Case: Repatriation Commission v Warren (2008) 167 FCR 511
Outcome: applied
Repatriation Commission v Warren (2008) 167 FCR 511 ( Warren's Case), Lindgren and Bennett JJ (with whom in this regard I agreed) comprehensively summarised the effect of earlier authorities bearing upon the question as to whether an External Merits Review Tribunal commits legal error by not considering an issue even if it is not raised or the subject of challenge by the parties to the review proceeding before it. Their Honours stated (para 78): The following principles, which we take to be established, must be understood against the background that the tribunal under consideration, like the Tribunal here, is required to "review" a primary decision, is given all the powers and discretions that were conferred on the original decision-maker, is not bound by the rules of evidence, is required to proceed with little formality and technicality, and is, of course, bound to apply the provisions of the relevant statute, even if there is no challenge by the parties: The general rule that a litigant is bound by, and accordingly is entitled to act on, admissions and concessions does not automatically apply, although cases concerned with the exercise of judicial power may be of assistance ( Kuswardana at 194 per Bowen CJ). A party to the proceeding is not necessarily precluded from arguing on "appeal" matters that were conceded before the tribunal. Whether the party is so precluded depends on the nature of the matter conceded, its conduct of its case, whether the concession represented an agreement by the parties as to the facts to be decided and other relevant circumstances ( Kuswardana at 195 per Bowen CJ and at 199 per Fox J). Where a concession is made, there must be some difficulty in finding an "error of law" when the contrary of the concession is raised for the first time in this Court ( Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262 at 1267 per Gummow J). A tribunal does not err in law in failing to regard as material a fact which counsel failed in submissions to contend was material ( Federal Commissioner of Taxation v Perkins (1993) 26 ATR 8 at 10 per Davies J). There is a difference between factual matters not canvassed before the tribunal and a new issue relating to the validity of a regulation ( Tefonu Pty Ltd v Insurance and Superannuation Commissioner [1993] FCA 412 ; (1993) 44 FCR 361 at 367 per Beazley J). Even though the parties may be ' able, in practical terms, to narrow the issues by concession ... even a concession does not permit the [t]ribunal to avoid its duty as an administrative decision-maker to make the correct or preferable decision ... on all relevant aspects of the matter before it ' ( Peacock v Repatriation Commission (2007) 161 FCR 256 at [23]); A concession ' does, however, permit the decision-maker to reach the correct or preferable decision by reference to the concession as well as to its findings on disputed questions ' ( Peacock at[23]; and see Comcare v Fiedler [2001] FCA 1810 ; (2001) 115 FCR 328 at 337 338). The Court will more readily permit a matter to be raised for the first time in this Court on an appeal from a tribunal where: (a) the matter is a pure question of law, such as a question as to the validity of a regulation ( Kuswardana at 195; Tefonu at 367) or a question as to whether the tribunal had applied the correct standard of proof on the true construction and application of legislation ( Ferriday at 527 528 per Lee J); (b) the matter goes to a misapprehension that was shared by the parties before the tribunal and therefore by the tribunal itself ( Perpetual Trustee Co (Canberra) Ltd v Commissioner for ACT Revenue [1994] FCA 1150 ; (1994) 50 FCR 405 at 418-419 per Wilcox J) such as a shared misapprehension as to the applicable law (cf Thomas at 120 per Beazley J); or (c) the matter goes to a condition precedent to the availability of a power, the exercise of which will have a serious impact on the individual ( Kuswardana ) . [Full internal case references and citations omitted] Of the propositions summarised in the passage quoted from Warren's case, the present is but an example of a case where a Tribunal has not erred in law by failing to regard as material a fact which the representative of a party before it failed in submissions to contend was material. A finding by the Tribunal that each of the businesses nominated on the visa application form by the Appellant as a "main business" was indeed a "main business" necessarily, in the circumstances, carried with it a finding, a "satisfaction", that each business, factually, met the definition of "qualifying business".