Case: SGFB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 422
Outcome: referred to
The relationship between s 5(1)(h) and s 5(3) has been the subject of a good deal of debate in the authorities: Bond at 355-358 per Mason CJ; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 (" Rajamanikkam "); SGFB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 422 (" SGFB ") at [17]-[21] per von Doussa, O'Loughlin and Selway JJ; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002 [2003] HCA 1 ; (2002) 211 CLR 441 at 458 [35] - [36] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ. Rajamanikkam and SGFB dealt with provisions in the then Migration Act 1958 (Cth) which were in similar terms to s 5(1)(h) and s 5(3) of the ADJR Act and, in Rajamanikkam , the Justices made it clear that their analysis also applied to the ADJR Act provisions: at 226 [1], 234 [32]-[34] per Gleeson CJ at 240 [54] per Gaudron and McHugh JJ and at 244 [74] and 255 [110] per Kirby J. An important question debated in those authorities is whether the ground in s 5(1)(h) is made out if one of the matters in s 5(3) is established, or the ground in s 5(1)(h) is made out only if there was no evidence or other material to justify the making of the decision and one of the matters in s 5(3) is established. 109 Sitting as a single Judge of the Court, I think the issue I have identified has, as far as the relationship between s 5(1)(h) and s 5(3)(b) is concerned, been resolved by the Full Court of this Court in SGFB . A party seeking to make out the ground in s 5(1)(h) by establishing that the decision-maker based his decision on the existence of a particular fact and that fact did not exist must also establish that there was no evidence or other material to justify the making of the decision. 110 The allegations in this case suggest that the applicant seeks to make out the ground in s 5(1)(h) by reference to s 5(3)(a). The question whether he does so only if he establishes the matter in s 5(3)(a) and that there was no evidence or other material to justify the making of the decision or whether he does so simply by establishing the matter in s 5(3)(a) has not been authoritatively determined. I did not have the benefit of submissions on the point and, indeed, the applicant was not legally represented. I do not need to resolve the difficult question raised because even on the assumption most favourable to the applicant, that is to say, that all he need do is establish the matter in s 5(3)(a) , the ground in s 5(1)(h) is not made out. 111 One of the matters which must be satisfied in order to make out the ground in s 5(3)(a) is that the particular matter was one the decision-maker was required by law to find established before reaching the decision in question. In considering that matter, it may be noted that there is some artificiality in the assumption upon which I am proceeding, namely, that the act of the third respondent in forming the opinion that the applicant may have failed to fulfil his duty as an officer and informing the first respondent of that opinion is a decision to which the ADJR Act applies. However, proceeding on that assumption, it might be said that the particular matter the third respondent was required by law to find established before reaching his decision was that the applicant may have failed to fulfil his duty as an officer. If that is so, it cannot be said that there was no evidence or other material from which the third respondent could reasonably be satisfied of that matter. There was ample evidence upon which the third respondent could form the opinion that the applicant may have failed to fulfil his duty as an officer. 112 The alternative is that the applicant contends that the particulars are "particular matters" within s 5(3). The particulars are expressed in positive terms and I think to make sense of the allegation it is necessary to construe the particulars as in effect allegations that there was no evidence or other material from which the third respondent could reasonably be satisfied that the applicant's use of the ATO computer facilities was inconsistent with the manner in which he had been performing his duties since he commenced work with the ATO and not in accordance with the requirements of his duties and inconsistent with the manner in which other officers of the Service working in the ATO performed their duties. The immediate difficulty with this submission is that these are not particular matters required by law to be established before the third respondent formed his opinion and conveyed that opinion to the first respondent. Alternatively, for reasons I have already given, it cannot be said that there is no evidence or other material from which the third respondent could reasonably be satisfied that these matters were established. There was ample evidence that the applicant's computer usage was outside the scope of his duties and inconsistent with computer usage by other employees within the ATO. 113 The applicant has failed to establish the matters in s 5(3)(a). 114 Because the applicant was unrepresented, I have considered whether he might have been able to bring his particulars within s 5(3)(b). I have concluded that he could not. The applicant has failed to show the non-existence of any fact relied upon by the third respondent, let alone any "particular fact". Moreover, there was evidence justifying the decision of the third respondent and, as I have already said, showing that there was no evidence is an additional hurdle to review under s 5(1)(h): SGFB . 115 The first ground of challenge to the second decision is that there was a breach of the rules of natural justice. Putting to one side the allegation in relation to the first decision that the third respondent should have disqualified himself, the particulars of breach are in similar terms to the particulars of breach given in relation to the first decision. The first respondent considered whether the applicant should be given notice of the matters of concern before the meeting on 4 June 1997 and decided that because of security concerns he should not be given such notice. On the evidence before me that was a conclusion which was reasonably open to her. The applicant was given notice of the matters of concern at the meeting on 4 June 1997 and to that extent he was given the opportunity to respond. If an opportunity to be heard within s 63B(1C) is satisfied by the notice he was given at the meeting, then the obligation in the subsection was satisfied. To the extent that it was not satisfied by that action, the subsection was nevertheless satisfied because in that event the case fell within s 63B(1C)(b). 116 The second ground of challenge in relation to the second decision is that s 63B(1C) (incorrectly referred to in the statement of claim as s 63B(1A)) was not complied with. This ground of challenge fails for the reasons given in relation to the first ground of challenge.