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DPP v Smith [2010] VSCA 215 (23 August 2010).txt	dpp v smith 2010 vsca 215 23 august 2010 last updated 27 august 2010supreme court victoriacourt appeal apcr 2009 0847director public prosecutionsappellantvrodney peter smithrespondent judge nettle harper hansen jjawhere held melbournedate hearing 23 august 2010date judgment 23 august 2010medium neutral citation 2010 vsca 215judgment appealed r v smith unreported county court victoria judge pilgrim 8 september 2009 criminal law use carriage service access child pornography possession child pornography high volume material gravity material upper end spectrum period possession lower end range sentenced 18 month imprisonment wholly suspended 150 hour community work psychiatric treatment whether sentence manifestly inadequate whether adequate sentence required immediate term imprisonment sentencing consideration general deterrence offender need counselling rehabilitation maximise prospect rehabilitation custodial sentence required appeal dismissed appearance counselsolicitorsfor director public prosecutionsmr j champion sccommonwealth director public prosecutionfor respondentmr hallowslmsw lawyersnettle ja 1 crown appeal alleged manifest inadequacy sentence imposed respondent pleading guilty one count using carriage service access child pornography contrary 474 19 1 criminal code cth count 1 one count possessing child pornography contrary tos 70 1 thecrimes act 1958 vic count 2 2 maximum penalty offence using carriage service access child pornography ten year imprisonment maximum penalty offence possessing child pornography five year imprisonment 3 judge sentenced respondent count 1 18 month imprisonment wholly suspended period two year count 2 community based order period two year special condition respondent perform 150 hour community work subject supervision community correction officer undergo psychological psychiatric assessment treatment pursuant tos 38 1 thesentencing act 1991and undergo referral sex offender programme participate programme 4 crown make complaint sentence imposed count 1 contends judge erred relation count 2 failing recognise anything le immediate term imprisonment inadequate punishment facts5 fact matter set detail judge sentencing remark shall recite present purpose suffices record following 6 20 october 2008 australian federal police attended respondent home executed search warrant premise seized three desk top computer five compact disc subsequent examination computer revealed shareaza peer peer file sharing software installed two computer allowed searching downloading picture music video file user internet 7 police also ascertained 35 file containing child pornography downloaded shareaza application onto two computer 14 april 2008 9 october 2008 35 file three image six video depicted child nudity erotic posing sexual activity two image nine video depicted sexual act child self masturbation child one video depicted non penetrative sexual activity adult child 14 video depicted penetrative sexual activity adult child fact comprised count 1 8 examination revealed one computer contained five video child pornography another computer 133 image 156 video child pornography third computer contained 7 569 image 55 video child pornography two five compact disc contained total 12 video child pornography fact comprised count 2 nature gravity offending9 pornographic material discovered fell five category first image depicting nudity erotic posing without sexual activity image pre pubescent female child sexual pose various state undress mostly naked close shot genitalia age child ranged month 12 year majority image depicting pre pubescent female aged five ten year category comprised approximately 60 percent total image possessed 10 second category sexual activity child self masturbation child image pre pubescent male female child engaged sexual activity child female pre pubescent child masturbating accounted seven percent total image possessed 11 third category image non penetrative sexual act child adult image pre pubescent female child engaged non penetrative sexual act adult male age female child ranged month around 10 year category accounted approximately seven percent total image possessed 12 fourth category made image penetrative sexual act child adult image pre pubescent female child aged month around ten year engaged penetrative sexual adult male accounted approximately 22 percent total image possessed 13 final category image sadism bestiality depicting pre pubescent female child aged five ten year apparently pain bound tape chain handcuff rope hand foot bed chair object example one series image showed female child aged approximately five year word cut slut hurt written red blood like liquid chest knife adult penis category accounted approximately four percent total image 14 also five category video cognate content totalling 40 hour viewing category 1 video comprised five percent total video image possessed category 2 approximately 30 percent category 3 six percent category 4 approximately 55 percent category 5 approximately five percent category 4 5 particularly bad category 4 showed pre pubescent female child aged month approximately 10 year engaged penetrative sexual act adult male including oral anal vaginal penetration category 5 showed pre pubescent female child bound explained pre pubescent female child fellating dog judge estimated number child depicted image video totalled 1 000 period possession however six month 15 summary judge found gravity material higher end scale honour appears accepted prosecutor submission quantity towards upper end spectrum period possession lower end range moral culpability16 time offending respondent 28 year old single man raised called strict christian household limited information sexual matter living parent sheltered existence focussing home life computer 17 perhaps surprisingly judge found genesis offending shy man escaping room committing appalling offence problem broadband connected first respondent curious became addicted 18 away home respondent qualified horticulturist working full time shire council socially isolated shy difficulty making friend never sexual relationship woman 19 prior conviction however excellent work ethic supported family apart subject offence led blameless life putting assisting others within community remorse prospect rehabilitation20 making comment response question put police interviewed signified willingness plead guilty early stage proceeding sought advice general practitioner counsellor 21 psychological examination revealed man intra punitive personality judge accepted genuinely remorseful compelling evidence remorse judge referred letter written respondent counsellor beginning treatment stated
Harb v Commissioner for Fair trading, Office of Fair Trading [2005] NSWADT 171 (1 August 2005).txt	harb v commissioner fair trading office fair trading 2005 nswadt 171 1 august 2005 last updated 2 august 2005new south wale administrative decision tribunal general divisioncitation harb v commissioner fair trading office fair trading 2005 nswadt 171parties applicantspeter harbsteven harbrespondentcommissioner fair trading office fair tradingfile number 043157hearing date paperssubmissions closed 14 03 2005decision date 01 08 2005before molony p judicial memberlegislation cited home building act 1989home building regulation 1997cases cited commissioner fair trading v harb anor gd 2004 nswadtap 17harb v commissioner fair trading 2003 nswadt 185makita v sprowles 2001 nswca 305application home builder cancellation contractor licencematter decision principal matterapplicant representative applicantst davie counselrespondent representative respondenta wilson solicitororders 1 mr peter harb case tribunal affirms decision commissioner cancel mr peter harb contractor licenceb set aside determination commissioner disqualify mr peter harb obtaining contractor licence 5 year impose penalty 4 000 00 c substitute determination decision mr peter harb disqualified period 3 year 1 august 2005 following holder authority ii member partnership officer corporation member partnership holder authority andiii officer corporation holder authority2 mr steven harb case tribunal set aside determination commissioner substitute decision finding mr steven harb guilty improper conduct within meaning ofs 51 2 c act determines reprimanded improper conduct andb pay penalty 1 650 00 administrator reason decision reason decisionbackground1 reason decision concern certain aspect decision made inharb v commissioner fair trading 2003 nswadt 185 decision subject appeal cross appeal appeal panel tribunal appeal panel incommissioner fair trading v harb anor gd 2004 nswadtap 17allowed appeal set aside order made remitted appeal heard decided without hearing evidence accordance finding appeal panel cross appeal mr peter harb dismissed 2 background original application tribunal sufficiently set inharb v commissioner fair trading 2003 nswadt 185 repeated complete background understanding totality issue original decision appeal panel read 3 purpose issue presently consideration sufficient say original application tribunal sought review disciplinary action taken commissioner mr steven harb mr peter harb holder contractor licence thehome building act1989
State Service (Savings and Transitional Provisions) Act 2000 (No. 87 of 2000).txt	state service saving transitional provision act 2000 87 2000 act 87 2000 royal assent 20 december 2000table provisionslong title1short title2commencement3interpretation4commissioner public employment5contracts6determinations7classification standard procedures8government departments9heads agencies10prescribed offices11senior executives12standing orders13employees14duties employees15procedures filling vacancies16determinations section 37 1 repealed act17persons employed section 38 repealed act18registers19election reappointed employee20secondments21suspension22employees declared surplus23inability discharge duties24discipline conduct25appeals26notices27holidays28activities undertaken outside state service29provisions respect matter dealt repealedact30certain person become employees31regulations32administration actschedule 1schedule 2 note table automatically generated may incomplete
Stephen Noel Herbert v No1 Riverside Quay_BP Retail t_as No1 Riverside Quay [2010] FWA 2088 (12 March 2010).txt	stephen noel herbert v no1 riverside quay bp retail no1 riverside quay 2010 fwa 2088 12 march 2010 fair work australiadecisionfair work act 2009s 394 application unfair dismissal remedystephen noel herbertvno1 riverside quay bp retail no1 riverside quay u2009 14540 commissioner raffaellisydney 12 march 2010termination employment extension time 1 application made theworkplace relation act 1996 wr act wr act repeal day consequently wr act continues apply item 11 part 3 schedule 2 fair work transitional provision consequential amendment act 2009 fair work australia deal application basis 2 section 643 14 wr act provides application section 643 must lodged within 21 day day termination took effect also say within period commission allows application made 21 day 3 stephen noel herbert applicant lodge application within 21 day termination 1 riverside quay bp retail 1 riverside quay respondent termination occurred 12 january 2009 application lodged 9 december 2009 4 24 december 2009 invited applicant provide reason writing lodgement time extended also invited respondent provide response propose hold hearing decided deal matter basis including reply submission applicant 5 onus establishing time extended lie applicant applicant matter applicant failed act manner prescribed act 6 within relevant part act note appears referring principle enunciated inbrodie hanns v mtv publishing 1995 67 ir 298 7 take due regard principle principle follows 1 special circumstance necessary court must positively satisfied prescribed period extended prima facie position time limit complied unless acceptable explanation delay make equitable extend 2 action taken applicant contest termination applying act relevant show decision terminate actively contested may favour granting extension time 3 prejudice respondent including prejudice caused delay go granting extension time 4 mere absence prejudice respondent insufficient basis grant extension time 5 merit substantive application may taken account determining whether grant extension time 6 consideration fairness applicant person like position relevant exercise court discretion 8 turn principle acceptable explanation delay 9 according applicant originally lodged application pursuant section 648 within 21 day termination however upon seeking advice number law firm mentioned brydens turner freeman keddies lawyer informed injury matter termination would dealt nsw worker compensation commission withdrew section 648 application 10 applicant put lay person lodged original application time 11 respondent agreed applicant originally made application within time however written contention evidence law firm referred gave advice say law firm mentioned representative necessary pre condition representative error claim 310 day delay filing application explanation took long act 12 applicant say acted advice law firm detail given spoke precisely said given say said wrong worker compensation system cannot deal reinstatement prepared absence stronger supporting material believe said contends told evidence representative 13 called advice lawyer said caused withdraw original claim insufficient explanation caused lodge application took long 14 find circumstance applicant failed satisfy acceptable explanation delay action taken employee contest termination 15 applicant lodge earlier application find contest termination making current application prejudice respondent 16 find may prejudice respondent occasioned delay size respondent particularly relevant regard merit application 17 material unable find application without merit fairness applicant person like position 18 relevant consideration conclusion 19 duly considered matter put party light principle enunciated thebrodie hannsdecision prepared exercise discretion allow filing application time 20 application dismissed commissionerprinted authority commonwealth government printer price code c pr994984
CLEANAWAY OPERATIONS PTY LTD v PHILIP HANEL (COMMONWEALTH: COMCARE) [2022] SASC 52 (26 May 2022).txt	cleanaway operation pty ltd v philip hanel commonwealth comcare 2022 sasc 52 26 may 2022 last updated 27 may 2022supreme court south australia magistrate appeal criminal disclaimer every effort made comply suppression order statutory provision prohibiting publication may apply judgment onus remains person using material judgment ensure intended use material breach order provision enquiry may directed registry court generated cleanaway operation pty ltd v philip hanel commonwealth comcare 2022 sasc 52judgment honourable chief justice kourakis26 may 2022magistrates appeal review south australia appeal supreme courtindustrial law work health safetyindustrial law work health safety duty liability dutiesthis appeal magistrate court company conviction eight count offence againsts 32of thework health safety act 2011 cth appellant waste management company operates large commercial truck 18 august 2014 vacuum truck owned appellant company driven employee appellant company employee went control reaching speed 151 9km h colliding vehicle intersection south eastern freeway cross road portrush road adelaide result accident two people killed employee one person seriously injured essential factual finding made magistrate conviction rest appellant failed ensure employee competent select proper gearing vacuum truck descent along south eastern freeway appellant brings appeal five ground 1 magistrate erred holding prosecution required prove particular charge alleging failure appellant discharge duty respect employee competence drive vehicle route 2 magistrate erred admitting evidence expert witness alternative gave evidence excessive weight 3 magistrate erred relying appellant driver training assessment protocol produced incident 4 magistrate erred finding sufficient evidence prove reasonably practicable ass competence employee drive south eastern freeway 5 magistrate erred finding causation element offence satisfied proof alleged measure would reduced risk held per kourakis cj 1 appeal dismissed respect count 1 2 trial clearly confined employee competence drive vacuum truck descent south eastern freeway b part expert opinion magistrate relied complained appellant within expert expertise soundly based c draft driver training assessment protocol evidence possible safety measure identified appellant employee evidence placed evidentiary onus appellant adduce evidence measure reasonably practicable appellant failed practical reason assessing employee competence drive south eastern freeway directed vacuum truck e connection must proved exposure risk alleged breach duty reasonably practicable measure available appellant adopted would materially reduced risk 2 appeal allowed count 3 4 5 6 7 8 conviction count set aside work health safety act 2011 cth s 32 19 1 19 3 c 19 3 f 14 15 16 17 17 b 33 18 19 31 19 2 work health safety act 2011 nsw s 32 19 2 referred director public prosecution v vibro pile aust pty ltd 2016 vsca 55 applied wyong shire council v shirt 1980 hca 12 1980 146 clr 40 grasso v safework nsw 2021 nswcca 288 discussed commonwealth comcare v cleanaway operation pty ltd acn 010 745 383 transpacific industry pty ltd 2021 samc 54 considered cleanaway operation pty ltd v philip hanel commonwealth comcare 2022 sasc 52magistrates appeal criminal1kourakis cj appellant cleanaway operation pty ltd cleanaway appeal conviction eight count offence againsts 32of thework health safety act 2011 cth act subject matter conviction breach cleanaway duty act ensure far reasonably practicable health safety worker person may put risk work carried part business undertaking 2 18 august 2014 mr hick lost control cleanaway vacuum truck driving track south eastern freeway freeway suffered catastrophic brake failure resulting accident intersection freeway cross road portrush road glen osmond road two people killed mr hick one person seriously injured mr hick failed attempt engage lower gear approach intersection leaving vacuum truck neutral essential factual finding made magistrate conviction rest cleanaway failed ensure mr hick competent select proper gearing vacuum truck descent along freeway 3 count 1 3 5 7 alleged breach cleanaway duty ensure safety worker count 1 alleged failure maintain safe system work accordance withss 32 19 1 and19 3 c act cleanaway eliminate minimise risk collision vacuum truck road user failing prevent mr hick driving vacuum truck without supervision competence drive vehicle may required drive course work properly determined including assessment competence drive truck manual gearbox charge relevantly read charge 1on 18 august 2014 adelaide state south australia pursuant tosection 32 section 19 1 andsection 19 3 c thework health safety act 2011 cth act cleanaway operation pty ltd acn 010 745 383 also known transpacific industry pty ltd failed comply health safety duty person conducting business undertaking transpacific industry pty ltd failed ensure far reasonably practicable health safety worker engaged caused engaged transpacific industry pty ltd worker work business undertaking particulars1 defendant cleanaway operation pty ltd acn 010 745 383 also known transpacific industry pty ltd tpi material time body corporate 2 tpi material time non commonwealth licensee subject jurisdiction act 3 act omission defendant took place workplace including tpi depot wingfield south australia south eastern freeway adelaide various place 4 undertaking defendant included collection transport septic waste pursuant contract adelaide hill council 5 hazard workplace namely use large vacuum truck travelling public road generally south eastern freeway particular 6 defendant health safety duty pursuant tos 19 1 ands 19 3 c act provide maintain safe system work ensure far reasonably practicable health safety worker engaged caused engaged defendant 7 defendant failed comply duty exposed worker namely darren hick risk death serious injury 8 health safety risk darren hick exposed serious injury death result collision vacuum truck road user 9 reasonably practicable measure available defendant control risk arising defendant undertaking defendant failed maintain system work whereby darren hick prevented driving vacuum truck without supervision competence drive vehicle may required drive course work properly determined defendant including assessment defendant darren hick competence task driving truck manual gearbox 4 third count alleged failure cleanaway comply health safety duty imposed byss 32 19 1 and19 3 f eliminate risk collision vacuum truck road user failing provide mr hick adequate training substituting reference tos 19 3 c withs 19 3 f particularisation breach duty particular 9 third count took form count 1 reasonably practicable measure alleged count 3 failure provide training instruction supervision whereby mr hick competence drive vehicle may required drive course work including truck manual gearbox properly determined 5 fifth count relied onss 32 19 1 and19 3 c alleged failure cleanaway maintain safe system work reasonably practicable measure alleged particular 9 failure prevent mr hick driving vacuum truck without supervision competence drive route may required drive course work properly determined including competence drive south eastern freeway use arrester bed required 6 count 7 relied onss 32 19 1 and19 3 f alleged breach duty failing provide training instruction supervision whereby mr hick competence drive route may required drive properly determined including assessment competence drive truck south eastern freeway use arrester bed 7 count 1 3 5 7 may summarised follows count 1 5 alleged cleanaway failed provide safe system work allowing mr hick drive vacuum truck assessing competence use manual gearbox drive freeway respectively count 3 7 alleged breach duty train assist mr hick use manual gearbox drive vacuum truck freeway respectively 8 count 2 4 6 8 followed pattern count 1 3 5 7 respect breach cleanaway duty ensure far reasonably practicable health safety person worker 9 ground one notice appeal cleanaway complains magistrate erred holding prosecution required prove particular charge alleging failure cleanaway discharge duty respect mr hick competence driveallvehicles onallroutes 10 would dismiss ground appeal reason trial clearly conducted basis cleanaway breached duty act respect mr hick competence drive vacuum truck descent freeway indeed gravamen offence charged againsts 32of act exposure cleanaway employee others risk injury collision vacuum truck others descent extension particular route vehicle unnecessary embarrassing ought application made cleanaway struck cleanaway apply therefore prejudice perhaps cost however consequence conclusion offence againsts 32are anchored particular risk others exposed separate offence committed act omission breach duty imposed cleanaway entitled defence way plea bar count first two 11 ground two cleanaway complains magistrate erred admitting evidence expert witness dr rechnizter alternative gave evidence excessive weight opinion based specialised knowledge sufficiently reasoned based unproven assumption incorrect understanding theaustralian road rule abandoned cross examination opinion mr hick instructed keep vehicle speed greater 60 kph 12 would dismiss appeal ground reason part dr rechnitzter opinion magistrate relied within expertise soundly based 13 ground three cleanaway contends magistrate erred relying cleanaway draft driver training assessment protocol produced incident discussion paper change heavy vehicle driving law holding cleanaway breached duty 14 would dismiss ground appeal reason document evidenced possible safety measure identified cleanaway face sensible option evidence placed evidentiary onus cleanaway adduce evidence measure reasonably practicable cleanaway failed 15 ground four cleanaway contends magistrate erred finding sufficient evidence prove reasonably practicable ass competence mr hick drive freeway evidence hick competent mr hick assessed competent hold driver licence absence industry standard practice assessment truck driver competence put hick driven freeway accordance correct driving practice suggested relevant witness procedure cleanaway place deficient evidence reasonable person conducting cleanaway business would regarded assessment competence drive freeway warranting discrete assessment 16 would dismiss appeal ground risk collision heavy vehicle like vacuum truck road user arising failure control speed steep descent along freeway busy suburban