrase id="cp6.0">cited from="[1987] HCA 25">constitutional law</citphrase>
<citphrase id="cp6.1">cited from="[1987] HCA 25">freedom of information</citphrase>
<citphrase id="cp6.2">cited from="[1987] HCA 25">exempt documents</citphrase>
<citphrase id="cp6.3">cited from="[1987] HCA 25">legal professional privilege</citphrase>
<citphrase id="cp6.4">cited from="[1987] HCA 25">communications between government and salaried legal advisers</citphrase>
<citphrase id="cp6.5">cited from="[1987] HCA 25">freedom of information act 1982 (cth), s.42(1).  practice</citphrase>
<citphrase id="cp6.6">cited from="[1987] HCA 25">discovery</citphrase>
<citphrase id="cp6.7">cited from="[1987] HCA 25">legal professional privilege</citphrase>
<citphrase id="cp6.8">cited from="[1987] HCA 25">communications between government and salaried legal advisers.</citphrase>
<citphrase id="cp7.0">cited from="[1980] FCA 96">customs and excise</citphrase>
<citphrase id="cp7.1">cited from="[1980] FCA 96">customs duties</citphrase>
<citphrase id="cp7.2">cited from="[1980] FCA 96">appeal from administrative appeals tribunal</citphrase>
<citphrase id="cp7.3">cited from="[1980] FCA 96">importation of vehicles having the characteristics of tractors</citphrase>
<citphrase id="cp7.4">cited from="[1980] FCA 96">whether vehicles "tractors" as defined in tariff</citphrase>
<citphrase id="cp7.5">cited from="[1980] FCA 96">if so, whether they were derivatives of "agricultural tractors" as defined therein</citphrase>
<citphrase id="cp7.6">cited from="[1980] FCA 96">whether it was open to the tribunal as the tribunal of fact to conclude that the vehicles were "lifting machinery" within the tariff</citphrase>
<citphrase id="cp7.7">cited from="[1980] FCA 96">consideration of the question of whether the vehicles were imported in an incomplete or unfinished state and, if so, had the essential character of lifting machinery</citphrase>
<citphrase id="cp7.8">cited from="[1980] FCA 96">observations on what amounts to a question of law and the circumstances in which the court will interfere with the decision of an administrative tribunal whose decisions on questions of fact are final</citphrase>
<citphrase id="cp7.9">cited from="[1980] FCA 96">customs tariff 1966, paragraphs 84.23.311 and 84.22.521 of part ii of first schedule, interpretative rule 2(1)(a) and notes 2 and 7 to chapter 87 of part ii of first schedule.  customs and excise</citphrase>
<citphrase id="cp7.10">cited from="[1980] FCA 96">duty on imported vehicles</citphrase>
<citphrase id="cp7.11">cited from="[1980] FCA 96">whether lifting machinery</citphrase>
<citphrase id="cp7.12">cited from="[1980] FCA 96">whether incomplete or unfinished state having essential characteristics of lifting machinery</citphrase>
<citphrase id="cp7.13">cited from="[1980] FCA 96">whether derivatives of agricultural tractors</citphrase>
<citphrase id="cp7.14">cited from="[1980] FCA 96">decisions of administrative appeals tribunal</citphrase>
<citphrase id="cp7.15">cited from="[1980] FCA 96">whether questions of law raised</citphrase>
<citphrase id="cp7.16">cited from="[1980] FCA 96">"derivative"</citphrase>
<citphrase id="cp7.17">cited from="[1980] FCA 96">"essential character"</citphrase>
<citphrase id="cp7.18">cited from="[1980] FCA 96">"hauling"</citphrase>
<citphrase id="cp7.19">cited from="[1980] FCA 96">customs tariff 1966. first schedule, pt i interpretative r. 2 (1) (a); pt ii pars. 84.23.311, 84.22.521, 87.01.31; pt ii ch. 87 notes 2, 7</citphrase>
<citphrase id="cp7.20">cited from="[1980] FCA 96">administrative appeals tribunal act 1975 (cth), s. 44. the applicant appealed to the administrative appeals tribunal against the assessment by the respondent of the customs duty payable in respect of four vehicles it had imported. the tribunal decided that the vehicles were properly classified under par. 84.22.521 of the customs tariff 1966. item 84.22 referred to "lifting, handling, loading or unloading machinery", par. 84.22.52 referred to "other machinery . . ." and par. 84.22.521 referred to machinery within par. 84.22.52 which did not have a working weight of more than fifty tonnes. the tribunal in reaching those decisions applied interpretative r. 2 (1) (a) of the customs tariff to conclude that the vehicles were imported in an incomplete or unfinished state but had the essential character of goods described in par. 84.22.521. the applicant contended that the vehicles came within par. 87.01.31 of the tariff which referred to: "agricultural wheeled tractors and other wheeled tractors that are derivatives of agricultural tractors."  on appeal.  held: per curiam</citphrase>
