Case: Tran v Minister for Immigration and Multicultural Affairs [2006] FCA 1229 ; (2006) 154 FCR 536
Outcome: distinguished
The appellant also submits that the Magistrate erred in concluding that to grant relief would be futile and , in those circumstances, he should exercise his discretion to refuse relief. She submits that it was at least theoretically possible that the grant of relief would not be futile and that, in those circumstances, the discretion to refuse relief should not have been exercised. The appellant referred to the decision in Tran v Minister for Immigration and Multicultural Affairs [2006] FCA 1229 ; (2006) 154 FCR 536 (" Tran "). 21 The first respondent sought to meet the appellant's submissions. In addition, he sought to raise two other arguments. The first argument is that s 359A of the Act did not apply because the relevant information was information the applicant gave for the purpose of the application and that, in those circumstances, the section did not apply by reason of s 359A(4)(b). That argument is raised by the first respondent in a notice of contention which has been filed. The second argument is that the obligation in s 359A(1)(b) may be satisfied by a method other than by giving a document to an applicant. In support of that argument he refers to the fact that s 359A(1)(a) refers to information and s 359A(1)(c) refers to an invitation. Section 359A(2) refers to information and the invitation but does not refer to an explanation which might be given in compliance with s 359A(1)(b). This second argument of the first respondent was not the subject of consideration by the Magistrate and is not the subject of the notice of contention. It does not appear to have been raised before the Magistrate. If I accept the argument, the first respondent goes on to submit that the onus is on the appellant to prove a breach of the section and the appellant is unable to discharge that onus. In other words, the first respondent submits that the appellant is unable to prove that by some means the Tribunal did not ensure, as far as reasonably practicable, that she understood why the information was relevant to the review. 22 I start by a consideration of the two other arguments raised by the first respondent. 33 The appellant referred to the decision of Rares J in Tran . It is true that his Honour referred to the fact that it was theoretically possible for the Tribunal to reach a different result and that that was sufficient to overcome any objection to the granting of relief, but all of his Honour's observations must be considered and it is clear that, on the ground of futility, the case before him was quite a different one from that before me. In the case before his Honour, it was clear that, although improbable, it was possible that the Tribunal would reach a different result. That is not the case here and no ground for interfering with the Magistrate's exercise of the discretion has been established. 34 Although in my respectful opinion the Magistrate should have concluded that the Tribunal had failed to comply with s 359A(1)(b), he did not err in exercising his discretion to refuse to grant relief. In those circumstances, the appeal must be dismissed. The appellant must pay the first respondent's costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 4 April 2007 Counsel for the Appellant: Mr J Gibson Solicitor for the Appellant: Australian Legal Advisory Centre Counsel for the First Respondent: Mr S Donaghue Solicitor for the First Respondent: Phillips Fox Date of Hearing: 30 October 2006 Date of Judgment: 4 April 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/488.html