intersection obvious unusual driver competence effecting appropriate gear change important safeguard risk holding heavy vehicle licence regulatory requirement ensures minimum always sufficient standard competence much recognised cleanaway employed person ass competence driver employed practical reason assessing mr hick competence gear selection descent freeway directed drive vacuum truck freeway 17 ground five cleanaway contends magistrate erred finding causation element offence satisfied proof alleged measure would reduced risk cleanaway submits magistrate found prosecution required prove omission put place alleged measure significant substantial cause nominated people exposed specified risk serious injury death 18 would dismiss ground five proper construction ofs 32of act connection must proved exposure risk alleged breach duty reasonably practicable measure adopted pcbu would materially reduced risk worker others exposed even risk substantially arose circumstance pcbu responsible legislation19section 14of act provides employer duty cannot transferred another person non delegable section 15of act declares person owe one duty reason member one class duty holder section 16of act provides two person concurrently owe duty 20section 17of act provides duty imposed person ensure health safety requires person eliminate risk health safety far reasonably practicable b reasonably practicable eliminate risk health safety minimise risk far reasonably practicable 21 elimination risk workplace industry utilising heavy machinery particular seldom reasonably practicable case certainly case kind suffice focus minimisation risk mandated bys 17 b act 22section 18of act applies commonly referred shirt 1 formula test reasonably practicable assessment undertaken particular time alleged breach limited reasonably able done taking account weighing relevant matter including likelihood hazard risk concerned occurring b degree harm might result hazard risk c person concerned know reasonably know hazard risk ii way eliminating minimising risk availability suitability way eliminate minimise risk e assessing extent risk available way eliminating minimising risk cost associated available way eliminating minimising risk including whether cost grossly disproportionate risk 23section 19 1 imposes heading section describes primary duty care person conducting business undertaking person duty imposed bys 19of act referred submission made magistrate court judgment magistrate acronym pcbu person must ensure far reasonably practicable health safety worker engaged caused engaged person b worker whose activity carrying work influenced directed person worker work business undertaking 24 count 1 3 5 7 rely duty worker imposed bys 19 1 act 25section 19 2 act provides pcbu must ensure far reasonably practicable health safety person put risk work carried part engaging business undertaking count 2 4 6 8 rely duty imposed bys 19 2 act 26 reason difference text structure subsection 1 2 ofs 19is obvious former duty ensure health safety worker whereas latter ensure health safety person putat risk however minimisation risk limb duty ensure health safety prescribed bys 17is read intos 19of act little practical difference subsection 1 2 generality case difference drafting perhaps necessary order limit duty owed non worker safeguarding risk arise work carried course business undertaking duty employee hand extends ensuring health safety minimising risk health safety arising cause work carried part business undertaking whilst employee acting course employment 27section 19 3 act provides 3 without limiting subsection 1 2 person conducting business undertaking must ensure far reasonably practicable provision maintenance work environment without risk health safety b provision maintenance safe plant structure c provision maintenance safe system work safe use handling storage plant structure substance e provision adequate facility welfare work worker carrying work business undertaking including ensuring access facility f provision information training instruction supervision necessary protect person risk health safety arising work carried part conduct business undertaking g health worker condition workplace monitored purpose preventing illness injury worker arising conduct business undertaking 28 opening word ofs 19 3 without limiting subsection 1 2 important show provision prescribed safety measure aspect duty imposed respect worker others subsection 1 2 respectively seen count 1 2 5 6 rely ons 19 3 c count 3 4 7 8 rely ons 19 3 f act 29section 32of act provides 32 failure comply health safety duty category 2a person commits category 2 offence person health safety duty b person fails comply duty c failure expose individual risk death serious injury illness penalty case offence committed individual person conducting business undertaking officer person conducting business undertaking 150 000 b case offence committed individual person conducting business undertaking officer person conducting business undertaking 300 000 c case offence committed body corporate 1 500 000 30section 33of act provides 33 failure comply health safety duty category 3a person commits category 3 offence person health safety duty b person fails comply duty penalty case offence committed individual person conducting business undertaking officer person conducting business undertaking 50 000 b case offence committed individual person conducting business undertaking officer person conducting business undertaking 100 000 c case offence committed body corporate 500 000 31 considering term ofs 32ands 33more closely mention thats 31creates offence effect committing offence againsts 32but culpable mental element reckless risk individual death serious injury illness element offence duplicity plea bar32section 33may described basic offence breaching either one duty imposed bys 19of act element offence 1 person owed health safety duty conducted business undertaking 2 person failed comply duty failed take reasonably practicable measure eliminate minimise risk work carried conduct business undertaking 33section 17of act stipulates person bound 19duty must eliminate minimise risk health safety far reasonably practicable section 18of act guide assessment reasonably practicable made ands 19 3 act provides guide kind reasonably practicable measure may need taken offence againsts 33of act committed pcbu breach duty owed worker failing eliminate minimise risk breach duty person failing eliminate minimise risk 2 34 within context proper construction ofs 33of act failure eliminate minimise risk particularised charge constitutes fix mete bound discrete offence againsts 33of act separate offence reasonably practicable measure might degree eliminated minimised risk 3 must remembered reasonable precautionary measure safeguard risk may overlap secondary safeguard put place lest primary precaution fails conversely single charge alleges breach either one thes 19duties failing take reasonably practicable measure minimise multiplicity different risk would likely bad duplicity 35 degree particularity risk identified important risk may identified harm may result mechanism agency may cause harm latter approach adopted particular 8 charge risk collision vacuum truck road user importantly however particular risk pcbu reasonably control must focus basic offence offence againsts 33 circumstance case risk collision vacuum truck freeway user arising manner vacuum truck driven circumstance may risk arising condition truck risk caused external danger practicable anticipate risk might widely narrowly identified whether charge alleges widely framed risk bad latent express duplicity obviously depend factual context 4 36 critical additional element ofs 32of act distinguishes basic offence enacted bys 33 person isexposedto risk death serious injury illness respect reasonably practicable measure eliminate minimise risk taken mete bound discrete offence againsts 32of act therefore subject narrowing filter person exposed risk employer failed eliminate minimise follows even strongly therefore offence againsts 33is delineated particular risk person exposed charge alleged person exposed multiplicity risk would necessarily bad duplicity conclusion respect ofs 32supports taking symmetrical approach tos 33of act even though exposure risk element basic offence 37 offence againsts 32of act risk flowing failure take reasonably practical measure minimise eliminate minor harm however concept ofexposurerequires something simply failure minimise risk distinction failing toeliminateorminimiserisks health safety use language ofs 17of act andputting person risk use language ofs 19 2 one hand element ofs 32 c act isexposingan individual risk example may help illuminate distinction 38 pcbu conducting enterprise fails check brake heavy vehicle often reasonably practicable fails minimise risk collision caused brake failure pcbu ensure safety enterprise worker put others risk pcbu therefore breach duty commits offence againsts 33of act even vehicle left garage last inspection due vehicle driven well scheduled inspection even though brake nevertheless found proper working order however truck driven garage brake found latent fault might resulted catastrophic brake failure basic offence committed addition person vehicle path also beenexposedto risk offence againsts 32of act therefore committed 39 respect failure ass competence newly engaged driver failure make assessment reasonably practicable result breach duty failure minimise risk commission 33offence driver found fact perfectly competent drive vehicle route took one exposed risk hand driver shown necessary competency control speed truck manage brake failure steep route truck driven pcbu commits 32offence 40 risk worker public exposed course operation enterprise may vary greatly whether worker public exposed risk may depend range different factual circumstance finding charge encompasses many alleged exposure likely bad latent duplicity 41 turn expansive way breach alleged include vehicle route respectively respondent need pleaded duty widely prosecution case plainly much narrower cannot sensibly said breach duty ensure far reasonably practicable health safety worker preclude driving vacuum truck trained competent drive safely yet trained drive bulldozer road train case employer taken reasonably practicable measure minimise risk collision vacuum truck driven worker road user may breach duty offence committed employee duty extend driving road train trained respect different risk collision road train user must separately charged equally breach duty allow driver drive vacuum truck freeway trained competent drive freeway yet trained drive along north terrace peak hour risk collision north terrace different risk collision freeway 42 nonetheless appellant seized expansive pleading ground 1 notice appeal appellant contends respondent never proved mr hick trained competent respect vehicle road therefore charge must fail major premise submission accepted conclusion must rejected first clear particularisation special reference vacuum truck freeway particular 5 8 risk minimised risk collision vacuum truck road user moreover prosecution relied accident happen manifestation evidence risk person exposed applicant breach duty ensure mr hick trained competent drive vacuum truck freeway finally much evidence trial concerned reasonableness gear change made mr hick drove freeway 43 magistrate left doubt prosecution case confined vacuum truck descent freeway following paragraph 5 magistrate reason set course trial proceeding support conclusion 70 argument advanced defendant company contained para 3 15 defendant outline heading specified measure different case 71 paragraph 5 6 defendant outline encapsulate argument 5 prosecution case pleaded opened alleged thespecified measurewas cleanaway required ass competence darren hick mariner skinner assessment relation vehicle may required drive course work including manual vehicle charge 4 inclusive relation route may required drive part work including south eastern freeway charge 5 8 inclusive 6 evidence capable establishing case evidence witness gave evidence measure reasonably practicable 72 reference made portion prosecution opening transcript page 17 18 73 argued see para 8 9 prosecution sought abandon charge pleaded para 9 stated follows 9 prosecution abandoned case specified charge sheet opened held case pleaded opened charge dismissed 74 claimed specific charge different original pleaded pursued see para 10 16 75 accept argument 76 charge laid quite specific charge identifies 1 particular date instance date namely 18 august 2014 2 specific hazard common charge read follows hazard workplace namely use large vacuum truck travelling public road generally south eastern freeway particular see particular 5 charge 3 charge identifies specific individual said exposed risk death serious injury regard see particular 7 identifies occupant vehicle involved collision 18 august 2014 77 accordingly allegation relates quite specific time place event 78 contentious wording appears particular 9 charge alleges reasonably practicable measure said available defendant company control risk arising defendant undertaking view allegation laid clear use first charge example particular 9 read follows reasonably practicable measure available defendant control risk arising defendant undertaking defendant failed maintain system work whereby darren hick prevented driving vacuum truck without supervision competence drive vehicle may required drive course work properly determined defendant including assessment defendant darren hick competence task driving truck manual gearbox 79 opinion failure system work quite specific failure hick assessed competent driving truck manual gearbox 80 quotation referred prosecutor opening lead conclusion allegation relation charge quite specific outset trial 81 opening prosecutor identified precisely date incident truck involved truck 105 manual gearbox truck location south eastern freeway person exposed risk death serious injury hazard said exist reasonably practicable measure said available control risk 82 describing proposed evidence rodney farrar prosecutor said follows 83 see p 17 line 32 p 18 line 5 time engagement known employed operate vacuum truck therefore also known route would take completion set contract pick ups also opines assessment mr hick inappropriate conducted automatic vehicle despite fact hick assigned automatic vehicle first two day employment known also manual vehicle fleet reasonable assume point time hick would required drive one vehicle 84 describing charge 3 said follows 85 see p 15 line 28 38 correct third allegation cleanaway failed maintain system work whereby darren hick prevented driving vacuum truck without supervision competence drive route may required drive course employment properly determined defendant including assessment defendant darren hick competence task driving truck truck hill sense south eastern freeway assessment defendant darren hick competence use arrester bed 86 furthermore plain evidence led crown allegation specific trial focused driving darren hick manual truck truck 105 south eastern freeway culminated collision bottom freeway 18 august 2014 104 prosecution position throughout reasonably practicable measure alleged available defendant company control risk alleged count particular 9 properly understood allegation proper determination either ass competence hick drive manual truck drive truck hill descent south eastern freeway opinion expressed dr rechnizter p 61 pi3 argued relevant factor contained in 18of act proof measure alleged reasonably practicable 44 unduly broad pleading could caused appellant prejudice possibly cost preparing defence respect truck road prejudice met making special cost order therefore dismiss ground 1 45 case identified risk collision vacuum truck road user carry latent duplicity driving vacuum truck freeway one course conduct risk could minimised single one combination reasonably practicable measure alleged providing supervisor allowing mr hick drive properly training mr hick manual gearbox properly training mr hick driving freeway 46 however follows analysis single breach duty owed employee single breach duty owed person breach failure minimise risk collision vacuum truck driven mr hick freeway road user 47 judgment reserved wrote party requesting submission following question 1 whether 1 1 one offence againsts 32of thework health safety act 2011 cth committed respect single exposure risk irrespective number reasonably practicable measure might taken eliminate minimise risk or1 2 offence againsts 32for reasonably practicable measure taken irrespective number risk individual exposed or1 3 offence againsts 32for reasonably practicable measure taken eliminate minimise risk individual exposed 48 received written submission heard oral submission 16 may 2022 cleanaway director public prosecution cth comcare agreed answer posited 1 1 one offence againsts 32of thework health safety act 2011 cth committed respect single exposure risk irrespective number reasonably practicable measure might taken eliminate minimise risk 49 written submission director correctly distinguishedss 83and83of act statutory provision considered inchugg v pacific dunlop 6 expressly provided employer contravenes duty fails take prescribed safeguard contrast court indiemould tooling service pty ltd v oaten 7 held safety measure prescribed theoccupational health safety welfare act1986 sa safeguard parliament called particular attention determining whether employer reasonably practicable keep worker safe injury risk health 8 50 accordingly would set aside conviction count 3 4 5 6 7 8 appellant defence way plea bar count first two 51 also follows analysis statutory provision question causation arises least arise way actual harm damage element offence cause action starting point basic offence 32 offence identification risk employee person exposed risk identified next question whether employer failed take reasonably practicable measure eliminate minimise risk failure take reasonably practical measure sufficiently constitutes connection employer act omission relevant risk often always case broader environmental circumstance conduct person pcbu played part exposing employee others risk indeed even pcbu taken reasonably practical measure eliminate minimise risk worker others may continue exposed risk even substantial risk environmental circumstance conduct actor moreover reasonably practicable measure taken pcbu may rendered entirely largely ineffectual external factor reason identified risk may nonetheless eventuate 52 case kind offence might committed additional measure employer could reasonably take eliminate minimise risk case might said loose sense causal connection pcbu conduct exposure others failure take reasonably practicable measure ordinary course event might exposed another risk face unrelated overwhelming catastrophic circumstance could practicably anticipated however causation traditional sense additional element offence case kind described offence committed pcbu taken reasonable practicable measure eliminate reduce risk worker others exposed 53 burden appellant case ground 5 found ground 5 2 contends element offence employer omission significant substantial cause nominated people exposed specified risk submission conflates common law approach causation event injury statutory duty eliminate minimise risk may never eventuate employer fails minimise eliminate material sense fanciful speculative risk could eliminated reduced reasonably practicable measure duty breached remains constitute offence 32 person exposed risk even risk also arises conduct others environmental circumstance 54 case circumstance exposed mr hick user freeway risk defective condition brake appellant counsel referred brake failure elephant room however far unnoticed brake failure circumstance competence use gear safeguard problem exacerbated mr hick failure use gear effectively 55 would respectfully adopt approach victorian court appeal indirector public prosecution v vibro pile aust pty ltd 9 plainly enough proof breach 21 ohsa requires proof nexus act omission employer identified risk health safety nexus must proved statutory provision require act obliges employer everything reasonably practicable eliminate reduce risk health safety 10 alleged breach consists omission rather positive act proof breach requires prosecution establish matter set para 6 crown submission effect accepted vibro pile relied decision new south wale industrial court hold question addressed iswhether defendant act omission substantial significant cause risk 11 noted earlier formulation appears victorian criminal charge book cite decision logically failure eliminate risk said cause contribute persistence risk statute formulate issue term view language causation best avoided context 12 speak causal connection context liable suggest incorrectly offence require proof causal link employer conduct accident injury said typically triggered investigation prosecution repeatedly pointed authority proof breach independent link injury death 13 thus high court inkirksaid necessary harm already befallen employee offence committed inspector authorised oh act identifies risk health safety welfare employee present workplace employer addressed general duty may contravened obvious example would failure guard dangerous machinery many instance plurality judgment inkirk 14 pointed specification charge measure employer taken identify risk addressed proof specified measure would eliminated reduced risk establishes requisite nexus employer omission risk necessity introduce notion causation suggested notion likely lead misunderstanding occurred case footnote original 56 oral submission received written submission party decision ingrasso v safework nsw 15 section 32of thework health safety act 2011 nsw nsw act relevantly similar term 32 act mr grasso engineer consulted demolition roof old sydney entertainment centre haymarket provided service corporate entity referred judgment gce principal project lendlease demolition contractor hassarati course demolition part roof collapsed two worker managed escape injury fortuitously protected position time accepted trial appeal relevant risk demolition worker might exposed risk death serious injury structural collapse roof site 16 trial judge found mr grasso eliminate minimise risk failing apply engineering computer program test opinion way order roof could safely demolished said application program would identified load factor load bearing element roof risk buckling element judge found computer modelling reasonably practicable without gce advice eliminate minimise risk roof collapse judge found gce failed adequately communicate advice led misinterpretation demolition plan formulated hassarati judge found breach exposed demolition worker risk death serious injury 57 trial gce contended prosecution could succeed unless proved worker would still exposed risk hassarati followed gce advice set gce sketch hand prosecution contended critical question whether measure identified particular charge reasonably practicable whether taken would eliminated minimised risk roof collapse 58 cavanagh j court appeal walton j simpson aja agreed emphasised mr grasso gce breach duty undertaking computer modelling even ultimately advice found sound cavanagh j went deal relationship element breach exposure follows 17 183 said effect gce submission appears challenge finding rather suggest identification computer modelling reasonable practicable measure available gce go nowhere without establishing would eliminated minimised risk demolition worker exposed time work 184 submission blur distinction finding breach necessary finding causation element 32 offence submission directed question non compliance 19 2 fails come term proper approach considering question breach alternatively really submission causation 186 mr grasso exercised judgment judgment may led come correct advice correct eliminating risk unplanned roof collapse mean took reasonably practical step ensure health safety person knew may put risk work person would working roof 187 assessing non compliance court look whether duty holder complied duty imposed section whether non compliance actually exposed person risk whilst person performing work 188 similar approach considering whether person failed take reasonable care ordinary civil action 189 gce ensure health safety person put risk work take reasonably practicable measure test validity advice roof could demolished certain way 190 answer suggest context advice may got right e eliminated risk anyway 191 view approach party tends blur line non compliance causation 192 finding non compliance respect particular open trial judge error shown 59 interpolate passage consistent approach