<citphrase id="cp7.21">cited from="[1980] FCA 96">(1) the appeal being limited to a question of law pursuant to s. 44 of the administrative appeals tribunal act 1975 , the applicant had to demonstrate that the evidence was such that the vehicles must fall within the words of the paragraph it relied on. currie v. commissioners of inland revenue, (1921) 2 kb 332 ; lombardo v. federal commissioner of taxation [1979] fca 66 ; (1979), 40 flr 208 , referred to.  per fisher j.</citphrase>
<citphrase id="cp7.22">cited from="[1980] FCA 96">quaere whether any decision of an administrative body such as the tribunal can be said to involve a question of law because it is based on insufficient evidence.  federal commissioner of taxation v. miller [1946] hca 23 ; (1946), 73 clr 93 , referred to.  (2) the vehicles did not fall within par. 87.01.31 of the tariff because:  per smithers j.</citphrase>
<citphrase id="cp7.23">cited from="[1980] FCA 96">they were not constructed essentially for hauling or pushing within the meaning given to "tractor" by note 2 to ch. 87. the vehicles were a derivative of an agricultural tractor within the meaning of par. 87.01.31.  per fisher and sheppard jj.</citphrase>
<citphrase id="cp7.24">cited from="[1980] FCA 96">the vehicles had not been developed from an actual existing agricultural tractor, it being insufficient that the vehicles were modelled upon something which in former times was an agricultural tractor or part thereof.  (3) per fisher and sheppard jj., smithers j. dissenting</citphrase>
<citphrase id="cp7.25">cited from="[1980] FCA 96">on the evidence taking into account the intrinsic nature of the vehicles themselves at the date of importation, it was open to the tribunal to conclude that the vehicles were imported in an incomplete state and had the essential character of lifting machinery.  per smithers j.</citphrase>
<citphrase id="cp7.26">cited from="[1980] FCA 96">the machines were incomplete in so significant a respect that within the meaning of interpretative r. 2 (1) (a) they could not be said to have the essential character of lifting machinery and the tribunal's decision to the contrary involved an error of law. (4) appeal dismissed.  hearing  sydney, 1980, february 21-22; august 22. 22:8:1980</citphrase>
<citphrase id="cp8.0">cited from="[1975] HCA 17">mining and minerals</citphrase>
<citphrase id="cp8.1">cited from="[1975] HCA 17">mining lease</citphrase>
<citphrase id="cp8.2">cited from="[1975] HCA 17">hearing of application and objections</citphrase>
<citphrase id="cp8.3">cited from="[1975] HCA 17">duties of mining warden</citphrase>
<citphrase id="cp8.4">cited from="[1975] HCA 17">duty to recommend to minister rejection of application if of opinion that public interest would be prejudicially affected by grant</citphrase>
<citphrase id="cp8.5">cited from="[1975] HCA 17">application for lease of 1100 acres</citphrase>
<citphrase id="cp8.6">cited from="[1975] HCA 17">evidence that minerals existed under only sixty acres of area covered by application</citphrase>
<citphrase id="cp8.7">cited from="[1975] HCA 17">whether views of a section of the public capable of showing prejudice to public interest</citphrase>
<citphrase id="cp8.8">cited from="[1975] HCA 17">whether apart from objections compliance with formalities of application entitles grant of recommendation</citphrase>
<citphrase id="cp8.9">cited from="[1975] HCA 17">mining regulations of 1971 (q.), reg. 39 (2) (a)*.</citphrase>
<citphrase id="cp9.0">citing from="[2011] FCA 36">administrative law</citphrase>
<citphrase id="cp9.1">citing from="[2011] FCA 36">appeal from decision of administrative appeals tribunal</citphrase>
<citphrase id="cp9.2">citing from="[2011] FCA 36">where applicant's application for re-registration as a registered tax agent refused under s 251jc of the income tax assessment act 1936 (cth)</citphrase>
<citphrase id="cp9.3">citing from="[2011] FCA 36">where tribunal correctly applied the test under s 251jc</citphrase>
<citphrase id="cp9.4">citing from="[2011] FCA 36">where tribunal correctly evaluated evidence when considering whether tax agent was a fit and proper person</citphrase>
<citphrase id="cp10.0">citing from="[2010] FCA 356">administrative law</citphrase>
<citphrase id="cp10.1">citing from="[2010] FCA 356">appeal from decision of the administrative appeals tribunal</citphrase>
<citphrase id="cp10.2">citing from="[2010] FCA 356">where applicant's application for re-registration as a registered tax agent refused under s 251jc of the income tax assessment act 1936 (cth)</citphrase>
<citphrase id="cp10.3">citing from="[2010] FCA 356">whether tribunal failed to correctly apply the test under s 251jc</citphrase>
<citphrase id="cp11.0">citing from="[2009] AATA 766">tax agents</citphrase>
<citphrase id="cp11.1">citing from="[2009] AATA 766">application for re-registration</citphrase>
<citphrase id="cp11.2">citing from="[2009] AATA 766">fit and proper person</citphrase>
