Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 162
Outcome: followed
In relation to the language ability of the appellant his Honour found: &#8226; Reference to the IELTS test in the Tribunal's reasons for decision merely indicated the Tribunal's awareness of the test as an alternative form of assessment, and inferences open upon the presentation of such evidence. In any event the Tribunal noted there was no such evidence and that the Tribunal only had available before it the appellant's evidence comprising his Diplomas. &#8226; The Tribunal had carefully considered the evidence provided by the appellant in relation to his Diplomas. It noted that written assignments were not produced, but assessment was undertaken by "tick a box" multiple-choice assessment. The appellant was not required to attend class and listen to lectures conducted in English. &#8226; Classes given as part of the course of study for the Diplomas were by correspondence, although the appellant had attended some classes where he communicated with tutors in Vietnamese and English. &#8226; The fact that the appellant was dissatisfied with the Tribunal's determinations on questions of fact does not amount to a jurisdictional error or error of law and it is not appropriate for a court to review the merits of a Tribunal's determination ( Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 162). 12 In relation to valuation of assets of the appellant his Honour found: &#8226; Section 359A of the Act does not require the thought processes, subjective appraisals or determinations of the Tribunal to be provided to the appellant for comment. &#8226; Facts or findings as to credibility are the function of the primary decision-maker. &#8226; Although the issue of pre-and post-application values of property was determined by the Tribunal arbitrarily, the issue was decided in favour of the appellant. This is ultimately a question of fact for the Tribunal. 13 Accordingly his Honour dismissed the application. 14 The appellant filed a Notice of Appeal on 6 December 2007. During the course of oral submissions on 21 May 2008 before me, an issue of contention arose as to whether the Tribunal had made findings of fact unsupported by evidence in relation to the assessment of the appellant's English language ability, whether the appellant had attended his Diploma courses part-time, and whether the courses were conducted in English or Vietnamese (TS 12 21 May 2008). The appellant had not raised these issues before the Federal Magistrate and did not include such grounds in the Notice of Appeal filed 6 December 2007. Once these issues were raised in oral submissions, however, the appellant foreshadowed a desire to seek leave to file an Amended Notice of Appeal so as to include further grounds. I adjourned the matter to allow the appellant time to prepare an Amended Notice of Appeal and to allow both parties the opportunity to prepare amended submissions in the event that leave to file the Amended Notice of Appeal was granted. 15 On 24 June 2008 the matter returned for hearing and the appellant applied for leave to file an Amended Notice of Appeal. After hearing from both parties: &#8226; I was not persuaded that the appellant's new legal arguments presented in the Amended Notice of Appeal had a reasonable prospect of success; and &#8226; I considered that no sufficient explanation by the appellant was offered as to why the new ground of appeal was not raised before the Federal Magistrate. 16 However I also considered that allowing the appellant to amend his Notice of Appeal would cause limited (if any) prejudice to the respondent (indeed, Counsel for the first respondent stated at this hearing that she was in a position to answer the new ground of appeal). 17 On balance, I decided it was in the interest of justice that the appellant be granted leave to file his Amended Notice of Appeal.