adumbrated relationship breach exposure 36 40 60 question causation cavanagh j said 18 225 person commits offence 32 failure comply health safety duty expose individual risk death serious injury illness must causal connection failure comply exposure person risk death injury causation question 226 often said context negligence action element breach causation serve different function 19 former imposes forward looking role conduct whereas latter imposes backward looking attribution responsibility breach 230 said inbulga question whether act omission ground finding non compliance duty significant substantial cause risk individual exposed 231 sufficient conduct cause must significant substantial cause use language tends emphasise importance conduct duty holder exposure ultimately happened although may still one significant cause 232 exposure risk workplace often multi factorial necessary establish conduct important significant causal factor provided significant substantial cause footnote original 61 observe passage expressed high level generality assume 32 nsw act incorporates element causation treat concept risk way actual injury incident 62 turning particular circumstance case cavanagh j noted trial judge found computer model applied gce advice risk unplanned structural collapse would eliminated minimised secondly gce failure adequately communicate advice lead misinterpretation incorporation another sketch made employer hessarati however judge made finding manner communication breach duty arising 19 2 nsw act cavanagh j held finding breach failing computer model establish breach exposed worker risk injury 20 241 onus respondent establish causation respondent could without establishing failure undertake computer modelling exposed demolition worker risk health safety whilst undertaking demolition work 63 respect difficult see element described second sentence raise question causation second sentence reframed state prosecution must establish worker exposed risk gce could reasonably eliminated minimised performing computer modelling question causation removed connection need proved risk worker exposed reasonably practicable measure would reduced risk trial judge find gce failed take reasonable practicable measure would reduced risk reason prosecution breach 32 bound fail cavanagh j continued 242 conceptually difficult understand could demolition worker following gce advice evidence computer modelling gce sequencing advice would shown 243 view accepting causal connection failure undertake computer modelling worker exposed risk health safety trial judge erred considering causation question prism gce time breach rather work exposed worker risk time demolition work 244 evident honour finding follows 344 creation computer model reasonably practicable measure would allowed gce advice tested thereby eliminating minimising risk unplanned structural collapse absence computer model gce advice eliminate minimise risk unplanned structural collapse exercise mr grasso engineering judgement fallible resulting potential risk come home course demolition 245 correct say absence computer modelling gce advice eliminate minimise risk thus ensure health safety required 19 2 answer question failure undertake computer modelling time giving advice substantial cause risk worker exposed time work especially circumstance following advice 246 correct say exercise engineering judgment gce fallible resulting potential risk come home course demolition potential risk come home whilst worker demolishing roof result advice given worker following gce advice 64 respect reason given paragraph 245 would apply equal force even reference substantial cause removed read effect risk worker exposed could minimised eliminated computer modelling undertaken breach duty gce failing computer model advice expose worker risk faced day roof collapsed gce sequencing advice shown carry latent risk modelling would removed moreover hassarati adopt demolition sequencing advice given gce undertook work accordance misinterpretation advice indeed cavanagh j went state conclusion way rely causation commonly used sense spoke directly gce breach exposing worker risk 21 249 view trial judge erred finding causation element 32 established non compliance failure undertake computer modelling exposed demolition worker risk health safety different question breach question whether looking prospectively worker put risk form failure undertake modelling 250 submission deficiency advice making clear exposed worker risk death injury assist respondent without finding breach basis however completeness party seemingly take different view reason finding non compliance particular e deal additional causation finding 251 reason worker exposed risk time demolishing following qcua booklet arnold sketch respondent would need establish causal connection gce advice methodology adopted worker 65 contrary construction 32 consider element exposure prism causation case would find notwithstanding brake defect failure instruct mr hick effective use gear retard speed truck descending freeway significant cause risk collision vacuum truck road user arising inability stop truck notwithstanding brake defect 66 would dismiss ground 5 appeal evidence mr hick experience cleanaway procedures67 mr hick received heavy vehicle licence training g l heavy vehicle driving centre june 2014 enrolled training 22 june 2014 trained 23 24 june road included descent evidence approximated descent freeway training isuzu tipper truck three axle road ranger gear box 15 speed instructed need give attention appropriate gearing particular instructed use lower gear descent use brake travelling downhill trainer described mr hick good candidate heavy vehicle licence 68 mr hick gave following evidence training 22 179 relatively basic would thought know rocket science mean choose gear appropriate speed limit well truck weight road guess driver way matter smart safe basically teach q told go determining appropriate gear driving going downhill monitor speed rev control truck everything completely normal licence variety 180 q course training driving downhill recall anything told choice gear downhill descent commenced simply select gear feel appropriate descent coming hold safe speed really feel like anything would ordinary quite standard sort training q back june 2014 knowledge told would feel right gear going hill matter knowing vehicle driving understanding rev speed gear keep selecting appropriate gear start descent 69 cross examination hick agreed part training provided vehicle awareness document asked whether understood meant heading truck bus must use low gear signage q event suggest time finished training g l fully understood sign truck bus must use low gear signage meant driver put truck gear would restrain truck lower applicable speed limit without need use primary brake yes 70 pause make perhaps trite observation one thing know objective must achieved e selection gear keep speed heavy vehicle application speed limit another know practically selecting gear entering speed zone allow gear change change keep vehicle within speed limit regard steepness descent 71 mr hick testified could recall cleanaway asking heavy vehicle driving experience experience driving freeway accident experience kind driver must meet objective stated vehicle awareness document descent freeway approach intersection collision occurred 72 following fact concerning salient feature freeway agreed 1 apex descent approximately 7 6 kilometre glen osmond road intersection following sign present truck bus prepare use low gear next 6 km b truck bus must use low gear next 6 km 2 120 metre east crafers exit ramp prior waverly ridge road overpass two vertically affixed sign read descending order 60 ahead truck 5 axle vacuum truck driven mr hick dual axle vehicle 3 18 august 2014 speed limit applied vehicle track south eastern freeway truck five axle 100 km h apex descent waverly ridge road overpass heysen tunnel b 90 km h heysen tunnel c 100 km h heysen tunnel point 1220 metre north west cross road intersection 80 km h stretch 1220 metre 630 metre north west cross road intersection e 60 km h 630 metre north west cross road intersection intersection 73 also agreed two arrester bed freeway one heysen tunnel 2 5 km 74 truck driven mr hick 1999 isuzu fvr 900 model tank truck dual axle 4x2 vehicle seven speed synchromesh manual gearbox exhaust airbrake drum brake front rear wheel waste capacity 9000 litre 75 vacuum truck reached speed 151 9 km h colliding vehicle busy intersection freeway cross road glen osmond 76 dr rechnitzer examined front brake drum vacuum truck concluded blueish tinge significantly overheated extent brake effectiveness would reduced brake fade likely found lining rear brake worn fixing divot brake drum worn exhibited significant grooving rear brake drum lining replaced prior subject collision concluded surprisingly reduced braking capacity factor contributing incident appellant surprisingly emphasised role played defective brake causation collision referring condition brake elephant room 77 accepted defective condition brake exposed mr hick freeway user high risk collision vacuum truck others however necessarily follow many appellant submission imply material sense something remote fanciful risk also arise circumstance conduct omission notorious fact cause industrial accident often multi factorial also precept workplace safety reason multiple safeguard necessary 78 dr rechnitzer driven freeway stirling exit testified exit point collision distance 9 3 km descent 440 metre sign along route limiting speed directing heavy vehicle use low gear dr rechnitzer concluded long steep downhill route clearly problem regard truck risk brake fade deposed historically freeway known location heavy vehicle speed related incident use safety ramp dr rechnitzer emphasised length steepness descent portion freeway pose risk brake failure 79 prosecution witness employee cleanaway gave evidence safety concern employee driving vacuum truck freeway 80 steepness associated risk freeway notorious fact court sitting adelaide take judicial notice 81 several cleanaway employee gave evidence training new driver marcus melbourne trained operation grease trap worked another driver three four day training involved city driving mainly flat driving ability formally assessed employed six month 82 darren cleary employee cleanaway three four year time incident received site induction first employed driver training particular trained use arrester bed assigned buddy driver week first employed showed use grease trap unaware training specifically addressed driving vacuum truck freeway 83 mr cleary testified accompanied mr hick two day truck 349 11000 12000 litre tanker truck fitted automatic transmission drove around tanunda nuriootpa hilly road concern mr hick driving 84 heath turner fleet supervisor scheduled work industrial division risk assessment developed various customer site recollection risk assessment adelaide hill contract described induction involved use buddy system testified informal judgment would made competence newly employed driver aware risk assessment driving heavy truck freeway prior 18 august 2014 85 wayne steed cleanaway regional manager december 2012 november 2014 aware risk assessment dealt specifically hazard risk associated driving heavy vehicle freeway 86 leilia stivell compliance co ordinator 2014 prepared risk assessment work instruction work site specific identified document headed transpacific risk assessment dated 20 february 2012 gave following simplistic assessment driving truck road hazard include distraction speeding inattentive driving fatigue road user vehicle pedestrian cyclist etc hazard contribute risk road accident 87 another document risk collision heavy truck pedestrian identified likely consequence significant 88 cleanaway document entitled new heavy vehicle law south eastern freeway created incident referred need descending freeway use right gear safe descent expected installation road sign would require truck use gear low enough limit speed without need use primary brake 89 another cleanaway draft safety protocol entitled quick reference guide tt wingfield liquid fuel manual created collision read part 23 new fleet driver must drive heavy vehicle unsupervised assessed competent independent assessor heavy vehicle driving assessment manual heavy rigid unit must include south eastern freeway driving appropriate supervision new driver mean driver shall accompanied competent driver minimum two year experience driving operating vacuum tanker truck transpacific 90 m stivell unaware policy document created 18 august 2014 required driver assessed relation vehicle within fleet requiring driver assessed specifically driving freeway aware assessment driver relation automatic manual gearbox date 91 gregory skinner testified august 2014 employed cleanaway trainer assessor new existing driver testified would schedule assessment driver depending busy assessment would normally occur driver went truck always case gave evidence new driver may accompany driver non driving role would conduct assessment became available could recall whether transpacific heavy vehicle driver induction booklet p9 use 2014 identified document entitled transpacific driver safety induction p10 used 2014 assessment template document assessment competency included task like start proceduresafe manual handlingsafe work near powerlinesuse store maintain vehicle equipmentreview emergency procedure checklistreport safety quality environment issue 92 mr skinner described cleanaway buddy system testified length time driver would assigned experienced driver may two four week depending experience 93 mr skinner testified 14 august undertook complete assessment mr hick driving ability truck automatic gear box road steep decline magistrate made following finding mr skinner assessment mr hick 14 august 24 183 greg skinner said performed driving assessment darren hick unaware long hick employed cleanaway speaking prior assessment hick held heavy rigid vehicle licence assessment took place heavy rigid vehicle fitted automatic transmission assessment unplanned occurring 14 august 2014 commencing 10 30 unplanned assessment used form intended existing driver rather one intended new driver usual assessment undertaken unplanned form used simmer tab 34 p4 184 skinner explained task listed assessment non exhaustive said reference document 34 applicable depended type vehicle used assessment instance gear changing automatic transmission agreed form contained 13 task capacity record outcome competent training required yet competent 185 first task pre departure check completed vehicle already running time assessment said discussion point 186 task 2 cabin check box marked gear lever gear marked n truck automatic vehicle 187 task 5 gear changing clutch operation included form truck fleet manual transmission hick assessed relation task contained task 5 assessment competence otherwise undertake task 188 task 6 automatic transmission box marked us low gear marked n conduct competency encounter steep hill assessment 189 assessment hick curtailed virtue fact engaged work duty day 190 relation task 9 engaged appropriate gear prior turn marked n due fact vehicle used automatic manual vehicle 191 referring assessment summary tpi 1337 witness acknowledged hick recorded competent relation task 5 6 9 despite certain task assessed document recorded operator assessed competent operate task 343 witness conceded document accurately record outcome assessment 343 192 witness said plan undertake task missed completing questionnaire hick later stage 343 193 witness said aware driver assessing likely engaged activity led driving adelaide hill freeway descent94 magistrate summarised evidence given mr hick descent freeway vacuum truck 18 august follows 25 235 hick said day question working another cleanaway employee marcus melbourne driving truck task empty residential septic waste tank adelaide hill 428 involved travelling south eastern freeway loaded truck commenced descend south eastern freeway ascent south eastern freeway truck 1st 2ndgear speed slow estimated 10 20 km h 236 return journey start descent south eastern freeway travelling 5thgear speed estimated 60 70 km h commenced decline speed maintained 431 proceeded freeway decline got steeper found speed vehicle increasing 431 exhaust brake response increase speed truck applied footbrake vehicle 433 within second alarm sounded continued use footbrakes still 5th gear unable change gear truck going fast change gear shift using brake 434 applied brake much impact slowing vehicle wished applied foot brake passed arrester bed 435 said time needed use brake extent passed arrester bed said may otherwise touched brake limit 1 2 km h heavy braking 237 cross examination witness said aware start decline applicable speed limit vehicle 100km h 441 taken decision make descent lower speed said 5thgear easily restrained speed vehicle 100km h 442 agreed second arrester bed speed 1imit changed 80km h agreed second arrester bed 443 applied primary brake speed vehicle increasing approaching lower speed limit zone 80km h 444 agreed nothing much happening agreed decision travel substantially speed limit applied brake alarm sounded indicating air brake trying shift vehicle lower gear unable vehicle going fast 238 examination witness clarified point 450 applied brake speed vehicle increased 80km h 450 application brake reduced speed small amount decline road increased speed vehicle continued increase alarm sounded application brake effect retarding vehicle 95 following salient aspect account noted first mr hick descended freeway much higher gear 5 7 gear engaged ascent secondly unsuccessful attempt change gear truck speed already increased 60 70km h 80km h passed second arrester bed time fast approaching 80km h zone found necessary apply footbrake allow change lower gear brake le effective hoped truck slowed little sounded alarm thirdly decline steepened truck speed increased braking effect 96 earlier observed knowing advance point descent gear changed truck slow enters lower speed zone necessary safely come complete stop requires experience training plainly mr hick attempted change 5thgear late 5thgear high gear limit truck speed 60km hour 97 evidence form concern driver evidence dr rechnitzer location two arrester bed descent part freeway particularly long steep relative major adelaide road mr hick experience instruction training tailored vacuum truck driving freeway ass point along descent progressively engage lower gear mr hick evidence possible change 5thgear lower gear truck travelling 60 kph 70 kph cleanaway adduce evidence suggest due latent defect reason unexpected 98 true brake defect contributed inability engage lower gear remembered apex descent sign warning truck driver use low gear understood mr hick mean gear low enough keep truck within applicable speed limit without using brake ground 2 reliance dr rechnitzer99 report dr rechnitzer received evidence chief stated 26 would appropriate necessary cleanaway ensure competence novice hr driver mr hick first arranging training form mr hick passenger competent experienced cleanaway driver isuzu truck travelling subject route shown correct safe driving practice correct low gear breaking slow vehicle except emergency reasonably practicable step would included ensuring roadworthy condition heavy vehicle particular brake instruction training driver travel safely route including low gear selection without need brake except emergency emergency use runoff safety ramp preferably training experienced driver would practical indeed appropriate part competency assessment new driver mr skinner confine assessment ad hoc unplanned assessment include next day necessary 100 interpolate mr hick accepted standard selection appropriate gear said understood rev speed gear keep 101 magistrate accepted logical consistent evidence following opinion dr rechnitzer report 27 manual synchromesh gearbox transmission general guide selecting appropriate low gear usually gear lower would used travel hill also noted post incident sa video descent south eastern freeway safely correct gear hold truck specified speed limit speed going hill without using brake driver find selected right low gear e vehicle speeding use brake come stop start lower gear emergency driver still try change gear training e g matching engine road speed using double de clutching 102 dr rechnitzer opinion supported footnote reference usa 2005 model commercial driver licence manual stated starting hill slow shift speed control without using brake hard otherwise brake overheat lose braking power downshift starting hill make sure low enough gear usually lower gear required climb hill 103 true necessary implication direction dr rechnitzer opinion gear selected must low enough control vehicle within safe speed throughout descent dr rechnitzer explained passage cross examination set following paragraph magistrate reason 28 205 honour whole principle one got exhaust brake give certain retardation need low enough gear 60 whichever speed pick whether 40 60 whole idea use primary brake whole idea run risk brake fade losing control stop example hurry 206 travel hill like gear maintain speed without using service brake whole point maintain control without using service brake say use low gear 208 whole point hold vehicle distance sure whether inferring much mishearing question point whether held 6 km point got hold distance lose brake time sure whether question holistic limited point wanted rehear might misheard critical point use saying okay held 6 km thereafter sped hold know different gradient caveat want make important one though 104 obvious enough evidence gear selected point descent must able hold vehicle speed appropriate part descent also speed allow change lower gear without using foot brake becomes necessary appropriate evidence contradicting dr rechnitzer topic adduced cleanaway 105 particular attention devoted cross examination opinion expressed dr rechnitzer report 106 put dr rechnitzer cross examination experienced truck driver performed test determine gear mr hick first selected could opine fifth gear selected mr hick high context put dr rechnitzer mr hick evidence truck maintained speed 75 80 kph descent dr rechnitzer accepted opinion higher gear 4thshould selected guess 107 may accepted pointof dr rechnitzer evidence gear generally higher gear used ascent low enough constrain speed within safe limit throughout descent mr hick adhere rule trained dr rechnitzer opinion rule safe gear selection contradicted evidence evidence mr hick inability change gear absence evidence providing alternative explanation inability engage lower gear brake failure risk low gear calculated guard strongly supported inference 5thgear selected mr hick high gear commence descent failure train mr hick point descend engage sufficiently low gear therefore exposed mr hick others risk injury collision braking power truck might adequate slow stop truck 108 magistrate therefore correctly concluded 29 accept evidence dr rechnitzer regarding circumstance incident 18 august 2014 particular vehicle reduced braking capacity due defective brake exacerbated fact vehicle fifth seven gear resulting little retardation engine braking meaning vehicle could run away reach high speed conclusion accord dr rechnitzer observation condition brake account given hick apparent hick evidence despite fact selected fifth gear initially held speed vehicle gradient increased speed vehicle constrained increased caused hick apply brake along fact 80km h zone approaching brake failed vehicle unrestrained brake gear became control 109 appellant ground 2 contends magistrate erred admitting evidence dr rechnitzer alternatively giving weight opinion based specialised knowledge study research undertaken dr rechnitzer honour degree civil engineering monash university master engineering science melbourne university obtained doctorate philosophy engineering monash university undertaken course crash analysis reconstruction adjunct associate professor transport road safety research university new south wale panel member safety institute australia presented 70 conference subject worked excess 30 year private consultant work place vehicle incident given evidence often supreme court county court dr rechnitzer carried undertaken project considered risk factor safety measure transport fleet surprising magistrate accepted dr rechnitzer qualification give opinion evidence question safe management truck road including long steep descent like freeway proper training driver vehicle 110 appellant submission fail recognise dr rechnitzer expertise safety measure appropriate reasonably practicable management heavy vehicle fleet dependent expertise drive heavy vehicle 111 seen