<citphrase id="cp11.3">citing from="[2009] AATA 766">whether applicant a fit and proper person to prepare tax returns and transact business on behalf of taxpayer</citphrase>
<citphrase id="cp11.4">citing from="[2009] AATA 766">obligations of a tax agent</citphrase>
<citphrase id="cp11.5">citing from="[2009] AATA 766">failure to lodge tax returns</citphrase>
<citphrase id="cp11.6">citing from="[2009] AATA 766">whether special circumstances exist</citphrase>
<citphrase id="cp11.7">citing from="[2009] AATA 766">meaning of 'special circumstances'</citphrase>
<citphrase id="cp11.8">citing from="[2009] AATA 766">decision under review affirmed</citphrase>
<citphrase id="cp12.0">citing from="[2009] AATA 603">income tax assessment act</citphrase>
<citphrase id="cp12.1">citing from="[2009] AATA 603">applicant's registration as a tax agent was not renewed</citphrase>
<citphrase id="cp12.2">citing from="[2009] AATA 603">applicant failed to lodge his personal tax returns</citphrase>
<citphrase id="cp12.3">citing from="[2009] AATA 603">applicant suffered depression and claimed he was burdened with heavy responsibilities</citphrase>
<citphrase id="cp12.4">citing from="[2009] AATA 603">applicant prioritised his clients' tax returns before his own</citphrase>
<citphrase id="cp12.5">citing from="[2009] AATA 603">whether the applicant's circumstances amounted to 'special circumstances'</citphrase>
<citphrase id="cp12.6">citing from="[2009] AATA 603">whether the applicant is of good fame, integrity and character</citphrase>
<citphrase id="cp12.7">citing from="[2009] AATA 603">no special circumstances</citphrase>
<citphrase id="cp12.8">citing from="[2009] AATA 603">tribunal not satisfied applicant will lodge future tax returns on time</citphrase>
<citphrase id="cp12.9">citing from="[2009] AATA 603">decision under review affirmed</citphrase>
<citphrase id="cp13.0">citing from="[2008] FCA 1796">administrative law</citphrase>
<citphrase id="cp13.1">citing from="[2008] FCA 1796">appeal from decision of administrative appeals tribunal</citphrase>
<citphrase id="cp13.2">citing from="[2008] FCA 1796">where applicant's application for re-registration as a registered tax agent refused under s 251jc of the income tax assessment act 1936 (cth)</citphrase>
<citphrase id="cp13.3">citing from="[2008] FCA 1796">where tribunal failed to correctly apply test under s 251jc</citphrase>
<citphrase id="cp13.4">citing from="[2008] FCA 1796">where tribunal failed to correctly evaluate evidence when considering whether tax agent was a fit and proper person</citphrase>
<citphrase id="cp14.0">citing from="[2008] AATA 707">corporations</citphrase>
<citphrase id="cp14.1">citing from="[2008] AATA 707">financial services</citphrase>
<citphrase id="cp14.2">citing from="[2008] AATA 707">duty to perform "efficiently, honestly and fairly"</citphrase>
<citphrase id="cp14.3">citing from="[2008] AATA 707">prohibition on misleading or deceptive conduct</citphrase>
<citphrase id="cp14.4">citing from="[2008] AATA 707">securities adviser banned by asic from providing any financial services for a three year period</citphrase>
<citphrase id="cp14.5">citing from="[2008] AATA 707">unsecured lenders referred to non-approved competing investment products</citphrase>
<citphrase id="cp14.6">citing from="[2008] AATA 707">misleading 'exclusive offer' emails</citphrase>
<citphrase id="cp14.7">citing from="[2008] AATA 707">managed funds and property development</citphrase>
<citphrase id="cp14.8">citing from="[2008] AATA 707">deeds of loan entered into by lenders contained no guarantee</citphrase>
<citphrase id="cp14.9">citing from="[2008] AATA 707">protection provided by a caveatable interest over listed properties was illusory</citphrase>
<citphrase id="cp14.10">citing from="[2008] AATA 707">absence of reasonable basis for applicant to make a recommendation in connection with a securities dealing</citphrase>
<citphrase id="cp14.11">citing from="[2008] AATA 707">reasonable expectation that lenders relied upon recommendation</citphrase>
<citphrase id="cp14.12">citing from="[2008] AATA 707">contravention and failure to perform duties</citphrase>
<citphrase id="cp14.13">citing from="[2008] AATA 707">the decision under review is affirmed.    corporations act 2001</citphrase>
<citphrase id="cp14.14">citing from="[2008] AATA 707">ss 9 , 92 , 94, 829, 830, 849, 851, 920a , 995, 1405 , 1444   real property act 1919 (nsw)</citphrase>
<citphrase id="cp14.15">citing from="[2008] AATA 707">s 74f</citphrase>
<citphrase id="cp15.0">citing from="[2008] AATA 641">insurance</citphrase>
<citphrase id="cp15.1">citing from="[2008] AATA 641">prudential regulation</citphrase>
<citphrase id="cp15.2">citing from="[2008] AATA 641">fit and proper person</citphrase>