magistrate relied dr rechnitzer evidence 1 need select gear appropriate descent restrain heavy vehicle within applicable speed limit without braking 2 mechanism caused collision 3 training provided mr hick assessment competence drive vacuum truck freeway including low gear selection 112 appellant complains magistrate erred admitting relying dr rechnitzer evidence dr rechnitzer never travelled freeway vehicle like vacuum truck never driven heavy vehicle heavy vehicle driver licence never heavy vehicle licenced assessor trainer purport knowledge base opinion general industry practice standard guideline analysis aware content legislative scheme training assessing certifying competence heavy vehicle driver aware mr hick trained assessed competent drive manual automatic transmission heavy vehicle might called drive qualified done brake fade analysis know gear would held vacuum truck speed 60kph know speed would held 5thgear asserted mr hick instructed travel freeway 60kph even though speed limit 100kph vehicle without researching reason imposition limit agreed relied instruction mr hick used brake control speed way freeway knowledge statutory licencing assessment regime 113 observe prosecution rely dr rechnitzer opinion appellant instructed mr hick drive freeway gear would hold speed truck 60kph le 114 magistrate explained notwithstanding valid criticism dr rechnitzer opinion accepted correctness reliability evidence given dr rechnitzer appropriate safe driving method risk posed south eastern freeway heavy vehicle opinion sought relied upon prosecution 30 115 earlier observed magistrate relied primarily dr rechnitzer opinion magistrate view undermined valid criticism made view expressed dr rechnitzer need select gear maintained safe speed throughout descent without use brake appellant criticism dr rechnitzer detract weight evidence critical question dr rechnitzer training research experience allowed give opinion even though hold heavy vehicle licence driven heavy vehicle freeway assessor trainer heavy vehicle driver dr rechnitzer required understand content legislative licencing scheme licence mr hick obtained dr rechnitzer opinion based general principle gear selected descent higher gear used ascent mr hick evidence 5thgear keep vacuum truck within speed limit allow change lower gear might able 116 necessary dr rechnitzer know highest gear truck could safely negotiated downhill descent sufficient experience give opinion general principle would govern gear selection appellant criticism dr rechnitzer opinion mr hick instructed travel freeway 60kph misplaced several reason first neither magistrate prosecution relied opinion secondly event criticism dr rechnitzer unilaterally suggesting speed le speed limit area conflates maximum speed limit road authority might impose safe speed particular vehicle particular circumstance road traffic offence drive speed greater 100kph entail conclusion driving particular vehicle speed le 100kph reasonable safety precaution 117 criticism dr rechnitzer done brake fade analysis premised argument causation proper construction section arise reason given event common ground brake failure matter mr hick found necessary use primary brake control much descent attempted could engage lower gear closer intersection 118 cleanaway submits prosecution resiled allegation mr hick driven competently freeway day question prosecution disavowed reliance suggestion mr hick incompetent generally maintained allegation engaged low enough gear descent appellant contention never put mr hick selected wrong gear also misplaced mr hick charged mr hick party prosecution case evidence relevant absence particular training gear selection vacuum truck freeway account drove truck freeway 119 point brake would applied even lower gear selected order stop cross road intersection point order minimise risk brake supply adequate retardation bring truck stop appropriate safe measure mr hick ought instructed select gear throughout descent minimise reliance primary brake slow truck bring standstill ground 3120 ground 3 appellant complains magistrate erred relying draft document referred 86 87 produced incident evidence capacity practicability appellant implement measure minimise risk magistrate relied evidence evidence might done magistrate regard document follows 31 294 defence position document zero probative value created incident advance prosecution case see para 73 74 defence closing submission described distraction see para 75 para 33 34 attachment defendant closing submission reference made heading hindsight eschewed high court decision particular judgment honour hayne j vairy v wyong shire council 2005 hca 62 2005 223 clr 422 defendant asserts post incident measure taken relevant relevant demonstrate might done rather done 296 agree however evidence probative value whilst creation document must treated form admission defendant cannot treated evidence done nevertheless provide evidence might done extent demonstrate capacity defendant company put place measure kind alleged reasonably practicable prosecution provide evidence availability measure alleged 297 view conclusion also available beyond reasonable doubt failure take identified measure would reduced risk possibility death serious injury satisfied inference readily open assessment defendant competence driver hick perform identified task would given defendant direct knowledge level competence undertake task assessment may revealed indeed competent undertake task may also disclosed competent undertake task sense deficiency could addressed revealed defendant conducted assessment however knowledge hick competence undertake task limited fact satisfied examiner obtained unrestricted licence suggested measure would provided opportunity check deficiency driver competence undertake task would provided safe guard defendant hick assigned task 18 august 2014 failing take step defendant failed minimise risk failed minimise possibility death serious injury result vehicular collision 121 nonetheless appellant contends measure simply contemplated never implemented piece paper writing plainly proposal put consideration pcbu employed mr hick evidence cleanaway thought least may possible existence cast evidentiary onus cleanaway adduce evidence proposal reasonably practicable event proposal large extent obvious measure cleanaway system assessing driver place mr skinner deficiency deployed irregularly effectively implemented timely manner mr hick set heavy vehicle manual gear box descent particularly high risk required well trained experienced driver ground 4122 ground four cleanaway complains magistrate conclusion reasonable practicable measure taken supported evidence magistrate concluded training instruction dr rechnitzer testified ought given particularised charge reasonably practicable 32 309 taken factor account evidence regard cost suggested measure however given finding already made relation charge satisfied beyond reasonable doubt associated cost would grossly disproportionate magnitude risk genuine possibility risk evidenced incident degree harm might result extreme defendant company new ought known risk new ought reasonably known driver hick although holder unrestricted heavy vehicle licence statutory scheme recently obtained licence lacked practical experience driving manual heavy vehicle particular driving heavy vehicle south eastern freeway furthermore defendant company place resource undertake measure would minimised risk 310 taking matter account satisfied beyond reasonable doubt suggested measure relation count one reasonable pcbu position defendant would taken obvious rudimentary necessary driver hick assigned task 18 august 2014 view step reasonably pcbu would taken 311 coming conclusion taken account defendant argument concerning industry standard specifically whether pcbus shown taken measure alleged evidence topic however absence evidence cause alter finding measure reasonably practicable applying criterion contained 18 act 123 evidence appellant employee system place demonstrate reasonable practicability providing training kind described dr rechnitzer freeway road greater adelaide metropolitan area unique challenge risk well known motorist used described evidence dr rechnitzer appellant trainer assessor available reason reasonably practicable engage one give instruction mr hick proper gear selection time employment morning 18th appellant adduce evidence 124 appellant interweaves within many submission reliance fact mr hick granted heavy vehicle licence effect grant licence permit sense criminal offence drive heavy vehicle unaccompanied experienced driver sense licensing minimum requirement everyday experience learnt drive played part teaching others drive licensing mark commencement period honing skill amassing experience unsupervised driver minimum requirement conclusion125 would allow appeal respect conviction count 3 8 would otherwise dismiss appeal 1 wyong shire council v shirt 1980 hca 12 1980 146 clr 40 2 kidman co ltd v lowndes anor 2016 ntca 5at 62 63 3 kidman co ltd v lowndes anor 2016 ntca 5 4 diemould tooling service pty ltd v oaten 2008 sasc 197 2008 101 sasr 339at 30 39 5 commonwealth comcare v cleanaway operation pty ltd acn 010 745 383 transpacific industry pty ltd 2021 samc 54 6 chugg v pacific dunlop ltd 1988 vicrp 49 1988 vr 411 7 diemould tooling service pty ltd v oaten 2008 sasc 197 2008 101 sasr 339 8 diemould tooling service pty ltd v oaten 2008 sasc 197 2008 101 sasr 339at 18 19 28 29 9 director public prosecution v vibro pile aust pty ltd 2016 vsca 55at 80 85 10 section 20 1 seebaiada poultry pty ltd v queen 2012 hca 14 2012 246 clr 92 100 14 15 11 see eg state new south wale v sullivan 2005 nswircomm 198 2005 143 ir 57 74 49 50 sullivan andnew south wale department education training department juvenile justice v cahill 2 2011 210 ir 112 180 261 cahill 2 12 note nsw court appeal spoke causal relationship omission risk simpson design associate pty ltd v industrial court new south wale 2011 nswca 316 2011 213 crim r 340 342 3 4 360 77 simpson design 13 kirk 2010 239 clr 531 553 13 frewstal 2015 vsca 266 41 126 127 14 kirk 2010 239 clr 531 553 14 15 grasso v safework nsw 2021 nswcca 288 16 ibid 157 17 grasso v safeworknsw 2021 nswcca 288at 183 192 18 grasso v safework nsw 2021 nswcca 288at 225 226 230 232 19 wallace v kam 2013 250 clr 375 2013 hca 19at 26 french cj crennan kiefel gageler keane jj 20 grasso v safework nsw 2021 nswcca 288at 241 246 21 grasso v safework nsw 2021 nswcca 288at 249 251 22 commonwealth comcare v cleanaway operation pty ltd acn 010 745 383 transpacific industry pty ltd 2021 samc 54 23 received p8 24 commonwealth comcare v cleanaway operation pty ltd acn 010 745 383 transpacific industry pty ltd 2021 samc 54 25 commonwealth comcare v cleanaway operation pty ltd acn 010 745 383 transpacific industry pty ltd 2021 samc 54 26 commonwealth comcare v cleanaway operation pty ltd acn 010 745 383 transpacific industry pty ltd 2021 samc 54 298 27 dr george rechnitzer final report fatal collision 10 august 2016 page 37 28 commonwealth comcare v cleanaway operation pty ltd acn 010 745 383 transpacific industry pty ltd 2021 samc 54 29 commonwealth comcare v cleanaway operation pty ltd acn 010 745 383 transpacific industry pty ltd 2021 samc 54 241 30 commonwealth comcare v cleanaway operation pty ltd acn 010 745 383 transpacific industry pty ltd 2021 samc 54 227 31 commonwealth comcare v cleanaway operation pty ltd acn 010 745 383 transpacific industry pty ltd 2021 samc 54 32 commonwealth comcare v cleanaway operation pty ltd acn 010 745 383 transpacific industry pty ltd 2021 samc 54
WILLIAMSON -v- THE BENDIGO ADELAIDE BANK LTD [No 2] [2012] WASCA 269 (26 November 2012).txt	williamson v bendigo adelaide bank ltd 2 2012 wasca 269 26 november 2012 last updated 18 december 2012jurisdiction supreme court western australiatitle court court appeal wa citation williamson v bendigo adelaide bank ltd 2 2012 wasca 269coram pullin janewnes jaheard 26 november 2012delivered 26 november 2012file cacv 55 2012between harley robert williamsontangiwai jacqui maxwellappellantsandthe bendigo adelaide bank ltdrespondenton appeal jurisdiction supreme court western australiacoram master sandersonfile civ 2361 2011catchwords practice procedure stay execution stay court appeal judgment pending application special leave appeal high court jurisdiction grant circumstance discretion grant stay exercisedlegislation civil judgment enforcement act 2004 wa supreme court court appeal rule 2005 wa result application suspension order stay dismissedcategory brepresentation counsel appellant personrespondent appearancesolicitors appellant personrespondent herbert smith freehillscase referred judgment eastland technology australia pty ltd v whisson 2003 wasca 307 2003 28 war 308hall v hall 2007 wasca 94hamersley iron pty ltd v lovell 2 1998 20 war 79jennings construction ltd v burgundy royale investment pty ltd 1 1986 hca 84 1986 161 clr 681williamson v bendigo adelaide bank ltd 2012 wasca 2081reasons court appellant apply order following term judgment entered appellant master sanderson chamber 16th april 2012 civ 2361 2011 set aside final judgment entered high court australia filed special leave appeal p36 2012 sic property 8 mastalerz retreat settler ridge toodyay western australia 6566 bailiff restrained seizing aforementioned property 27 11 2012 1000 hour sic 2 master judgment obliged appellant deliver possession 8 mastalerz retreat toodyay pay respondent 285 583 88 3 appellant appealed court judgment appeal commenced time appellant application extension time dismissed none proposed ground appeal reasonable prospect succeeding seewilliamson v bendigo adelaide bank ltd 2012 wasca 208 4 first named appellant deposed application special leave appeal judgment accepted filing high court appellant application suspension order unders 15of thecivil judgment enforcement act 2004 wa stay r 43 thesupreme court court appeal rule 2005 wa concerning master judgment 5 special circumstance shown suspension order may made see 15of thecivil judgment enforcement act also case application stay r 43 seehall v hall 2007 wasca 94 high court also jurisdiction grant stay court application first made seejennings construction ltd v burgundy royale investment pty ltd 1 1986 hca 84 1986 161 clr 681 684 case brennan j said exceptional circumstance shown stay would ordered 6 principle usually govern application kind well known seeeastland technology australia pty ltd v whisson 2003 wasca 307 2003 28 war 308andhamersley iron pty ltd v lovell 2 1998 20 war 79 first question whether application special leave rendered nugatory suspension order stay granted appellant deposes bailiff taking possession property tomorrow although sale auction still time away court proceed assuming sale take place special leave application heard therefore application special leave rendered nugatory unless suspension order stay granted 7 however end matter necessary show application special leave reasonable prospect succeeding appellant disclosed proposed ground appeal high court court informed ground appeal offered appeal court repeated appeal high court ground reasonable prospect success reason given application made court extension time result application dismissed
Jenkins v National Australia Bank Ltd [1999] FCA 1758 (13 December 1999).txt	jenkins v national australia bank ltd 1999 fca 1758 13 december 1999 last updated 22 december 1999federal court australiajenkins v national australia bank ltd 1999 fca 1758heather joy jenkins v national australia bank ltdv7755 1999thomas jenkins v national australia bank ltdv7756 1999ryan jmelbourne13 december 1999in federal court australiavictoria district registryv7755 1999between heather joy jenkinsapplicantand national australia bank ltdrespondentjudge ryan jdate order 13 december 1999where made melbournethe court order 1 application set aside bankruptcy notice refused 2 respondent cost application part petitioning creditor cost petition issued non compliance bankruptcy notice 3 petition issued behalf respondent sequestration order applicant based non compliance bankruptcy notice made returnable unless otherwise ordered ryan j note settlement entry order dealt order 36 federal court rule federal court australiavictoria district registryv7756 of1999between thomas jenkinsapplicantand national australia bank ltdrespondentjudge ryan jdate order 13 december 1999where made melbournethe court order 1 application set aside bankruptcy notice refused 2 respondent cost application part petitioning creditor cost petition issued non compliance bankruptcy notice 3 petition issued behalf respondent sequestration order applicant based non compliance bankruptcy notice made returnable unless otherwise ordered ryan j note settlement entry order dealt order 36 federal court rule federal court australiavictoria district registryv7755 of1999between heather joy jenkinsapplicantand national australia bank ltdrespondentandv7755 1999between thomas jenkinsapplicantand national australia bank ltdrespondentjudge ryan jdate 13 december 1999place melbournereasons judgment1 court application extend time compliance bankruptcy notice served applicant application made pursuant tos 41 6a thebankruptcy act 1966 theact provides expiration time fixed compliance requirement bankruptcy notice proceeding set aside judgment order respect bankruptcy notice issued instituted debtor b application made court set aside bankruptcy notice court may subject subsection 6c extend time compliance bankruptcy notice subsection 6c ofs 41provides debtor applies court extension time complying bankruptcy notice ground proceeding set aside judgment order respect bankruptcy notice issued instituted debtor b court opinion proceeding set aside judgment order issued bona fide ii prosecuted due diligence court shall extend time compliance bankruptcy notice 2 judgment entered applicant supreme court victoria 1 june 1998 sum 848 227 83 appeal judgment dismissed court appeal 8 april 1999 applicant sought high court special leave appeal order court appeal application special leave still pending may told bar table heard february 2000 applicant conceded inability pay part judgment debt asserted absence creditor counsel applicant relied judgment kiefel j inre baker ex parte baker v staple qn613 1995 federal court australia unreported 4 september 1995 3 accept purpose argument application special leave treated proceeding kind contemplated bys 41 6a set aside judgment present bankruptcy notice issued however court retains wide discretion whether set aside bankruptcy notice even satisfied matter identified in 41 6c kiefel j said inre baker para 4 clearly discretion sub section large seere taylor ex parte deputy commissioner 1983 fca 316 1983 74 flr 377 379 say account may taken whatever factor appear relevant particular case say much position one factor consider namely existence abona fideand arguable appeal instituted prosecuted diligence case see warrant inquiring relevant merit ground appeal forming view outcome think sound practical consideration course pursued least presented court guise factor going discretion even fully argued case ground appeal hopeless completely without merit finding could fairly readily made arguable appeal indeed view may taken institutedbona fidebut purpose instance delay case noteworthy argument prospect ranged hour honour went paragraph 5 observe case concerned whether adjournment petition ought granted appeal outstanding hold generally desirable permit conclusion investigation liability sequestration order made ahern v deputy commissioner taxation 1987 fca 312 1987 76 alr 137andadamopoulos anor v olympic airway sa anor 1990 fca 280 1990 95 alr 525 least shown dispute genuine respect recently referred requirement inre dowson ex partethe abovenamed v kaku1 september 1995 similar approach ought view apply grant extension time comply bankruptcy notice honour quoted fromahernat p148 went observe subsection 6a 6b 6c ofs 41 providing extension time judgment order investigation recognise serious consequence follow bankruptcy notice complied least proceeding taken genuine arguable course sub section allows person ought called upon answer notice solvency tested without order upon based first tested would hardly comfort judgment debtor outcome judgment set aside faced flow committed act bankruptcy failing comply sub section must taken recognise problem think point suggest judgment creditor ought required make payment creditor secures repayment event appeal succeeds 4 present case applicant exhausted appeal right foundational judgment conceded hope paying judgment debt judgment set aside high court accordingly possibility kiefel j referred passage quoted judgment debtor required make payment pending resolution proceeding high court arise 5 circumstance seems court sanction delay commission aprima facieavailable act bankruptcy allow pending proceeding high court taken account exercise discretion kind discussed full court inahern scase discretion whether adjourn hearing creditor petition one issue founded act bankruptcy 6 facilitate exercise discretion full understanding material presently court shall direct petition issued respondent either debtor made returnable 7 follows application set aside bankruptcy notice refused shall order respondent cost application part petitioning creditor cost petition issued non compliance either bankruptcy notice certify preceding seven 7 numbered paragraph true copy reason judgment herein honourable justice ryan associate dated 13 december 1999counsel applicant mr v palmer mr williamssolicitor applicant tisher liner cocounsel respondent mr schlichtsolicitor respondent russell kennedydate hearing 13 december 1999date judgment 13 december 1999