<citphrase id="cp15.3">citing from="[2008] AATA 641">applicant disqualified by apra from holding a senior insurance role</citphrase>
<citphrase id="cp15.4">citing from="[2008] AATA 641">no statutory or fiduciary obligation on applicant as director to disclose his personal interest in transaction</citphrase>
<citphrase id="cp15.5">citing from="[2008] AATA 641">voluntary partial disclosure by applicant of his personal interest does not affect his fitness to hold a senior insurance role</citphrase>
<citphrase id="cp15.6">citing from="[2008] AATA 641">tribunal rejected apra's claim that applicant was involved in authorising a transaction which affects his fitness to act in a senior insurance role</citphrase>
<citphrase id="cp15.7">citing from="[2008] AATA 641">tribunal rejected apra's claim that the applicant's encouragement of payment to a creditor in which he had a material personal interest affects his fitness to act in a senior insurance role</citphrase>
<citphrase id="cp15.8">citing from="[2008] AATA 641">the decision under review is set aside    insurance act 1973</citphrase>
<citphrase id="cp15.9">citing from="[2008] AATA 641">sections 2a , 24 , 25 , 25a , 26 , 126   corporations law (before 13 march 2000)</citphrase>
<citphrase id="cp15.10">citing from="[2008] AATA 641">sections 231, 232a, 235, 236, 242</citphrase>
<citphrase id="cp16.0">citing from="[2008] FCA 703">administrative law</citphrase>
<citphrase id="cp16.1">citing from="[2008] FCA 703">appeal from administrative appeals tribunal</citphrase>
<citphrase id="cp16.2">citing from="[2008] FCA 703">meaning of "fit and proper person to prepare tax returns"</citphrase>
<citphrase id="cp16.3">citing from="[2008] FCA 703">whether tribunal misconstrued meaning of "fit and proper"</citphrase>
<citphrase id="cp16.4">citing from="[2008] FCA 703">whether tribunal failed to have regard to the test in briginshaw v briginshaw [1938] hca 34 ; (1938) 60 clr 336</citphrase>
<citphrase id="cp16.5">citing from="[2008] FCA 703">whether the tribunal took into account irrelevant considerations</citphrase>
<citphrase id="cp16.6">citing from="[2008] FCA 703">whether decision of tribunal otherwise unreasonable.</citphrase>
<citphrase id="cp17.0">citing from="[2008] AATA 262">tax agents</citphrase>
<citphrase id="cp17.1">citing from="[2008] AATA 262">application for re-registration</citphrase>
<citphrase id="cp17.2">citing from="[2008] AATA 262">"fit and proper person"</citphrase>
<citphrase id="cp17.3">citing from="[2008] AATA 262">whether applicant a fit and proper person to prepare tax returns and transact business on behalf of taxpayer</citphrase>
<citphrase id="cp17.4">citing from="[2008] AATA 262">public protection</citphrase>
<citphrase id="cp17.5">citing from="[2008] AATA 262">obligations of a tax agent</citphrase>
<citphrase id="cp17.6">citing from="[2008] AATA 262">failure to lodge tax returns</citphrase>
<citphrase id="cp17.7">citing from="[2008] AATA 262">whether special circumstances exist</citphrase>
<citphrase id="cp17.8">citing from="[2008] AATA 262">decision affirmed.    practice  procedure</citphrase>
<citphrase id="cp17.9">citing from="[2008] AATA 262">whether relevant date to satisfy re-registration criteria time of application, board's decision or time of the tribunal's review</citphrase>
<citphrase id="cp17.10">citing from="[2008] AATA 262">difference between an application for registration and re-registration</citphrase>
<citphrase id="cp17.11">citing from="[2008] AATA 262">merits to be reviewed at the time of the board's decision.</citphrase>
<citphrase id="cp18.0">citing from="[2007] AATA 1492">tax agents</citphrase>
<citphrase id="cp18.1">citing from="[2007] AATA 1492">cancellation of registration</citphrase>
<citphrase id="cp18.2">citing from="[2007] AATA 1492">application for re-registration</citphrase>
<citphrase id="cp18.3">citing from="[2007] AATA 1492">whether applicant a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters</citphrase>
<citphrase id="cp18.4">citing from="[2007] AATA 1492">whether applicant of good fame, integrity and character</citphrase>
<citphrase id="cp18.5">citing from="[2007] AATA 1492">whether applicant neglected business of principals</citphrase>
<citphrase id="cp18.6">citing from="[2007] AATA 1492">applicant neglected business of 2 principals</citphrase>
<citphrase id="cp18.7">citing from="[2007] AATA 1492">applicant a fit and proper person</citphrase>
<citphrase id="cp18.8">citing from="[2007] AATA 1492">decision set aside and remitted to the respondent for consideration of the application for re-registration on the basis that applicant satisfies s 251jc(1)(a)(i) of the itaa 1936    income tax assessment act 1936</citphrase>
<citphrase id="cp18.9">citing from="[2007] AATA 1492">ss 251bc(1)(d), 251c, 251j, 251ja, 251jc(1) (a) (i), (4), 251k(2)(b)(i), (2)(d), (3)(c), 251l, 251n(1)(b)   taxation administration act 1953</citphrase>