Massalski & Riley (No 4) [2022] FedCFamC1F 832 (28 October 2022).txt	massalski riley 4 2022 fedcfamc1f 832 28 october 2022 last updated 16 january 2023federal circuit family court australia division 1 massalski riley 4 2022 fedcfamc1f 832file number syc 496 2015judgment harper jdate judgment 28 october 2022catchwords family law cost husband seek cost proceeding since 24 december 2019 order cost previously made proceeding 25 may 2020 wife recommenced proceeding 2021 seeking final property order varied wife subsequently filed numerous interim application seeking impugn previous order order previously made summarily dismissing wife application declaring wife vexatious litigant wife continues refuse accept principal finality cost ordered indemnity basis legislation family law act 1975 cth 117cases cited atkins hunt cost 2017 famcafc 131colgate palmolive co anor v cussons pty ltd 1993 fca 801d cost 2 2010 flc 93 435 2010 famcafc 64pbf child representative af legal aid commission tasmania trf lkl 2005 33 fam lr 123 2005 famca 158han ngo 2021 famcafc 97harris dewell 2 2018 flc 93 863 2018 famcafc 180kohan kohan 1993 flc 92 340 1992 famca 116limousin v limousin cost 2007 38 fam lr 478 2007 famca 1178massalski riley 2022 65 fam lr 73 2022 fedcfamc1f 36massalski riley 2 2021 famcafc 152massalski riley 3 2022 fedcfamc1f 562moorcroft moorcroft 2020 60 fam lr 361 2020 famcafc 83parke estate late parke 2016 flc 93 748 2016 famcafc 248prantage prantage cost 2014 famca 850robinson higginbotham 1991 flc 92 209 1991 famca 5sfakianakis sfakianakis 2019 59 fam lr 419 2019 famcafc 54vlug v poulos 1997 flc 92 778 1997 famca 47worth worth 2 2019 famcafc 126division division 1 first instancenumber paragraph 65date last submission 14 october 2022date hearing papersplace sydneythe applicant self represented litigantsolicitor respondent byrnes legalorderssyc 496 2015federal circuit family court australia division 1 m massalskiapplicantand mr rileyrespondentorder made harper jdate order 28 october 2022the court order applicant wife m massalski wife pay cost respondent husband mr riley husband assessed indemnity basis following application application case filed wife 27 may 2021 b application case filed husband 28 july 2021 c initiating application application case filed wife 10 august 2021 summary dismissal proceeding application proceeding filed wife 3 december 2021 response filed wife 6 october 2022 dismissed note form order subject entry court record note copy court reason judgment may subject review remedy minor typographical grammatical error r 10 14 b federal circuit family court australia family law rule 2021 cth record variation order pursuant r 10 13federal circuit family court australia family law rule 2021 cth section 121of thefamily law act 1975 cth make offence except limited circumstance publish proceeding identify person associated person witness involved family law proceeding noted publication judgment court pseudonymmassalski rileyhas approved pursuant tos 121 9 g thefamily law act 1975 cth reason judgmentharper j introductionthese property proceeding applicant wife m massalski wife respondent husband mr riley husband delivered several judgment matter relevant procedural history background proceeding set inmassalski riley 2022 fedcfamc1f 36 2022 65 fam lr 73 massalski 2 14 repeat said unless necessary judgment summary wife commenced proceeding 10 august 2021 seeking set aside final property adjustment order made 2019 property adjustment order pursuant tos 90smof thefamily law act 1975 cth act 4 february 2022 summarily dismissed wife application final order together numerous outstanding interim application husband also sought order declaring wife vexatious litigant application determined judgment delivered 5 august 2022 massalski riley 3 2022 fedcfamc1f 562 wife declared vexatious 4 february 2022 also made order party file written submission concerning cost following application event sought cost application case filed applicant 27 may 2021 b application case filed respondent 28 july 2021 c initiating application filed applicant 10 august 2021 summary dismissal proceeding application case filed applicant 3 december 2021 husband filed written submission 3 march 2022 seeking indemnity cost wife however application cost determined point view outstanding interim application yet determined court expectation application cost would made 23 august 2022 husband filed application proceeding seeking cost indemnity basis wife order subsequently made filing material application heard chamber paper order sought costsby way application proceeding filed 23 august 2022 husband seek following order m massalski pay cost mr riley proceeding application filed 24 december 2019 dismissed cost agreed assessed indemnity basis response filed 6 october 2022 wife seek respondent pay cost applicant proceeding held 9 october 2017 relation application partial property distribution dismissed order made 4 december 2017 respondent file sworn affidavit providing table showing amount rental income received property unit 2 f street suburb g period property occupied father period property rented aj estate agent mr zz provides disclosure identity cost consultant prepared bill submitted family court assessment relation proceeding syc 496 of2015 proceeding together copy tax invoice issued consultant mr zz provides cost disclosure agreement relation service provided mr riley proceeding related family law matter relation supreme court matter leave granted applicant file application proceeding seek stay order related appointment receiver order dated 25 august 2022 granted leave wife file affidavit response husband cost submission later 6 october 2022 wife filed two affidavit one 6 october 10 october latter filed time sought dispensation late filing regard affidavit husband sought cost application filed wife since 24 december 2019 however mcclelland dcj ordered 25 may 2020 wife pay husband cost proceeding 24 february 2017 date therefore since 25 may 2020 wife filed following application application case filed 1 december 2020 dismissed 22 december 2020 b application case filed 18 january 2021 application dismissed mcclelland dcj 5 march 2021 order cost c two application contempt filed 10 may 2021 dismissed 5 august 2022 inmassalski 3 application case filed 27 may 2021 summarily dismissed e application final order filed 10 august 2021 summarily dismissed f application case filed 10 august 2021 summarily dismissed g application proceeding filed 3 december 2021 also summarily dismissed according court file husband file material respect wife two contempt application respect application case filed 1 december 2020 therefore order cost three application remaining application husband seek cost therefore set 10 g summarily dismissed inmassalskion 4 february 2022 lawthe relevant principle respect cost well settled discussed full court inparke estate late parke 2016 famcafc 248 2016 flc 93 748 followed inatkins hunt cost 2017 famcafc 131 court wide discretion exercised judicially proceeding act applies starting point party shall bear cost 117 1 however court opinion justifying circumstance court may make order cost security cost court considers 117 2 considering order cost made court must regard factor set in 117 2a 2a considering order made subsection 2 court shall regard financial circumstance party proceeding b whether party proceeding receipt assistance way legal aid term grant assistance party c conduct party proceeding relation proceeding including without limiting generality foregoing conduct party relation pleading particular discovery inspection direction answer question admission fact production document similar matter whether proceeding necessitated failure party proceeding comply previous order court e whether party proceeding wholly unsuccessful proceeding f whether either party proceeding made offer writing party proceeding settle proceeding term offer g matter court considers relevant well settled one factor in 117 2a priority must one factor satisfied rather one factor may sufficient prantage prantage cost 2014 famca 850at 12 pbf child representative af legal aid commission tasmania trf lkl 2005 famca 158 2005 33 fam lr 123at 41 full court inmoorcroft moorcroft 2020 famcafc 83 2020 60 fam lr 361confirmed indemnity cost awarded exceptional circumstance see alsokohan kohan 1992 famca 116 1993 flc 92 340 limousin v limousin cost 2007 famca 1178 2007 38 fam lr 478 cost no2 2010 flc 93 435
SZHTA v Minister for Immigration and Citizenship [2007] FCA 300 (21 February 2007).txt	szhta v minister immigration citizenship 2007 fca 300 21 february 2007 last updated 12 march 2007federal court australiaszhta v minister immigration citizenship 2007 fca 300szhta v minister immigration citizenshipand refugee review tribunalnsd 1876 2006lindgren j21 february 2007sydneyin federal court australianew south wale district registrynsd 1876 2006on appeal federal magistrate court australiabetween szhtaappellantand minister immigration citizenshipfirst respondentrefugee review tribunalsecond respondentjudge lindgren jdate order 21 february 2007where made sydneythe court order 1 name first respondent amended read minister immigration citizenship 2 appeal dismissed 3 appellant pay first respondent cost appeal note settlement entry order dealt order 36 federal court rule federal court australianew south wale district registrynsd 1876 2006on appeal federal magistrate court australiabetween szhtaappellantand minister immigration citizenshipfirst respondentrefugee review tribunalsecond respondentjudge lindgren jdate 21 february 2007place sydneyreasons judgment1 appellant appeal decision federal magistrate court australia 2006 fmca 1388 delivered 7 september 2006 scarlett fm court dismissed application review decision second respondent refugee review tribunal tribunal filed submitting appearance appeal tribunal decision record signed 11 october 2005 handed 1 november 2005 tribunal affirmed decision delegate first respondent respectively delegate minister grant protection visa appellant delegate given decision 26 july 2005 2 appellant national people republic china arrived australia 29 may 2005 applied protection visa 24 june 2005 claim well founded fear persecution china ground religion 3 appellant claimed worked taxi driver tianjin china 1994 2005 left china lawfully 28 may 2005 chinese passport issued 2002 australian business visa issued beijing 11 may 2005 4 according protection visa application form accompanying document appellant never previously travelled outside china never convicted crime offence best knowledge subject criminal investigation pending criminal charge never deported removed country 5 entry passport indicated however appellant fact previously travelled outside china least one occasion travelled germany 31 march 2004 returned china 7 april 2004 6 appellant claim protection set undated unsigned statement accompanied application protection visa according statement appellant practitioner falun dafa tried conduct according principle truthfulness compassion forbearance according statement appellant went beijing end 2001 appeal justice falun dafa one listened went great wall practised falun gong exercise arrested later sentenced one year forced labour tianjin city forced labour camp 7 appellant claimed statement camp suffered kind inhuman torture claimed renounced faith february 2002 released april 2002 however said found abandonment faith hard accept returned falun dafa early 2003 hearing two cruel female police officer labour camp went workplace threatened arrest renounce falun dafa realised would face imprisonment father bribed high government official issue passport appellant appellant applied business visa come australia sought protection 8 seen according version event passport visa applied result visit two female police officer appellant place employment threat arrest apparently early 2003 however appellant passport fact issued early 2002 appellant apply business visa 8 april 2005 9 15 september 2005 tribunal wrote appellant pursuant tos 424aof themigration act 1958 cth act inviting comment potential adverse material set letter suffices note among matter put appellant letter comment fact contrary answer protection visa application form travelled outside china least returned china fact obtained passport prior alleged threat made two female police officer early 2003 apparently applied business visa 2005 10 letter invited appellant provide comment 10 october 2005 advised date tribunal might make decision case without notice respond 11 tribunal handed decision 1 november 2005 without inviting appellant attend hearing responded letter see 424c 2 425 2 c 425 3 act 12 reason decision tribunal simply accept appellant fear persecution tribunal inferred appellant return china visit germany voluntary well tribunal concluded appellant felt fearful period since obtaining passport september 2002 obtaining business visa travel australia april 2005 13 application review filed federal magistrate court 5 december 2005 appellant stated ground application review tribunal decision 1 order mr bruce maccarthy constitute refugee review tribunal hearing consideration matter 2 falun gong practitioner china 3 prosecuted chinese government falun gong member 14 federal magistrate scarlett fm noted appellant claim observed jurisdictional error tribunal decision therefore privative clause decision defined bys 474 2 act court dismissed application review ordered appellant pay minister cost fixed 2500 15 notice appeal court filed 26 september 2006 appellant stated ground appeal 1 falun gong practitioner china 2 prosecuted chinese government falun gong member 3 believe fear persecution well founded return china clearly ground simply reassert claim appellant made tribunal 16 hearing today asked appellant wished say anything support appeal said asked receive fair hearing also explained ground court allow appeal limited 17 reason shown doubt correctness reason scarlett fm appeal dismissed cost certify preceding seventeen 17 numbered paragraph true copy reason judgment herein honourable justice lindgren associate dated 9 march 2007counsel appellant appellant appeared personsolicitor respondent m quinn dla phillips foxdate hearing 21 february 2007date judgment 21 february 2007
Prime Constructions Pty Ltd v Westbridge Investments Pty Ltd [2004] NSWSC 861 (15 September 2004).txt	prime construction pty ltd v westbridge investment pty ltd 2004 nswsc 861 15 september 2004 last updated 20 september 2004new south wale supreme courtcitation prime construction pty ltd v westbridge investment pty ltd 2004 nswsc 861current jurisdiction equity divisionfile number 3671 04hearing date 3 15 september 2004judgment date 15 09 2004parties prime construction pty limited p westbridge investment pty limited judgment young cj eqlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel r davis p solicitor shaw mcdonald pty ltd p catchword deed 6 7 execution informal execution binding estoppel ratification even though executed party equity 389 specific performance awarded remedy efficacious act cited conveyancing act 1919 51acorporations act 2001 127decision declaration made verdict plaintiff 11 721 60 order defendant pay plaintiff cost proceeding cost allowed 15 september 2004 hearing judgment supreme courtof new south walesequity divisionyoung cj eqwednesday 15 september 20043671 04 prime construction pty ltd v westbridge investment pty ltdjudgment1his honour statement liquidated claim filed local court downing centre sydney 3 february 2003 plaintiff claimed 11 754 60 cost defendant good sold delivered claim disputed party represented solicitor mr park m lim plaintiff m williams defendant 2 21 january 2004 plaintiff solicitor made offer party settle matter amount claimed party pay cost deed release entered party 23 january 2004 defendant solicitor accepted matter principle m williams emailed m lim follows attach deed release matter please let comment would like prepare execution copy soon possible finally holding cheque favour client 11 721 60 3 mr park accepted deed drafted 9 february 2004 m williams emailed deed execution 4 12 february 2004 mr park emailed m williams dear kim term referred e mail acceptable please fax signed copy attend filing straight away also received signed deed client today position exchange deed settlement cheque please advise client ready inquire deed exchanged 13 february 10 10am m williams emailed back hi peteri informed le houlton westbridge deed release gone co director execution revert receive return deed meantime shall print term settlement sign forward 5 last dear peter dear kim e mail thereafter correspondence dear sir dear madam case may 6 first fax m williams sent 13 february effect instructed advise consideration client reconsidered position additional term proposed letter plaintiff proprietor quality work done 7 replied contention matter settled settlement occurred desultory correspondence solicitor m williams notified mr park 22 april 2004 firm ceased act defendant would thereafter acting 8 9 february 2004 deed form agreed solicitor executed following way document ended executed party deed signed sealed delivered byprime construction pty limitedin presence opposite attestation clause signature director mr holmes signature witnessed mr flint secretary company accounting administration manager called deed delivered mr park 12 february 2004 9 28 june 2004 plaintiff commenced present proceeding seeking specific performance alleged agreement settle local court proceeding matter came hearing 3 september today 10 series question need addressed 1 final settlement local court proceeding 2 effect document executed 9 february 2004 3 effect ratification document 15 september 2004 signing another copy deed 4 order made deal matter turn 11 1 often problem party made agreement settle proceeding agreement consummated formal documentation leading case ofmasters v cameron 1954 hca 72 1954 91 clr 353 360 make clear least three situation party reached final binding agreement propose term stated form fuller precise different effect ii party agreed made performance one term conditional upon execution formal document iii even reached final agreement variation always matter fact intention 12 view correspondence set fact term deed finally agreed upon term settlement finally agreed upon seems left pure mechanic case fall within first class inmasters v cameron thus satisfied final settlement proceeding 13 2 deed solemn act person perform respect property deed ancient origin execution deed solemn matter law prescribes way executed understood person executing solemn legal act performing bound deed 14 prime legislation governing execution deed corporation i 127of thecorporations act2001 ands 51aof theconveyancing act1919 section 51aenables company execute deed seal signature director secretary section 127 2 thecorporations actsays much sort thing however 127 1 make clear company bind deed le formal method however two director company must sign deed director company secretary must sign deed one director company director alone sign document must expressed deed 15 instant case document expressed deed one director signed compliance withs 127of thecorporations act seal compliance withsection 51aof theconveyancing act 16section 127 4 thecorporations actmakes clear section limit way company may execute document including deed particularly clear cover however would seem cover common law method executing deed method executing deed binding company prescribed company constitution 17 instant case favoured copy company constitution reliance common law method execution deed usually involves seal signature director secretary 18 however would seem thats 127 4 also cover situation virtue estoppel deed binding company mr davis appeared plaintiff defendant indicated would attend hearing relied decision mackenzie j supreme court queensland incarter v schmiererbc200300443 case honour asked make declaration unders 418aof thecorporations actthat charge valid must confess read case way mr davis would seem honour view circumstance document executed deed mortgagor company estopped denying end declared insofar asserted charge invalid executed accordance withs 127of thecorporations act appointment receiver manager pursuant charge valid thus great skill circumvented technical question 19 today seenicom interior pty ltd v circuit finance pty ltd 2004 nswsc 728 2004 50 acsr 25 pointed essential lawyer advising company executing deed careful ensure executed accordance withs 127 permissible method unfortunately present case somewhere along line know whose fault document executed 9 february failed comply standard execution technically speaking deed 20 document deed handed solicitor 12 february would operate delivery would mean soon deed hand solicitor binding plaintiff fact party executed deed excuse complying 21 accordingly release given deed defendant effect way plaintiff could escaped bound deed party executed within reasonable time deed delivered application equity seescook v premier building solution pty ltd 2003 wasca 263 2003 28 war 124 carew case 2 1855 engr 255 1855 7 de gm g 43 44 er 17andfederal commissioner taxation v taylor 1929 hca 13 1929 42 clr 80 22 even proper execution deed mr park represented m williams deed executed may well estoppel would operate plaintiff would estopped denying document deed defendant taken view deed would operation executed deed 23 accordingly basis known specific performance law executed contract 24 3 evidence 15 september morning meeting board director plaintiff ratified deed also executed new deed properly question effect 25 ordinarily ratification relates back time original act done exception done done within limited time seedibbins v dibbins 1896 2 ch 348 however line case seems apply time essence although may well argued reasonable time deed could signed proffered time essence act defendant precluded formal document proffered defendant never saw never realised deed properly executed 26 accordingly either estoppel indicated heading 2 ratification deed took effect date delivery 12 february 2004 consequence flow per para 2 reason 27 wrong evidence new deed delivered morning solicitor would show date hearing relevant time plaintiff ready willing able fulfil contract far remained performed part 28 4 next question order made executed contract ordinarily specific performance granted automatically unfair one party bound agreement intended mutual right 29 however present case granting specific performance creates problem solves assuming defendant maintains attitude anything decree specific performance would entered someone would apply motion 100 thesupreme court actfor deed executed registrar court name defendant fresh action would commenced local court debt specialty view amount involved would expensive exercise indeed 30 seems specifically enforceable agreement one make declaration defendant bound term document instance annexure mr drake affidavit 15 september 2004 including release contained therein merely give judgment plaintiff sum referred deed namely 11 721 60 sort order make 31 declare defendant bound term deed release annexed affidavit jdm drake sworn herein 15 september 2004 signed deed 32 find verdict plaintiff 11 721 60 order defendant pay plaintiff cost proceeding cost allowed 15 september 2004 hearing last updated 16 09 2004
Sidebottom and Secretary, Department of Social Services (Social services second review) [2019] AATA 4254 (3 October 2019).txt	sidebottom secretary department social service social service second review 2019 aata 4254 3 october 2019 last updated 22 october 2019sidebottom secretary department social service social service second review 2019 aata 4254 3 october 2019 division general divisionfile number 2018 7125re david sidebottomapplicantandsecretary department social servicesrespondentdecisiontribunal mr j c kelly senior memberdate 3 october 2019date written reason 18 october 2019place sydneyfor reason given orally conclusion hearing matter tribunal affirms decision social service child support division tribunal dated 6 november 2018 sgd mr j c kelly senior membercatchwordssocial security cancellation age pension refusal new claim age pension applicant exceeded income limit age pension proceeds sale principal residence deposited bank account deeming provision apply calculation income received deposit applicant receiving age pension immediately period absence australia indefinite portability applicable change circumstance since cancellation reviewable decision affirmedlegislationsocial security act 1991 cth s 8 8 1 8 2 9 23 2 23 4 44 55 1064 1076 1076 2 1076 3a 1081 1082 1083 1118 1118 1b 1213 1217social security administration act 1999 cth s 80 118casesdrake v minister immigration ethnic affair 2 1979 2 ald 634at 645secondary materialsa guide australian government paymentsguide social security law instruction 4 4 2 4 6 3 80 7 2 2 60reasons decisionmrs j c kelly senior member18 october 2019backgroundmr sidebottom began receiving age pension 14 january 2018 considering leaving australia permanently consulted department human service department website understood clearly state age pension indefinitely portable moving overseas grace period 12 month selling buying principal residence basis proceeded plan sold house moved uk 7 may 2018 subsequently purchased house mr sidebottom deposited net proceeds sale home bank account say telephoned centrelink 7 may 2018 advise leaving australia officer focused sale house took opportunity cancel age pension sale settled 6 april 2018 mr sidebottom age pension cancelled 7 may 2018 effect 6 april 2018 subsequent claim age pension made day rejected 25 june 2018 question decided whether cancellation mr sidebottom age pension rejection subsequent claim age pension correct preferable decision reviewable decision made 6 november 2018 social security child support division tribunal member made following key finding mr sidebottom deemed income together foreign pension payment uk netherlands resulted annual income excess cut rate age pension 6 april 2018 income exceeded allowable limit payment age pension receipt age pension immediately departure uk indefinite portability could apply regardless whether age pension suspended cancelled andhis financial circumstance relevantly changed time new claim age pension 7 may 2018 therefore correctly rejected regulatory schemethe relevant legislation contained thesocial security act 1991 cth act thesocial security administration act 1999 cth administration act government policy set guide social security law guide relevant applied absence cogent reason follow policy held indrake v minister immigration ethnic affair 2 1979 2 ald 634at 645 section 55 act provides rate age pension worked using pension rate calculator end section 1064 act module e rate calculator section 1064 set work effect person ordinary income person maximum payment rate policy document guide australian government payment set income test limit single person receive part pension state 20 march 30 june 2018 single person income needed le 51 563 20 per year receive part pension section 8 act set income test definition relevantly defines income amount earned derived received person person use benefit subsection 8 2 provides reference act income amount earned derived received reference income amount earned derived received mean income amount earned derived received source whether within outside australia division 1b part 3 10 act provides deeming income person financial asset section 9 act defines financial asset include financial investment defined include deposit money defined subsection 8 1 mean relation person person money deposited account financial institution subsection 1076 2 act provides person financial asset taken purpose act receive ordinary income asset accordance section section 1076 provides person financial asset added together deemed income calculated total amount deeming rate revised periodically accordance section 1081 1082 act tribunal emphasise deeming provision based legislation policy module rate calculator establishes overall rate calculation process rate payment calculated separately income asset test test result lower rate pension one applies section 1118 act provides certain asset disregarded calculating value person asset subsection 1118 1b provides net proceeds sale principal home exempt asset test period 12 month person intends use fund purchase another home intent make home principal home clearly case mr sidebottom however principal home sale proceeds held financial investment financial asset income test purpose set guide 4 6 3 80 4 4 2 effect method statement subsection 1076 3a act threshold rate applied first 50 200 single person threshold rate applied balance person financial asset mr sidebottom income exceeded 50 200 threshold section 1083 act provides return financial asset person actually earns derives receives taken purpose act ordinary income person actual income earned deposit mr sidebottom held bank account relevant calculation income rather deeming provision take effect legislative outcome section 44 act provides age pension payable person person age pension rate would nil section 80 administration act provides social security payment paid person qualified payment payable secretary determine payment cancelled suspended section 118 administration act provides adverse determination mr sidebottom circumstance take effect day event circumstance occurred 6 april 2018 subsection 23 2 4 act provide person taken receiving payment act earliest day latest day payment payable person cancellation decisionthe effect provision decision cancel mr sidebottom age pension take effect date change circumstance occurred settlement sale home 6 april 2018 taken receiving age pension 6 april 2018 although cancellation decision made 7 may 2018 took effect date change circumstance section 1213 applies portability social security payment provides portability immediately period absence commenced case 7 may 2018 person receiving specified social security payment virtue section 1217 act includes age pension however case cannot said mr sidebottom receiving age pension immediately period absence entitled pension 6 april 2018 cancellation decision effect date definition financial asset financial investment deposit money mean proceeds sale mr sidebottom home held bank account must assessed section 1076 referring legislative provision mean deposit held mr sidebottom account subject deeming rate actual income mr sidebottom earned deposit therefore mr sidebottom total income including deemed income 6 april 2018 excess allowable limit age pension therefore age pension reduced nil longer payable according section 44 act 7 may 2018 department issued letter advising mr sidebottom age pension cancelled effect 6 april 2018 decision correct reason given difference treatment whether mr sidebottom age pension cancelled suspended would take effect 6 april 2018 therefore mr sidebottom receiving age pension immediately period absence commenced 7 may 2018 tribunal note 7 2 2 60 guide relates post departure review relevant case 7 may 2018 claim age pensionwhen mr sidebottom made new claim age pension 7 may 2018 financial circumstance cancellation decision made took effect total assessable income exceeded allowable limit decision reject new claim age pension made 25 june 2018 correct mr sidebottom said made new claim international staff centrelink informed could apply uk social security agreement australia nothing lose lodging new claim described delay making decision made difference outcome depended financial circumstance day application changed since 6 april 2018 decisionfor reason reviewable decision must affirmed tribunal discretion reviewable decision affirmed ul none list style none certify preceding 23 twenty three paragraph true copy reason decision herein mr j c kelly senior member sgd associatedated 18 october 2019date hearing 3 october 2019applicant personsolicitors respondent mr l dennis department human service
Read & Chang and Anor [2010] FamCA 876 (9 June 2010).txt	read chang anor 2010 famca 876 9 june 2010 last updated 7 october 2010family court australiaread chang anor 2010 famca 876family law property trust subpoena calling production memorandum wish trust wife discretionary beneficiaryapplicant m readrespondent mr changobjecting party trustee mr settlementfile number syc1553of2009date delivered 9 june 2010place delivered sydneyplace heard sydneyjudgment cohen jhearing date 1 april 2010representationcounsel applicant mr schonellsolicitor applicant karras partner lawyerscounsel respondent mr kearneysolicitor respondent barkus doolan kellycounsel trustee mr settlementmr sirtes scsolicitors said trusteesbartier perryordersthe application trustee set aside paragraph 2 3 subpoena issued behalf husband proper officer z pty limited proper officer pty limited filed 23 november 2009 dismissed leave granted husband personally thorough legal advisor inspect document produced court answer subpoena referred order 1 filed served wife z pty limited pty limited written undertaking court proper form disclose content effect document produced answer subpoena referred order 1 person person legal adviser reasonably necessary conduct proceeding herein leave granted wife personally legal advisor inspect document produced court answer subpoena referred order 1 filed served husband z pty limited pty limited written undertaking court proper form disclose content effect document produced answer subpoena referred order 1 person person legal advisor reasonably necessary conduct proceeding herein cost reserved notedthat publication judgment pseudonymread chang anoris approved pursuant tos 121 9 g thefamily law act 1975 cth family court australia sydneyfile number syc 1553 2009ms readapplicantandmr changrespondentandtrustees mr settlementobjecting partyreasons judgmentthese proceeding decide issue informed counsel previously considered family law context dispute property wife one class beneficiary discretionary trust held 630 million 30 june 2006 increase 22 million financial year know trust worth probably significantly 630 million wife interest discretionary beneficiary cannot said vested best contingently vested may entitled share periodic distribution income capital still living final distribution trust asset trust wound latest 2031 50 year age currently 7 people might also termed vested discretionary interest meaning member existing class member discretion trustee may benefit trust term trust deed known husband wife wife far received 18 million distribution 2009 received 2 9 million well defined pattern increasing annual distribution wife many year husband wish able better appreciate therefore better inform court future likely hold wife respect discretionary distribution winding wife know however trustee admit holding document document provided instigator source capital trust mr read snr grandfather trustee guidance administration trust document known memorandum wish wish letter said binding trustee may influenced may future influence making distribution deciding part fund preserved winding trust shall demonstrate later least tendency lean toward view type expression wish extent binding trustee trustee acknowledge consider past admitted influenced argue bound husband issued subpoena one trustee inter alia seek production term memorandum wish memorandum preference letter wish like document signed mr read snr relating mr settlement memorandum wish memorandum preference letter wish like document signed mr mr relating mr settlement may document mr mr intended effect wish mr read snr mr mr friend mr read snr original settler trust provision small sum money institute trustee produced document applied set aside paragraph subpoena surprisingly husband defended application seek leave inspect relevant document heart dispute husband trustee trustee claim particular memorandum wish disclosed bind event confidential senior counsel trustee submitted subpoena relevant aspect constitutes fishing expedition cast net wide potential relevance memorandum wish could speculative argued decision state supreme court australia including decision inhartigan nominee pty ltd anor v rydge 1992 29 nsw lr 405on memorandum wish sir norman rydge court england followed argued much reason court refused permit trust beneficiary gain access memorandum wish family court thesis 79proceedings refuse access husband inwhite tulloch v white 1995 19 fam lr 696the family court considered similar issue regard bound decision issue remains whether bind proceeding brought decision attention counsel party hearing unfortunately little attention devoted argument white tulloch v whiteinvolved subpoena mother party tos 79proceedings produce document including mother prior will evidence financial standing mother objection production ground relevance judge first instance ordered production permitted inspection party issuing subpoena appeal full court found p 706 25 ultimate criterion whether evidence may relevant equitable process unders 79 end relevance must depend upon nature claim put forward fact particular case held current mother circumstance existed disclosed document shown sufficiently relevant coming conclusion considered dismiss inconsequential invasion privacy involved disclosure oppressiveness involved disclose document may ultimately marginal relevance understanding meaning ofwhite tulloch v whiteis document subject subpoena document expectancy must shown likely found relevant degree relevance marginal likely allow document become part evidence actually effect order made unders 79or full court quoted p 703 20 line authority commencing withwaind v hill 1978 1 nswlr 372 sufficiently likely add end relevant evidence case saying court seems recognised relevance invasion privacy insufficient warrant refusal force disclosure document insufficiently relevant insufficiently likely effect ultimate outcome proceeding invasion privacy inherent disclosure case inconvenience deprival working document regarded oppressive disclosure required cannot discern difference relevant purpose expectancy arising discretionary trust arising current valid living testator however one cannot overlook possible difference similarity discretionary trust supposedly non binding memorandum wish thing revoked will testator statement action testator might used prove whether testator demonstrated consistent testamentary intention therefore whether likely unlikely change current first issue come mind making comparison purpose memorandum wish term discretionary trust unrevoked will revoked will raised kirby p dissenting judgment inhartigan nomineees v rydge honour approach elevate memorandum wish dealing much force effect trust deed held trust document member class beneficiary entitled access regarded memorandum supplementary trust deed held person entitled court supervise action trustee impose limit seems previously imposed supervision court person seeking must evidence breach trust obligation trustee gain access evidence might tend prove breach approach assumes memorandum extent binding trustee give member class discretionary beneficiary right action trustee failure abide reaching conclusion kirby p referred unchallenged finding judge first instance trustee disclosed exercising discretion trust taken memorandum wish account view wish letter relevant aspect quite dissimilar revoked living testator identical valid deceased testator memorandum wish document give wife right ensure trustee exercise discretion accordance relevantly similar trust deed similar relevant way unrevoked deceased testator would relevant proceeding one would expect discern disclosed whether trustee likely continue make distribution wife final distribution whether likely fund available distribution winding whether pas wife conservative member court appeal inhartigan mahoney ja sheller ja little doubt circumstance considering issue applicant right access memorandum wish confidential nevertheless accepted certain circumstance phrase countervailing circumstance used sheller ja would call disclosure sheller ja went say p 447 circumstance may spring nature document example document title trust overriding public interest concluded instance public interest favour revelation override confidentiality wish mr read snr reposed trustee mr mr mahoney ja dealt disclosure despite intention confidentiality inherent existence memorandum wish saying p 436 deciding question disclosure important opinion regard essential nature discretionary trust trust commercial document public may interest private transaction disposition settlor property ordinarily voluntarily manner entitled choose special case apart proper wish privacy respected underlining mine emphasise honour recognition exception maintenance confidentiality nevertheless mahoney ja view appears high point support trustee submission husband know wish letter cannot show sufficiently relevant overcome maintenance confidential character honour stated view relevant law word beneficiary may alleging merely document contains settlor wish seek discovery ascertain whether document contains wish taken account beneficiary may support case discovery may use process ascertain whether case exists help wife honour asserts subpoena used discover written statement wish shown relevant actual content disclosed honour implication found confidentiality absolute even absence evidence breach trust one must appreciate thats 79proceedings character different state supreme court proceeding applicant inhartiganwas seeking see wish letter could course litigation trustee failure duty determine whether trustee exercised discretion accordance wish expressed letter trustee informed regard letter deciding stance trustee entitled rely letter trust document bind manner referring relying claimed beach duty exercise discretion independently thus applicant prove case balance suffer dismissal in 79proceedings although onus party prove thes 75 2 factor party relies court simply left dismiss party case unproven whole part court continues ofs 79 4 e duty take matter listed ins75 2 account far relevant as 79 4 say court shall take account pursuant tos 79 2 shall make order section unless satisfied circumstance equitable make order thus must court duty go beyond case presented adversarial party reach decision proper exercise discretion circumstance party obliged disclose financial circumstance wife well husband really duty seek prove likely receive trust future whereas trustee party supreme court entitled argue issue relevance family court party circumstance party e husband wife could avoid fact likely distribution wife trust issue evidence might reasonably tend establish must regarded relevant case exists basis seeing memorandum wish influenced trustee past likely show degree done likely assist court ascertain whether likely future likely likelihood wife receive distribution income capital probably receive case ascertaining whether case exists case one party husband wife able use support case even allow court find trustee likely follow degree influenced likely support wife case possibility receipt distribution uncertain given le weight sheller ja also found confidentiality absolute consider issue overriding confidentiality angle ability prove relevance without knowing content memorandum wish therefore difficulty demonstrating relevance result lack knowledge recently mr justice briggs england wale high court chancery division inbreakspear or v ackland anor decision reported traditional report found 2008 ewhc 220 ch comprehensively considered law england issue disclosure wish letter context discretionary trust honour analysed judgment inhartigan made number point seem important reaching decision must make significantly pointed member court appeal inhartigandetermined order would make different basis judge said mahoney ja simply held applicant claim disclosure could succeed proprietary right document therefore disclosure proper administration discretionary property trust involves confidence confidentiality reposed instigator trust without maintained purpose trust could defeated held applicant property document sheller ja said relied onrelondonderry settlement 1965 ch 918 agree trustee need preserve confidentiality manner made discretionary decision disposition trust property briggs j expressed doubt wish letter document enveloped principle honour quoted p 445 sheller ja judgment quoted extract critical determining relevant effect decision inhartiganon matter must determine quoted part underlining emphasis respect conclusion londonderry settlement think material upon reason might based cannot generally withheld unless reveals reason reasoning process jacob law tort australia 5thed 1986 par 1716 393 referring londonderry settlement case learned author say nevertheless case clear authority beneficiary right see document private trustee may evidence reason trustee made decision statement opinion accurately describes nature document access beneficiary denied class appellant seek press sir norman rydge memorandum contrast observed could debate trustee bound disclose deed trust trust account harman lj acknowledged at932 counsel advice ante litem motam trustee right duty document doubt referred trustee time time come exercise discretionary power thought influence trustee indeed may decisive reveal motif reason process reasoning opinion decisive distinction moreover think class document beneficiary denied access extended beyond non disclosure necessary preserve trustee right disclose reason exercising discretionary power reasoning process memorandum settlor indicates preference wish trustee obviously fall within general category document english court appeal said need disclosed nature trust imposes trustee duty exercise discretion think sir norman rydge memorandum evidence reason trustee made decision deed stand contrast minute agenda paper trustee meeting communication thus sheller ja held distinction disclosure private document trustee actually disclose reason exercising discretion document might influence trustee reveal motif reason process reasoning even though document may decisive influence administration trust briggs j summarised reason sheller ja refusal order disclosure paragraph 28 judgment said 28 nevertheless sheller ja refused disclosure simple ground sir norman rydge implication imposed trustee obligation keep memorandum wish confidential beneficiary trustee boundin absence sufficient countervailing circumstance see page 446g 447b great respect briggs j correct analysis relevant sheller ja reason situation consider recognise instance disclosure memorandum wish intended confidential beneficiary sought circumstance determine whether disclosed highlighted underlining regard pivotal successful reliance trustee confidentiality briggs j analysis dissenting reason inhartiganby president court appeal stated economically paragraph 30 31 briggs j judgement reproduced 30 therefore kirby p reasoning preferred wholly discard londonderry together case asre beloved wilkes charitywhich preceded underpinned view case product outdated benevolent paternalism whereas australian society accepts generally greater level accountability accepted law england view access limited document proprietary right may established right may besufficient notnecessaryto right access court enforce uphold cestui que trust entitlement reasonable assurance manifest integrity administration trust trustee 31 kirby p prepared acknowledge express imposition settlor obligation confidence relation wish letter might prevail finally view trustee state taken account wish letter making decision thereby put reasoning sufficiently play principle might otherwise entitled resist disclosure applied inclined agree justice kirby comment benevolent paternalism importantly follows issue disclosure confidential wish letter held trustee kirby p sheller ja clearly recognise circumstance determine whether disclosure mahoney ja also accepts must situation although sheller ja refused disclosure circumstance different briggs j concluded follow basis mahoney ja refused disclosure ie proprietary right kirby p would allowed see paragraph 52 57 inclusive ofbreakspear or ackland anor honour decided instance uphold confidentiality decision based fact individual case analysis part assistance mr justice briggs ultimately held bound byre londonderry settlement principle held remain law england paragraph 54 55 56 58 judgement said 54 heart londonderry principle unanimous conclusion clearly expressed danckwerts lj interest beneficiary family discretionary trust advantageous due administration trust exercise trustee dispositive discretionary power regarded start finish essentially confidential process interest beneficiary enables trustee make discreet thorough enquiry competing claim consideration benefit without fear risk inquires come beneficiary knowledge may include example inquiry existence life threatening illness appropriate beneficiary question kept ignorant confidentiality serf due administration family trust tends reduce scope litigation rationality exercise trustee discretion likely encourage suitable trustee accept office undeterred perception discretionary deliberation subject scrutiny disappointed hostile beneficiary potentially expensive litigation court 55 recognise force contrary proposition best enunciated editor underhill conferral general confidentiality upon exercise trustee discretionary power may particular case reduce practical extent held account trustee undoubtedly accountable exercise power seems quite wrong suppose court mindless existence core principle accountability period 150 year law better confidentiality afforded kirby p sympathise view may right recognising society generally principle fiduciary accountability gained ground recent year seems better described process whereby strict principle whereby trustee always accountable spread area society concept fiduciary obligation hold property exercise power authority behalf others affair come generally recognised 56 see persuasive basis thinking reasoning led english court think appropriate interest beneficiary administration trust confer confidentiality exercise family trustee discretionary power ceased hold good obvious potentially disastrous consequence resort civil litigation administration family trust property term expenditure time cost much le potential evil 19thcentury le need today always avoid deterring suitable family trustee accepting arduous unpaid office course risk conferral confidentiality may enable unworthy trustee use shield concealment culpable inadequacy risk cannot ignored 19thcentury recognised thatthe general principal confidentiality subject overridden matter discretion court may fairly supposed risk anything become rather le manageable 58 turn therefore question whether way londonderry principle applies wish letter contexti content limit wish letter arising context family discretionary trust rather employee trust pension trust business trust leaving another occasion manner londonderry principle applicable defining characteristic wish letter contains material settlor desire trustee take account exercising usually dispositive discretionary power therefore brought existence sole purpose serving facilitating inherently confidential process seems axiomatic document brought existence sole predominant purpose used furtherance inherently confidential process properly regarded confidential substantially extent effect process intended serve underlined reference exception limitation confidentiality honour accepted one driven comment case mr settlement many substantial trust day family member often trustee business specialising administration trust charge trouble usually family trustee employ firm advisor administrator work involved administration need avoid discouraging trustee acting largely evaporated sentiment expressed last sentence extract honour judgment earlier emphasised particularly apposite divorce proceeding paragraph 51 said evaluation beneficiary prospect arises divorce proceeding party seems aspect court power require disclosure purpose resolving issue litigation special case instance beneficiary future prospect may relevant issue respect party litigation special case exists proceeding determining conclude real distinction obligation underwhite tulloch v whiteand general law disclosure wish letter although trustee primarily regard duty withhold disclosure confidential memorandum wish hold specific memorandum inferentially regarded trustee court confidential trustee court ought determine whether countervailing circumstance including likely relevance wish person whose request trust created warrant disclosure distinction decided case one distinction far referred person seeking disclosure beneficiary expectant beneficiary point view creator trust trustee stranger effect disclosure husband must disclosure wife fairness property proceeding would permit husband know express wish mr read snr without wife also knowing regard distinction apparent real account distinction type nature proceeding critical dealing family law proceeding property settlement trustee trust relatively unaffected compared proceeding trustee defendant satisfied principle established inwhite tulloch v whiteapplies wish letter shall apply principle knowing right confidentiality qualified one regard wife future financial prospect matter great importance thes 79proceedings party trustee already conceded influenced wish mr read snr one able tell balance memorandum wish whether pattern established distribution wife accord wish degree memorandum likely point wife future whether certain pattern lack pattern conformity distribution wife wish therefore whether pattern likely continue relatively predictable result issue relevance proceeding partly determined ascertained future reading wish letter admissibility wish letter part important part also determined amount money involved trust one cannot overlook range future possibility distribution wife could nothing insignificant amount extremely large sum theory could get nothing thes 79proceedings decided could get 600 million immediately thes 79judgement delivered essential justice court much information given wife future prospect trust wide variance possibility created exceptional fund available trustee argument memorandum wish bind trustee relevance must rejected although wife may contingent entitlement member class beneficiary memorandum wish sufficient likelihood enlighten court future economic circumstance highly relevant central issue in 79proceedings wish letter provide necessary information relevant whatever information might reasonably reaching conclusion suggesting trustee disclose reason thinking administering trust court likely disclosure memorandum wish better position predict trustee likely future conceded inhartiganthat influenced shall set aside paragraph 2 3 subpoena shall grant leave husband wife directly lawyer inspect document produced provided provide court trustee written undertaking court appropriate form disclose content document person except leave court order court application trustee set aside paragraph 2 3 subpoena issued behalf husband proper officer z pty limited proper officer pty limited filed 23 november 2009 dismissed leave granted husband personally thorough legal advisor inspect document produced court answer subpoena referred order 1 filed served wife z pty limited pty limited written undertaking court proper form disclose content effect document produced answer subpoena referred order 1 person person legal adviser reasonably necessary conduct proceeding herein leave granted wife personally legal advisor inspect document produced court answer subpoena referred order 1 filed served husband z pty limited pty limited written undertaking court proper form disclose content effect document produced answer subpoena referred order 1 person person legal advisor reasonably necessary conduct proceeding herein cost reserved certify preceding thirty four 34 paragraph true copy reason judgment honourable justice cohen associate date 9 june 2010