<citphrase id="cp18.10">citing from="[2007] AATA 1492">s8c(1)(a)   migration act 1958</citphrase>
<citphrase id="cp18.11">citing from="[2007] AATA 1492">s292</citphrase>
<citphrase id="cp19.0">citing from="[2007] AATA 1383">corporations law</citphrase>
<citphrase id="cp19.1">citing from="[2007] AATA 1383">psychotic illness</citphrase>
<citphrase id="cp19.2">citing from="[2007] AATA 1383">not a fit and proper person to remain registered as a liquidator</citphrase>
<citphrase id="cp19.3">citing from="[2007] AATA 1383">ability to manage affairs</citphrase>
<citphrase id="cp19.4">citing from="[2007] AATA 1383">ability to participate effectively in the conduct of proceedings</citphrase>
<citphrase id="cp19.5">citing from="[2007] AATA 1383">whether illness exacerbated or prolonged by proceedings</citphrase>
<citphrase id="cp19.6">citing from="[2007] AATA 1383">relevance of illness to past conduct</citphrase>
<citphrase id="cp20.0">citing from="[2007] AATA 1335">tax agents</citphrase>
<citphrase id="cp20.1">citing from="[2007] AATA 1335">re-registration denied</citphrase>
<citphrase id="cp20.2">citing from="[2007] AATA 1335">whether person "not of good fame, integrity and character"</citphrase>
<citphrase id="cp20.3">citing from="[2007] AATA 1335">conviction of a "serious taxation offence" during the previous 5 years</citphrase>
<citphrase id="cp20.4">citing from="[2007] AATA 1335">"special circumstances"</citphrase>
<citphrase id="cp20.5">citing from="[2007] AATA 1335">whether person "not a fit and proper person"</citphrase>
<citphrase id="cp20.6">citing from="[2007] AATA 1335">decision affirmed.</citphrase>
</citphrases>
<citances>
<sentence from="[2011] FCA 36" id="cs0">An appeal under s 44 of the of the AAT Act is concerned solely with a question of law, which is not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself (see eg Toohey v Tax Agents' Board of Victoria [2007] FCA 431 ; (2007) 67 ATR 522 ; and TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 per Gummow J).  As I stated in my earlier judgment of Toohey v Tax Agents' Board of Victoria ; [2007] FCA 431 ; (2007) 67 ATR 522 , at [9]:

 ... the Board is required, in essence, to consider and determine whether the applicant is the prescribed fit and proper person. In determining the matter, the Board is directed by the legislature that a disqualifying factor for a person not being the prescribed fit and proper person is, relevantly, if the person is not of 'good fame, integrity and character': s 251BC(1)(d)... The enquiry is whether the applicant is the prescribed fit and proper person, and the disqualifying factors set out in s 251BC(1) do not limit the generality of that enquiry (see s 251JC(1)), although it may well inform that inquiry. The fact that a person is not of good fame, integrity and character means that that person cannot be regarded as the prescribed fit and proper person. However, even if this or other disqualifying factors do not apply, the applicant may still not satisfy the Board that he or she is the prescribed fit and proper person. If not satisfied, the Board 'shall refuse' to re-register the applicant: s 251JC(2).

  In deciding the 'ultimate issue' of whether the applicant is a fit and proper person, the Tribunal must take into account all the material concerning the ultimate issue, and place that material in the context of the matters relied up by the appellant. As I set out in Toohey v Tax Agents' Board of Victoria [2007] FCA 431 ; (2007) 67 ATR 522 , at [16]:

 In determining whether a person is a fit and proper person the enquiry is directed not only to whether improper conduct has occurred, but whether it is likely to occur again, and whether the community will have confidence that it will not occur.

 </sentence>
<sentence from="[2010] FCA 356" id="cs1">The background to the relevant legislation has already been dealt with by me in earlier proceedings: see Toohey [2007] FCA 431 ; [2007] 67 ATR 522.  On 21 March 2007, the Court allowed the appeal and remitted the matter to the Tribunal: see Toohey v Tax Agents' Board of Victoria [2007] FCA 431 ; [2007] 67 ATR 522 ('the first appeal'). </sentence>
<sentence from="[2009] AATA 766" id="cs2">The question for the Tribunal is whether it is satisfied that the circumstances in which the misconduct leading to the convictions occurred should be considered 'special circumstances'. The meaning of the expression 'special circumstances' was referred to by Middleton J in Toohey (formerly identified as 'VBY') v Tax Agents' Board of Victoria (2007) 171 FCR 291 ; [2007] FCA 431 , at [27], citing the decision in Re Beadle and Director-General of Social Security (1984) 1 AAR 362 ; (1984) 6 ALD 1 at 3:

 An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.