Poonan, Parwati [2004] MRTA 2641 (23 April 2004).txt	poonan parwati 2004 mrta 2641 23 april 2004 last updated 5 june 2004 2004 mrta 2641catchwords review visa refusal subclass 105 106 usual occupation carpentervisa applicant pachappa gounderganga watiparmeshwar gounderswarthi gounderreview applicant parwati poonantribunal migration review tribunalpresiding member linda pearsonmrt file number n00 06605dimia file number f98 155752date decision 23 april 2004at sydneydecision tribunal affirms decision review finding visa applicant entitled grant skilled australian linked migrant class aj visa statement decision reasonsapplication review1 mr pachappa gounder primary visa applicant national fiji born 7 august 1961 applied spouse m ganga wati born 11 march 1970 two child parmeshwar gounder born 12 february 1991 swarthi gounder born 26 august 1988 skilled australian linked migrant class aj visa 16 july 1998 delegate minister immigration multicultural affair delegate decided refuse grant visa 12 september 2000 jurisdiction standing2 m parwati poonan review applicant sister sponsor primary visa applicant lodged application review tribunal 6 december 2000 decision reviewable tribunal application review properly made combined lodgement person standing apply review legislation policy3 themigration act 1958 act various regulation made act principally themigration regulation 1994 regulation provide different class visa criterion grant visa reaching decision tribunal bound act various regulation written direction issued minister section 499 act matter may subject policy found publication theprocedures advice manual 3 pam3 themigration series instruction msis produced department immigration multicultural indigenous affair dimia department tribunal required regard policy apply unless cogent reason departing policy 4 tribunal power affirm vary set aside decision refuse grant visa also power remit application visa remittal may accompanied direction visa applicant meet one criterion visa matter minister delegate consider remaining criterion review tribunal generally limited consideration whether visa applicant meet one essential criterion application remitted decision affirmed basis 5 criterion policy immediately relevant review legislation migration act 1958sections 92 96 350migration regulation 1994 regs 1 15b 1 19 2 26 2 27part 105of schedule 2 regulationsschedule 6 general point test qualification pointspolicy procedure advice manual 3 schedule 2 skilled australian linked visa 105schedule 6 general point test qualification points6 1 july 1999 new class skilled visa introduced skilled australian sponsored migrant class bq visa application skilled australian linked migrant class aj visa finally determined 1 july 1999 affected change 7 1 july 1999regulation 2 08dwas amended allow applicant assessed delegate 1 july 1999 placed pool refused lodge application class bn class bq visa likely application would approved minister may invite applicant make application either class visa item 1128b 1128c schedule 1 themigration regulation 1994 provide application free charge 8 criterion subclass 105 subclass 106 visa largely set inparts 105and106of schedule 2 themigration regulation criterion visa generally separated primary secondary criterion least one member family unit must meet primary criterion might include criterion requires certain relationship sponsor member family unit need meet secondary criterion 9 clause 105 222 ofpart 105of schedule 2 themigration regulationsrequires applicant must qualifying score assessed subdivision b division 3 ofpart 2of themigration act section 92 96 part act set point system applicant particular kind visa may given score based point particular attribute compared pool pas mark gazetted time time prescribed attribute qualification point set themigration regulation seeregulation 2 26and schedule 6 7 qualification set schedule 6 employment qualification 0 80 pointsage qualification 0 30 pointslanguage skill qualification 0 20 pointsrelationship qualification 5 15 pointscitizenship qualification 0 10 pointssettlement sponsor qualification 0 10 pointslocation sponsor qualification 0 5 points10 applicant score equal pas mark applicant received qualifying score le pas mark greater equal pool mark application remains pool 24 month waiting lower pas mark 11 section 350of themigration actrequires tribunal relation point assessment must consider regulation pool pas mark force time delegate assessment primary assessment force time assessment tribunal decision apply whichever favourable applicant wording different qualification schedule 6 themigration regulationssets date period certain fact circumstance need established example age qualification determined primary applicant age date visa application 12 area greatest contention point system employment qualification step involved determining point awarded employment qualification summarised 13 tribunal must determine usual occupation occupation visa applicant determination visa applicant usual occupation finding fact made regard whole material tribunal seewang v mima fed c wilcox j 30 january 1998 andmima v ye hu 1997 47 ald 513 14 inmima v ye hu full federal court found department delegate erred interpreting definition usual occupation requiring attention focused exclusively task performed applicant one particular period employment instead definition requires decision maker take account merely task visa applicant training qualification work experience determine composite duty training experience would described australia also necessary consider period person worked occupation 3 year prior visa application relevant number point could awarded employment qualification 15 usual occupation defined inregulation 2 26as mean occupation applicant engaged gain reward continuous period least 6 month period 2 year immediately preceding relevant application visa 16 practice tribunal generally follows government policy relying evidence task duty undertaken person equating occupation definition theaustralian standard classification occupations1997 second edition australian bureau statistic canberra asco however tribunal bound classification contained asco 17 occupation explicitly recognised bygazettenotices regulation priority occupation professional equivalent occupation technical equivalent occupation entry requirement skill level occupation occupation australia determined tribunal tribunal generally follows government policy using theprocedures advice manual 3 pam 3 asco guide entry requirement skill level occupation australia 18 depending entry requirement skill level qualification experience person assessed relevant australian authority determine qualification experience person meet australian standard occupation either 3 year prior lodgement visa application date assessment whether qualification experience updated australian standard way training lasting 6 month regulation 2 26of themigration regulationsdefines relevant australian authority follows relevant australian authority mean noosr body authorised writing noosr ass educational qualification work experience b department employment workplace relation small business c circumstance case preclude authority referred paragraph b making assessment minister 19 noosr national office overseas skill recognition part department education training youth affair 20 tribunal award point accordance withregulation 2 26andpart 1of schedule 6 regulation based assessment visa applicant skill qualification tribunal may need determine whether qualification experience meet australian occupational licensing registration requirement 21 point awarded remainder qualification contained schedule 6 regulation accordance withregulation 2 26 evidence findings22 finding tribunal based material contained tribunal file n00 06605 department file f98 155752 23 basis refusal visa matter primary visa applicant achieve sufficient score point system relation subclass 105 visa delegate also found spouse unable assist primary visa applicant achieving pool pas mark therefore crucial issue application number point awarded primary visa applicant spouse various factor point test contained schedule 6 regulation 24 pool mark 110 point pas mark 115 point time primary assessment 12 september 2000 remain relevant pool pas mark time tribunal decision 25 application migration primary visa applicant stated usual occupation farmer part time carpenter stated usual occupation primary visa applicant spouse spouse domestic duty 26 department determined primary visa applicant usual occupation carpenter second edition asco code 4411 13 delegate referred primary visa applicant trade recognition australia tra department employment workplace relation small business dewrsb assessment qualification experience 31 january 2000 tra conditionally classified primary visa applicant carpenter however 19 april 2000 considering additional supporting evidence provided primary visa applicant decision revoked tra stated primary visa applicant eligible classification tradesperson insufficient training experience 19 july 2000 tra upheld decision primary visa applicant eligible classification tradesperson 27 basis information delegate found primary visa applicant failed meet australian standard usual occupation therefore determined entitled 25 point employment factor accordance item 6107 ofpart 1of schedule 6 regulation 28 department determined spouse usual occupation migration purpose therefore determined eligible point employment factor point test delegate allocate point spouse age language factor however decision record noted spouse able assist primary visa applicant achieving pool pas mark 29 number point awarded primary visa applicant time primary assessment follows employment 25 pointsage 20 pointslanguage 00 pointsrelationship 10 pointscitizenship 10 pointssettlement 10 pointslocation 00 pointsbonus 00 pointstotal point 75 points30 primary visa applicant attained pool entry mark 110 point pas mark 115 point application skilled australian linked migrant class aj visa refused delegate 12 september 2000 31 6 december 2000 review applicant lodged application tribunal review department decision 19 january 2001 tribunal received submission review applicant representative representative stated effect primary visa applicant could meet australian standard occupation carpenter representative requested practical interview held also stated matter could referred tafe proper assessment 32 letter dated 15 april 2003 review applicant representative provided summary primary visa applicant work history submission concerning processing application representative provided supporting document including correspondence tra 33 hearing held 7 may 2003 review applicant attended represented registered migration agent tribunal assisted interpreter 34 tribunal attempted contact primary visa applicant telephone discus employment experience requested available primary visa applicant available letter dated 12 may 2003 tribunal requested primary visa applicant provide detailed written statement work experience 16 july 1995 16 july 1998 explain application migration stated usual occupation farmer part time carpenter review applicant requested additional time provide information 19 june 2003 tribunal received statutory declaration made primary visa applicant review applicant mr karna waddi raju copy statement gdr construction ltd dr construction 35 26 june 2003 tribunal advised review applicant basis document provided tribunal provisionally determined usual occupation primary visa applicant carpenter asco code 4411 13 basis assessment tra 19 july 2000 primary visa applicant could awarded 25 point employment qualification schedule 6 tribunal advised prepared allow primary visa applicant undertake assessment tra noted assessment undertaken primary visa applicant found meet australian standard issue length experience occupation would need considered 36 3 july 2003 review applicant representative advised primary visa applicant wished assessment tra review applicant representative provided completed application assessment supporting documentation tribunal 5 november 2003 tribunal forwarded tra 37 17 november 2003 tra advised primary visa applicant suitable skill occupation skilled occupation list assessed tra 26 november 2003 tribunal sent copy tra assessment review applicant requested advice whether wished tribunal make decision information seek review decision tra 22 december 2003 review applicant representative provided copy letter dated 17 december 2003 tra 29 january 2004 tribunal sent letter review applicant requesting advice whether wished pursue review decision tra evidence application review lodged 9 february 2004 representative provided copy email correspondence tra tribunal contacted tra advised 13 february 2004 matter finalised 38 17 february 2004 tribunal sent letter review applicant inviting comment information tra finalised application assessment primary visa applicant information application migration spouse primary visa applicant stated engaged domestic duty representative provided copy email correspondence tra 12 march 2004 19 march 2004 tra advised representative tribunal prepared alter outcome past assessment tribunal advised review applicant 23 march 2004 proceeding finalise review 39 tribunal advised review applicant decision would handed 16 april 2004 review applicant representative contacted tribunal email forwarded copy email correspondence tra representative stated contacted tra tra decided favourably would request tra contact tribunal tribunal rescheduled handing 23 april 2004 requested confirmation correspondence forwarded could considered 19 april 2004 tra advised tribunal tra formally informally considered case based evidence file prepared recognise primary visa applicant claim 40 tribunal consider point awarded factor primary visa applicant spouse legislation applied time primary assessment time tribunal decision reassessment primary visa applicant total point score time primary assessmentpart 1 employment qualification41 tribunal first task determine usual occupation occupation primary visa applicant 42 primary visa applicant lodged visa application 16 july 1998 usual occupation occupation engaged continuously gain reward least 6 month 16 july 1996 least date application visa 43 application migration form 47 primary visa applicant stated usual occupation farmer part time carpenter question 34 form 47 described main task duty performed usual occupation follows harvesting sugar cane season come ploughing land weeding farm cane topping 44 statutory declaration dated 5 june 2003 primary visa applicant explained worked family farm season work carpenter dr construction father sold farm 15 year earlier since time worked full time gdr construction sister completed form behalf entered occupation remembered time left australia 1989 primary visa applicant stated employed follows 01 91 till gdr construction full time 03 87 12 90 dr construction part full time 12 86 02 87 dr construction apprenticeship part time 45 primary visa applicant provided department letter managing director gdr construction fiji dated 26 june 1998 stating author known primary visa applicant past five year period worked carpenter stated primary visa applicant involved building industry leading hand charge work primary visa applicant since provided tribunal tra support application assessment statement gdr construction ltd letterhead included statement dated 28 march 2000 stating primary visa applicant employed company since 26 january 1991 carpenter fiji carpentry includes general work building house except electrical plumbing work statement dated january 2002 state primary visa applicant predominantly carpenter spends least 70 time wood 46 visa applicant provided statement dated 6 december 2001 managing director dr construction state primary visa applicant apprentice 28 december 1986 25 february 1987 employed full time carpenter 2 march 1987 21 december 1990 47 support application tra assessment made 6 november 2003 primary visa applicant provided statutory declaration dated 3 october 2003 outlined background career carpenter provided detail work experience carpenter 48 primary visa applicant provided detail educational background form 47 however letter received department 8 october 1999 primary visa applicant advises sit fiji junior certificate left school sitting exam evidence tribunal primary visa applicant hold vocational trade qualification 49 clear description primary visa applicant duty provided various statement dr construction gdr construction ltd primary visa applicant engaged task would australia performed carpenter building trade statement january 2002 gdr construction ltd state primary visa applicant predominantly carpenter spents least 70 time wood considering whether primary visa applicant usual occupation carpenter tribunal must satisfied opportunity regularly competently perform duty carpenter suitable level depth complexity pam 3 provides following guidance relation matter generally order satisfy applicant show involvement duty associated occupation major primary activity may demonstrated evidence spend least half normal full time load engaged professional duty rather study activity normal full time load occupation depend nature occupation reflect industry standard part time employment ongoing regular employment opposed employment casual irregular basis 50 based documentary evidence provided tribunal agrees delegate appropriate description primary visa applicant usual occupation date application carpenter asco code 4411 13 51 occupation carpenter appears asco unit group 4411 asco code 4411 13 according asco carpenter construct erects installs renovates repair structure fixture wood plywood wallboard material skill level required occupation aqf certificate iii higher qualification rate equivalent qualification trade certificate task performed carpenter include study drawing specification determine material required dimension installation procedure order selects timber material prepares layout cut material hand power tool assembles nail cut shaped part erects framework lay sub flooring verifies trueness structure assembles ceiling joist rafter construct roof framing nail pre fabricated roof truss place nail fascia panel sheathes roof fit exterior wall cladding enclose structure cut nail frame around window door hang door installs prefabricated unit structure nail floor board sub floor may install door handle lock hardware flooring underlay suspended ceiling insulating material fixture may examine remove part existing structure minor preparatory work install building support may erect scaffolding steel studding 52 entry level qualification primary visa applicant usual occupation trade certificate maximum number point could score employment factor point test 70 point accordance item 6102 ofpart 1of schedule 6 regulation 53 item 6102 state follows 6102 70the applicant usual occupation priority occupation b occupation australia degree trade certificate required ii professional equivalent occupation c occupation respect least 3 year relevant application made applicant obtained degree trade certificate diploma associate diploma post trade qualification assessed relevant australian authority equivalent australian standard occupation ii completed work experience assessed relevant australian authority equivalent australian standard occupation iii completed combination academic professional study trade training work experience together assessed relevant australian authority equivalent australian standard occupation occupation respect applicant qualification experience required purpose holding australian occupational licence registration e occupation applicant employed day 3 year day relevant application made f occupation applicant worked ii closely related occupation applicant worked period 2 year period total 2 year period 3 year ending day day relevant application made 54 procedure advice manual 3 pam3 state department employment workplace relation small business dewrsb trade recognition australia tra part relevant australian authority ass occupation carpenter asco code 4411 13 55 primary visa applicant qualification experience assessed tra noted primary visa applicant initially conditionally classified tra 31 january 2000 carpenter conditional classification revoked 19 april 2000 receipt evidence assessment 19 april 2000 tra identified concern statement provided gdr construction ltd appears review primary visa applicant provided personal statement new statement gdr construction ltd 19 july 2000 tra upheld initial decision primary visa applicant eligible classification tradesperson insufficient time training experience new application assessment tra made 6 november 2003 included additional documentation detailed submission review applicant representative addressing concern expressed tra decision 19 april 2000 17 november 2003 tra advised primary visa applicant failed substantiate required period acceptable trade training employment trade level level complexity practical experience would qualify recognition work classification currently assessed tra 56 primary visa applicant qualification work experience combination qualification work experience assessed relevant australian authority equivalent australian standard usual occupation primary visa applicant meet item 6102 6103 item 6107 state 6107 25the applicant applies enter australia basis occupation applicant usual occupation occupation entry