 </sentence>
<sentence from="[2009] AATA 603" id="cs3">A person who is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers can be registered as a tax agent. Section 251BC(1) of the Act sets out the factors which may lead to person being denied registration, or re-registration, as a tax agent. These include a person not being of good fame and character [36] and having a conviction for a serious tax offence within the previous five year period. [37] The disqualifying circumstances do not limit the matters which can be considered but, as pointed out in the first Federal Court decision in this matter, they may inform the decision maker. [38] The applicable date to be considered is not that date on which the Board made its decision, but the date on which the Tribunal delivers its decision: Shi v Migration Agents' Registration Authority. [39] In this case the time is now five years after the original decision was made. As may be expected the applicant's circumstances have changed over that five year period and the circumstances with which this Tribunal must deal are different, in some respects, from those facing the Board in 2004 and the Tribunal in its two previous decisions. The historically established facts, of course, remain constant, for example, the applicant's conviction for failing to lodge his income tax return for the 1989 tax year and his failure to respond to the respondent's requests that he file outstanding tax returns. What has changed is said to relate to the applicant's physical and mental health, which it is claimed adversely affected the manner in which he conducted his affairs including his professional affairs as a tax agent in the period leading up to 2004 tax year. </sentence>
<sentence from="[2008] FCA 1796" id="cs4">2 The background to the relevant legislation has already been dealt with by me in earlier proceedings involving the parties: see Toohey v Tax Agents' Board of Victoria [2007] FCA 431 ; (2007) 67 ATR 522. </sentence>
<sentence from="[2008] AATA 707" id="cs5">The banning power conferred by Corporations Law s 829, and many similar statutory powers, are frequently described as being wholly protective in their purpose: Statements to this effect commonly appear in decisions involving legal practitioners: Smith v New South Wales Bar Association [1992] HCA 36 ; (1992) 176 CLR 256 at 270; Wentworth v New South Wales Bar Association [1992] HCA 24 ; (1992) 176 CLR 239 at 250-251; medical practitioners: Health Care Complaints Commission v Lichfield (1997) 41 NSWLR 630 at 637F-638B; tax agents registered under the Income Tax Assessment Act 1936 : see Dahia v Tax Agents Board of Victoria (1997) 36 ATR 1124 ; Toohey v Tax Agents Board of Victoria [2007] FCA 431 ; company directors and managers: ASIC v Adler [2002] NSWSC 483 ; (2002) 42 ACSR 80 at [56] ; Kamha v APRA [2005] FCAFC 248 ; (2005) 147 FCR 516 at [73] --- [74]; and auditors and liquidators: Albarran v Members of the Companies Auditors  Liquidators Disciplinary Board [2006] FCAFC 69 ; (2006) 151 FCR 466. </sentence>
<sentence from="[2008] AATA 641" id="cs6">The purpose of the "fit and proper" criterion is frequently described as being entirely protective. Statements to this effect commonly appear in decisions involving the admission or licensing of legal practitioners: see Clyne v New South Wales Bar Association [1960] HCA 40 ; (1960) 104 CLR 186 at 201-202; New South Wales Bar Association v Evatt [1968] HCA 20 ; (1968) 117 CLR 177 at 183-184; Smith v New South Wales Bar Association [1992] HCA 36 ; (1992) 176 CLR 256 at 270; Wentworth v New South Wales Bar Association [1992] HCA 24 ; (1992) 176 CLR 239 at 250-251. The same protective function is avowed in relation to the licensing of other professionals: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637F-638B (sexual misconduct by doctor); Health Care Complaints Commission v Abou Hatoum [2004] NSWCA 30 at [6] ; as well as in the case of tax agents registered under the Income Tax Assessment Act 1936 : see Dahia v Tax Agents' Board of Victoria (1997) 36 ATR 1124 ; Toohey (formerly identified as 'VBY') v Tax Agents' Board of Victoria [2007] FCA 431 ; and the disqualification of persons from acting as company managers: ASIC v Adler [2002] NSWSC 483 ; (2002) 42 ACSR 80 at [56] . In the case of the disqualification power conferred by s 25A of the Insurance Act 1973 , the protective nature of the power is underscored by the provisions of sections 2A and 26 of the Act: Kamha v APRA [2005] FCAFC 248 ; (2005) 147 FCR 516 at [73] --- [74]. Section 2A describes protection of policy holders as the main object of the Act. Section 26 permits APRA to determine that a person, who would otherwise be disqualified, is not a disqualified person, if APRA is satisfied the person is highly unlikely to be a prudential risk. </sentence>
<sentence from="[2008] FCA 703" id="cs7">41 I do not see any error in the AAT's approach, whatever expression of principle was to be applied. The AAT heard all the evidence. Its conclusions were directed fundamentally to the lack of integrity of the applicant. Any textual differences between the reasons of Branson J in Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd [2004] FCA 843 ; (2004) 138 FCR 428 and Middleton J in Toohey [2007] FCA 431 are made irrelevant by the nature of the enquiry and the AAT's conclusions. The Senior Member, in examining past conduct and considering contested evidence, found a lack of truthfulness in the applicant and a proven lack of integrity. Any overlooking by the Senior Member of a late nomination by the applicant at the date of the AAT review was of no operative consequence to the decision.
  40 The applicant fixed upon the content of [6] of the AAT's reasons (see [15] above) in asserting an error based on what Middleton J said in Toohey v Tax Agents' Board of Victoria [2007] FCA 431. </sentence>
<sentence from="[2008] AATA 262" id="cs8">2. In a decision given on 8 February 2006, the Tribunal affirmed the decision. On 21 March 2007, Middleton J allowed an appeal from the Tribunal's decision and set it aside. He remitted it to a differently constituted Tribunal. [2] I have decided to affirm the decision.

 </sentence>
<sentence from="[2007] AATA 1492" id="cs9">[7] 27 April 2006; pages 161-164 of Exhibit 3. [8] (2006) ATC 2044 at par [40]- [46]. See now Toohey v Tax Agents' Board of Victoria [2007] FCA 431 ; (2007) 94 ALD 521 where the decision of the Tribunal was set aside. [9] (1982) 61 FLR 1 at p 5. [10] [2007] FCAFC 59. A question arises however as to the timing of some of the matters relied upon by the Board under this heading. Some of them are matters that arose after the date of the Board's decision but before the hearing. Shi v Migration Agents' Registration Authority [10] is very recent authority for the proposition that in considering a decision to cancel the registration of a migration agent the Tribunal is not entitled to take into account evidence of events occurring after the date of the Authority's decision except to the extent that that evidence might have cast light upon the decision as at that date. In Toohey v Tax Agents' Board of Victoria [11] , decided before Shi, Middleton J said this:
"In view of s 43(1) of the [Administrative Appeals Tribunal Act], where the matter comes before the Tribunal, the Tribunal must be satisfied that the applicant is the prescribed fit and proper person at the time of the Tribunal's determination. In reaching its decision, the Tribunal should consider for itself, as though it was performing the function of the relevant decision-maker, whether the applicant has satisfied the Tribunal he or she was the prescribed fit and proper person. "
 </sentence>
<sentence from="[2007] AATA 1383" id="cs10">The purpose of the "fit and proper" criterion in the context of the licensing of legal practitioners has been described as entirely protective: see Clyne v New South Wales Bar Association [1960] HCA 40 ; (1960) 104 CLR 186 at 201-202; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184; Smith v New South Wales Bar Association [1992] HCA 36 ; (1992) 176 CLR 256 at 270; Wentworth v New South Wales Bar Association [1992] HCA 24 ; (1992) 176 CLR 239 at 250-251. It serves essentially the same function in the case of the licensing of other professionals: Health Care Complaints Commission v Lichfield (1997) 41 NSWLR 630 at 637F-638B (sexual misconduct by doctor); Health Care Complaints Commission v Lichfield (1997) 41 NSWLR 630 at [6]; as well as in the case of tax agents registered under the Income Tax Assessment Act 1936 : see Dahia v Tax Agents Board of Victoria (1997) 36 ATR 1124 ; Toohey v Tax Agents Board of Victoria [2007] FCA 431. </sentence>
<sentence from="[2007] AATA 1335" id="cs11">The decision in Re VBY was considered, on appeal, in the Federal Court in Toohey v Tax Agents Board of Victoria [2007] FCA 431. There, Middleton J allowed the appeal by Mr Toohey and remitted the matter to a differently constituted Tribunal for reconsideration. Briefly, the learned Judge found that that Tribunal did not address the ultimate issue for consideration and determination (ie whether Mr Toohey was the "prescribed fit and proper person"), but only considered the question of the operation of s 251BC(3).</sentence>
</citances>
<legistitles>
<title id="l0">ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 </title>
<title id="l1">ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 - SECT 44 Appeals to Federal Court of Australia from decisions of the Tribunal</title>
<title id="l2">CRIMES ACT 1914 </title>
<title id="l3">CRIMES ACT 1914 - SECT 85ZV Spent convictions</title>
<title id="l4">CRIMES ACT 1914 - SECT 85ZW Effect of right of non-disclosure</title>
<title id="l5">CRIMES ACT 1914 - SECT 85ZZH Exclusions</title>
<title id="l6">INCOME TAX ASSESSMENT ACT 1936 </title>
<title id="l7">TAXATION ADMINISTRATION ACT 1953 </title>
<title id="l8">TAXATION ADMINISTRATION ACT 1953 - SECT 8C Failure to comply with requirements under taxation law</title>
<title id="l9">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2007] FCA 1823">costs</citphrase>
<citphrase id="cp0.1">cited from="[2007] FCA 1823">indemnity costs</citphrase>
<citphrase id="cp0.2">cited from="[2007] FCA 1823">misconduct of respondents</citphrase>
<citphrase id="cp0.3">cited from="[2007] FCA 1823">undue prolongation of defence.  costs</citphrase>
<citphrase id="cp0.4">cited from="[2007] FCA 1823">time for taxation of costs</citphrase>
<citphrase id="cp0.5">cited from="[2007] FCA 1823">departure from general rule in federal court rules order 62 r 3(3)</citphrase>
<citphrase id="cp0.6">cited from="[2007] FCA 1823">time for payment of costs</citphrase>
<citphrase id="cp0.7">cited from="[2007] FCA 1823">o 62 r 3(2)</citphrase>
<citphrase id="cp0.8">cited from="[2007] FCA 1823">costs to be paid forthwith.  orders</citphrase>
<citphrase id="cp0.9">cited from="[2007] FCA 1823">stay of orders for taxation and payment of costs pending disposition of application for leave to appeal and any appeal.</citphrase>
<citphrase id="cp1.0">cited from="[2007] FCA 974">costs</citphrase>
<citphrase id="cp1.1">cited from="[2007] FCA 974">whether proceedings of such a nature as to persuade the court to exercise discretion to depart from the ordinary rule as to costs</citphrase>
<citphrase id="cp1.2">cited from="[2007] FCA 974">substantive proceedings concerned the issue of locus standi of incorporated association to bring an action pursuant to the disability discrimination act 1992 (cth)</citphrase>
<citphrase id="cp1.3">cited from="[2007] FCA 974">whether success in part</citphrase>
<citphrase id="cp1.4">cited from="[2007] FCA 974">whether proceedings in the public interest</citphrase>
<citphrase id="cp1.5">cited from="[2007] FCA 974">conduct of the parties</citphrase>
<citphrase id="cp2.0">cited from="[2007] FCA 903">costs</citphrase>
<citphrase id="cp2.1">cited from="[2007] FCA 903">indemnity costs</citphrase>
<citphrase id="cp2.2">cited from="[2007] FCA 903">application by respondent for indemnity costs</citphrase>
<citphrase id="cp2.3">cited from="[2007] FCA 903">where applicant failed to comply with orders of court requiring applicant to file certain documents in preparation for trial</citphrase>
<citphrase id="cp2.4">cited from="[2007] FCA 903">where respondents brought notice of motion seeking orders in relation to applicant's non-compliance</citphrase>
<citphrase id="cp2.5">cited from="[2007] FCA 903">where commencement of trial adjourned</citphrase>
<citphrase id="cp2.6">cited from="[2007] FCA 903">where applicant's failure to file documents the principal reason for adjournment of trial</citphrase>
<citphrase id="cp2.7">cited from="[2007] FCA 903">circumstances in which court may vary ordinary rule as to costs</citphrase>
<citphrase id="cp2.8">cited from="[2007] FCA 903">whether applicant's conduct warrants special order as to costs.  costs</citphrase>
<citphrase id="cp2.9">cited from="[2007] FCA 903">application for costs to be paid before conclusion of principal proceeding</citphrase>
<citphrase id="cp2.10">cited from="[2007] FCA 903">whether appropriate to depart from general rule in o 62, r 3(3). practice and procedure</citphrase>
<citphrase id="cp2.11">cited from="[2007] FCA 903">guillotine orders</citphrase>
<citphrase id="cp2.12">cited from="[2007] FCA 903">where respondents seek order pursuant to o 35a that proceedings be stayed or dismissed if applicant does not comply with another order of court</citphrase>
<citphrase id="cp2.13">cited from="[2007] FCA 903">whether such order appropriate in circumstances</citphrase>
<citphrase id="cp2.14">cited from="[2007] FCA 903">relevant principles.  held: applicant's failure to comply with orders of court do not amount to misconduct</citphrase>
<citphrase id="cp2.15">cited from="[2007] FCA 903">applicant's conduct does not warrant special order as to costs</citphrase>
<citphrase id="cp2.16">cited from="[2007] FCA 903">costs to be paid on a party and party basis</citphrase>
<citphrase id="cp2.17">cited from="[2007] FCA 903">no inference that applicant's failure to comply with orders part of a delaying strategy</citphrase>
<citphrase id="cp2.18">cited from="[2007] FCA 903">no reason to order payment of costs before conclusion of principal proceeding</citphrase>
<citphrase id="cp2.19">cited from="[2007] FCA 903">not appropriate circumstances for making of guillotine order</citphrase>
<citphrase id="cp2.20">cited from="[2007] FCA 903">respondents' application for order pursuant to o 35a dismissed.</citphrase>
<citphrase id="cp3.0">cited from="[2007] FCA 179">costs</citphrase>
<citphrase id="cp3.1">cited from="[2007] FCA 179">action summarily dismissed</citphrase>
<citphrase id="cp3.2">cited from="[2007] FCA 179">unreasonable to have subjected the respondents to the expenditure of costs</citphrase>
<citphrase id="cp4.0">cited from="[2005] FCA 971">costs</citphrase>
<citphrase id="cp4.1">cited from="[2005] FCA 971">indemnity costs</citphrase>
<citphrase id="cp4.2">cited from="[2005] FCA 971">solicitor and client costs</citphrase>
<citphrase id="cp4.3">cited from="[2005] FCA 971">exercise of discretion to award costs</citphrase>
<citphrase id="cp4.4">cited from="[2005] FCA 971">factors to be taken into account in making a special order as to costs</citphrase>
<citphrase id="cp4.5">cited from="[2005] FCA 971">whether history of matter disclosed special or unusual features so as to warrant an award of indemnity or solicitor and client costs</citphrase>
<citphrase id="cp4.6">cited from="[2005] FCA 971">whether applicant failed to recognise that its application would inevitably fail</citphrase>
<citphrase id="cp4.7">cited from="[2005] FCA 971">whether applicant's refusal of offer of compromise was unreasonable or imprudent</citphrase>
<citphrase id="cp4.8">cited from="[2005] FCA 971">whether proceedings were commenced for an improper purpose</citphrase>
<citphrase id="cp4.9">cited from="[2005] FCA 971">whether conduct of proceedings was inappropriate</citphrase>
<citphrase id="cp5.0">cited from="[2005] FCA 793">practice and procedure</citphrase>
<citphrase id="cp5.1">cited from="[2005] FCA 793">costs</citphrase>
<citphrase id="cp5.2">cited from="[2005] FCA 793">whether costs follow the event</citphrase>
<citphrase id="cp5.3">cited from="[2005] FCA 793">purpose of costs order</citphrase>
<citphrase id="cp5.4">cited from="[2005] FCA 793">factors relevant to the exercise of court's discretion in making costs order.</citphrase>
<citphrase id="cp6.0">cited from="[1993] FCA 536">costs</citphrase>
<citphrase id="cp6.1">cited from="[1993] FCA 536">application that respondent's costs of certain issues be paid on indemnity basis</citphrase>
<citphrase id="cp6.2">cited from="[1993] FCA 536">discussion of applicable principles.</citphrase>
</citphrases>
<citances>
</citances>
<legistitles>
<title id="l0">FEDERAL COURT RULES </title>
</legistitles>
</case>