australia requires certificate advanced certificate ii person educational qualification equivalent completion 4 5 6 year secondary education australia iii person certificate advanced certificate meet australian standard occupation work experience assessed relevant australian authority equivalent post secondary qualification kind b occupation applicant usual occupation ii entry australia requires degree diploma associate diploma trade certificate iii respect applicant degree diploma associate diploma trade certificate posse work experience assessed relevant australian authority equivalent australian standard occupation57 primary visa applicant meet item 6107 b awarded 25 point employment factor 58 examined evidence relation point awarded primary visa applicant remaining factor point test tribunal make following finding part 2 age qualification59 primary visa applicant born 7 august 1961 36 year old time application according item 6203 entitled 20 point factor part 3 language skill qualification60 visa application form primary visa applicant indicated limited english language ability stated main language hindi stated fluent language noted earlier primary visa applicant record detail educational background thus information language instruction primary junior secondary education 61 primary visa applicant undertaken ielts test however given point awarded employment factor even sat ielts test achieved result would enable awarded maximum 20 point language factor could meet pool pas mark accordingly tribunal invite primary visa applicant sit ielts test 62 primary visa applicant meet item ofpart 3of schedule 6 regulation entitled point factor part 4 relationship qualification63 primary visa applicant produced evidence form birth certificate substantiate claim sponsor sister tribunal accepts evidence tribunal find accordance item 6402 primary visa applicant entitled 10 point factor part 5 citizenship qualification64 sponsor provided evidence became australian citizen 23 january 1992 appears department file immigration received sponsorship visa application 16 july 1998 primary visa applicant entitled 10 point factor accordance item 6501 sponsor australian citizen le 5 year time immigration received sponsorship part 6 settlement sponsor qualification65 primary visa applicant entitled 10 point factor accordance item 6601 sponsor resident australia throughout period 2 year immigration received sponsorship time immigration received sponsorship receiving benefit student youth assistance act 1973 form australian social security benefit allowance pension sponsor financially independent engaged paid employment receiving pension received period period amounting 4 week period 2 year job search allowance newstart allowance special benefit thesocial security act 1991 part 7 location sponsor qualification66 sponsorship application sponsor stated resided rooty hill nsw 2766 67 order awarded 5 point factor sponsor must resided throughout period two year immigration receives sponsorship one area specified gazette notice designated area 68 time primary assessment postcode 2766 appear designated area gazette notice force time 601 21december 1998 thus primary visa applicant entitled point factor sponsor lived designated area throughout period 2 year immediately immigration received sponsorship bonus points69 time primary assessment paragraph 2 26 3 provided award additional 5 point total number point otherwise obtained applicant applicant hold award australian degree higher degree diploma trade certificate obtained period least 1 year full time study australia award evidence tribunal suggestion primary visa applicant studied australia 70 number point awarded visa applicant time primary assessment follows employment qualification 25 pointsage qualification 20 pointslanguage skill qualification 00 pointsrelationship qualification 10 pointscitizenship qualification 10 pointssettlement sponsor qualification 10 pointslocation sponsor qualification 00 pointsbonus 00 pointstotal 75 points71 time primary assessment pas mark 115 point pool mark 110 point total 75 point therefore sufficient achieve qualifying score pas point test assessment primary visa applicant total point score time tribunal decision72 primary visa applicant entitled assessed point legislation time tribunal decision however change schedule 6 regulation since date primary assessment thus point allocated time tribunal decision remain allocated time primary assessment 73 term point awarded location sponsor qualification tribunal note rooty hill nsw postcode 2766 also included current designated area gazette notice gn34 29 august 2001 thus point awarded factor time tribunal decision 74 time tribunal decision pas mark 115 point pool mark 110 point total 75 point therefore sufficient achieve qualifying score pas point test combination score primary visa applicant spouse75 regulation 2 27 allows combination score obtained primary visa applicant spouse score combined primary visa applicant obtain pas pool mark point test noted primary visa applicant achieve pas pool mark assessed time primary assessment time tribunal decision mean able use spouse point score attempt achieve pas pool mark 76 point spouse receives schedule 6 regulation employment age language combined point primary visa applicant receives relationship citizenship settlement sponsor location sponsor primary visa applicant taken achieved pas pool mark combined score equal mark 77 tribunal consider whether spouse primary visa applicant spouse entitled point employment age language primary visa applicant reassessment point score spouse primary visa applicant time primary assessmentpart 1 employment qualification78 tribunal first task determine usual occupation occupation spouse 79 spouse lodged combined application visa primary visa applicant 16 july 1998 usual occupation spouse occupation engaged continuously gain reward least 6 month 16 july 1996 date application 80 application migration form 47 spouse stated usual occupation domestic duty provided information regarding educational background employment history 81 basis information spouse usual occupation term defined regulation 2 26 set thus spouse meet item ofpart 1of schedule 6 regulation entitled point employment factor part 2 age qualification82 spouse born 11 march 1970 28 year old time application according item 6201 spouse entitled 30 point factor part 3 language skill qualification83 visa application form spouse indicated limited english language ability stated main language hindi stated fluent language noted earlier spouse record detail educational background thus information language instruction education 84 primary visa applicant spouse sat ielts test even sit ielts test achieve result would enable awarded maximum 20 point given point awarded underpart 1and3of schedule 6 primary visa applicant could achieve pool pas mark applying regulation 2 27 accordingly tribunal invite spouse sit ielts test 85 basis information spouse meet item ofpart 3of schedule 6 regulation entitled point factor bonus points86 time primary assessment paragraph 2 26 3 provided award additional 5 point total number point otherwise obtained applicant applicant hold award australian degree higher degree diploma trade certificate obtained period least 1 year full time study australia award evidence tribunal suggestion spouse studied australia 87 number point awarded spouse primary visa applicant time primary assessment follows employment qualification 00 pointsage qualification 30 pointslanguage skill qualification 00 pointsrelationship qualification 10 pointscitizenship qualification 10 pointssettlement sponsor qualification 10 pointslocation sponsor qualification 00 pointsbonus 00 pointstotal 60 points88 pas mark 115 point pool mark 110 point total 60 point therefore sufficient achieve qualifying score pas point test reassessment point score spouse primary visa applicant time tribunal decision 89 spouse entitled assessed point legislation time tribunal decision however noted earlier change schedule 6 regulation since date primary assessment thus point allocated time tribunal decision remain allocated time primary assessment 90 time tribunal decision pas mark 115 point pool mark 110 point total 60 point therefore sufficient achieve qualifying score pas point test assessment primary visa applicant spouse criterion subclass 106 regional family family linked visa91 tribunal also considered whether primary visa applicant entitled subclass 106 visa one criterion subclass 106 sponsor must reside designated area time application time application review applicant sponsor lived rooty hill nsw postcode 2766 list designated area set commonwealth gazette gn34 31 august 1994 include postcode sponsor still resides postcode list designated area set gazette notice s34 29august 2001 also include postcode 92 basis evidence tribunal find primary visa applicant time application meet one prescribed criterion grant subclass 106 visa subclause 106 213 93 basis evidence tribunal find visa applicant entitled subclass 106 visa conclusion94 considering evidence reason primary visa applicant failed achieve qualifying score pas point test placed pool either time primary assessment decision 95 failed obtain necessary score point test primary visa applicant fails meet clause 105 222 regulation prescribed criterion grant skilled australian linked class aj subclass 105 skilled australian linked visa primary visa applicant spouse also fail satisfy prescribed criterion 106 213 subclass 106 regional linked visa decision96 tribunal affirms decision review finding visa applicant entitled grant skilled australian linked migrant class aj visa
Downer EDI Engineering Power Pty Ltd re Worsley Efficiency and Growth Downer EDI Engineering Power Pty Ltd CFMEU_AWU Greenfields Agreement 2010 [2010] FWAA 8799 (15 November 2010).txt	downer edi engineering power pty ltd worsley efficiency growth downer edi engineering power pty ltd cfmeu awu greenfields agreement 2010 2010 fwaa 8799 15 november 2010 fair work australiadecisionfair work act 2009s 185 application approval greenfields agreementdowner edi engineering power pty ltd ag2010 15020 worsley efficiency growth downer edi engineering power pty ltd cfmeu awu greenfields agreement 2010building metal civil construction industriesdeputy president mccarthyperth 15 november 2010application approval worsley efficiency growth downer edi engineering power pty ltd cfmeu awu greenfields agreement 2010 1 application made approval enterprise agreement known theworsley efficiency growth downer edi engineering power pty ltd cfmeu awu greenfields agreement 2010 agreement application made pursuant tos 185of thefair work act 2009 act agreement greenfields agreement 2 satisfied requirement ofss 186 187and188of act relevant application approval met 3 agreement contain flexibility term model flexibility term taken term agreement 4 agreement include consultation term model consultation term taken term agreement 5 agreement approved accordance withs 54of act operate seven day date decision nominal expiry date agreement two half year date operation deputy presidentprinted authority commonwealth government printer price code g ae882202 pr503921
1411563 (Refugee) [2015] AATA 3971 (12 November 2015).txt	1411563 refugee 2015 aata 3971 12 november 2015 last updated 2 march 20181411563 refugee 2015 aata 3971 12 november 2015 decision recorddivision migration refugee divisioncase number 1411563country reference chinamember filip gelevdate 12 november 2015place decision melbournedecision tribunal affirms decision grant applicant protection visa statement made 12 november 2015 5 04pmany reference appearing square bracket indicate information omitted decision pursuant tosection 431of themigration act 1958and replaced generic information allow identification applicant relative dependant statement decision reasonsapplication reviewthis application review decision made delegate minister immigration refuse grant applicant protection visa unders 65of themigration act 1958 act applicant claim citizen china applied visa date august 2013 delegate refused grant visa date june 2014 theapplicants appeared tribunal 10 november 2015 give evidence present argument tribunal hearing conducted assistance interpreter mandarin english language relevant lawthe criterion protection visa set in 36of act schedule 2 themigration regulation 1994 regulation applicant visa must meet one alternative criterion 36 2 aa b c applicant either person respect australia protection obligation refugee criterion complementary protection ground member family unit person person hold protection visa class refugee criterionsection 36 2 provides criterion protection visa applicant visa non citizen australia respect minister satisfied australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee together refugee convention convention australia party refugee convention generally speaking protection obligation respect people refugee defined article 1 convention article 1a 2 relevantly defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return section 91r 91s act qualify aspect article 1a 2 purpose application act regulation particular person four key element convention definition first applicant must outside country second applicant must fear persecution 91r 1 act persecution must involve serious harm applicant 91r 1 b systematic discriminatory conduct 91r 1 c example serious harm set 91r 2 act high court explained persecution may directed person individual member group persecution must official quality sense official officially tolerated uncontrollable authority country nationality however threat harm need product government policy may enough government failed unable protect applicant persecution persecution implies element motivation part persecute infliction harm people persecuted something perceived attributed persecutor third persecution applicant fear must one reason enumerated convention definition race religion nationality membership particular social group political opinion phrase reason serf identify motivation infliction persecution persecution feared need besolelyattributable convention reason however persecution multiple motivation satisfy relevant test unless convention reason reason constitute least essential significant motivation persecution feared 91r 1 act fourth applicant fear persecution convention reason must well founded fear add objective requirement requirement applicant must fact hold fear person well founded fear persecution convention genuine fear founded upon real chance persecuted convention stipulated reason real chance one remote insubstantial far fetched possibility person well founded fear persecution even though possibility persecution occurring well 50 per cent addition applicant must unable unwilling fear avail protection country country nationality stateless unable unwilling fear return country former habitual residence expression protection country second limb article 1a 2 concerned external diplomatic protection extended citizen abroad internal protection nevertheless relevant first limb definition particular whether fear well founded whether conduct giving rise fear persecution whether applicant person respect australia protection obligation assessed upon fact exist decision made requires consideration matter relation reasonably foreseeable future complementary protection criterionif person found meet refugee criterion 36 2 may nevertheless meet criterion grant protection visa non citizen australia respect minister satisfied australia protection obligation minister substantial ground believing necessary foreseeable consequence applicant removed australia receiving country real risk suffer significant harm 36 2 aa complementary protection criterion significant harm purpose exhaustively defined 36 2a 5 1 person suffer significant harm arbitrarily deprived life death penalty carried person person subjected torture cruel inhuman treatment punishment degrading treatment punishment cruel inhuman treatment punishment degrading treatment punishment torture defined 5 1 act certain circumstance taken real risk applicant suffer significant harm country arise would reasonable applicant relocate area country would real risk applicant suffer significant harm applicant could obtain authority country protection would real risk applicant suffer significant harm real risk one faced population country generally faced applicant personally 36 2b act section 499 ministerial directionin accordance ministerial direction 56 made 499 act tribunal required take account policy guideline prepared department immigration pam3 refugee humanitarian complementary protection guideline pam3 refugee humanitarian refugee law guideline country information assessment prepared department foreign affair trade expressly protection status determination purpose extent relevant decision consideration specifically tribunal taken account dfat country information report prc 3 march 2015 dfat report dfat thematic report unregistered religious organisation group people republic china dfat thematic report member family unitsubsections 36 2 b c provide alternative criterion applicant non citizen australia member family unit non citizen mentioned 36 2 aa hold protection visa class applied applicant section 5 1 act provides one person member family unit another either member family unit member family unit third person section 5 1 also provides member family unit person meaning given regulation purpose definition expression defined r 1 12 regulation include spouse dependent child consideration claim evidencethe issue case whether australia protection obligation respect applicant decision first named applicant referred simply applicant applicant wife following reason tribunal concluded decision review affirmed country referencethe first second named applicant provided copy passport department immigration based oral written evidence copy passport fluency mandarin chinese absence evidence contrary tribunal find chinese national article 5 nationality law people republic china state part person born abroad whose parent chinese national one whose parent chinese national shall chinese nationality 1 therefore third named applicant chinese national descent tribunal assessed applicant claim protection china s 36 2 aa evidence tribunal applicant right enter reside third country tribunal find excluded protection 36 3 act backgroundthe first second named applicant fujian province china interview delegate applicant said fuqing fujian province tribunal hearing said smaller village sub village could write name village chinese character interpreter guessed pinyin would transcribed village 1 second named applicant told tribunal village nearby came australia study 2007 stopped studying 2009 married date october 2009 lodged joined application first named applicant dependent november 2009 combined application student visa refused remained community unlawfully lodged application protection time child third named applicant born date second child born date child included application tribunal applicant lived australian city 1 2007 recently first named applicant told tribunal moved city 1 city 2 early september 2015 job second named applicant work city 2 five day week get paid amount day however work child cost lot amount saving second child medical condition pay doctor fee applicant said serious medical condition still cost money treat first second named applicant came christian family coming australia went church china hearing told tribunal baptised china around age around age year old delegate asked first named applicant number question designed test knowledge christianity answered relatively well first second named applicant gave consistent evidence relation church frequented city 1 recent move city 2 early september 2015 start tribunal hearing applicant provided letter church city 1 located address letter dated april 2015 confirms first second named applicant come church chinse speaking district meeting regularly tribunal asked first named applicant often used go church city 1 church used go replied went church suburb 1 gathering subsequently moved suburb 2 suburb 3 suburb 4 first third week month applicant went suburb 1 suburb 2 second week suburb 3 last week month went suburb 4 second named applicant also gave evidence went three church location religious brother place suburb 1 primary school used church suburb 3 church suburb 4 said switched brother place location address suburb 2 gave evidence consistent wife went church week one three month brother place suburb 3 second week month suburb 4 week four month end hearing applicant parent sang religious song tribunal accepts applicant genuine local church christian brought christian family local christian claimsonly first named applicant submitted apart cof form 866 claim protection claim related religion christianity family planning law application form written statement lodged together application applicant claimed mother arrested detained chinse authority date 2012 christian gathering placed custody centre number day detained period assaulted harassed threatened public security bureau officer city fuqing applicant provided certificate release detention dated 2012 relation applicant mother state detained local law date date 2012 2 duration detention expired released detention interview delegate applicant made new claim father lost job occupation 2009 2010 christian someone dobbed authority seeking application review tribunal applicant supplemented claim short written statement dated june 2014 pointed delegate decision accepted applicant christian however applicant disagreed delegate view applicant religious group size scope nature bring group attention chinese authority applicant submitted persecution local church member continues provided copy online article persecution christian china none article fujian province tribunal hearing tribunal noted second child applicant protection tribunal said need consider circumstance far impact three member family applicant tribunal first named applicant gave evidence first second named applicant waited outside second named applicant entered hearing room gave evidence everyone room parent child applicant confirmed husband second named applicant registered theirhukou rural resident second named applicant gave evidence brother quit school year 9 start work order pay father medical bill help family financially tribunal earlier hearing asked first named applicant whether parent work whether husband parent work applicant said father worked occupation already said interview department dismissed christian religion work casually another industry second named applicant father passed away since application protection lodged neither applicant mother work present applicant acknowledged prior applying protection last held substantive visa 2009 joined application already married student vsa refused november 2009 tribunal asked applicant waited almost four year applying protection 2013 applicant said time mother arrested migration agent told could apply protection suffered harm tribunal asked provide name migration agent said could recall happened many year ago found could apply protection another church goer asked name person hesitated provided name said woman case similar applicant applicant heard woman story realised applicant could apply protection applicant asked husband return china stopped studying 2009 prior 2012 tribunal pointed child time member family suffered harm china said knew unlawful needed money second named applicant father health problem spending lot money health tribunal asked big applicant village said village 100 people asked many people christian said people said also lot christian surrounding village said arrest happened sunday asked confirm quickly corrected said friday father rang tell special youth gathering friday tribunal advised applicant date 2012 thursday said possible shown online calendar said know father would said friday second named applicant said member family ever suffered harm china reason religion however said wife first named applicant mother detained asked whether knew day week gathering happened said friday asked knew said gathering friday sunday asked knew gathering happen friday sunday wife village said come area tribunal advised date 2012 thursday said could explain discrepancy said left china gathering friday asked give opinion neither member family harmed 2012 even though practising faith many yearsandaccording authority persecute christian said thanks grace god applicant said mother arrested date 2012 since time church goer village practising religion secret move location gathering stay away main street tribunal said seemed would easy find village approximately 100 people people belong local church gather day every week applicant insisted case tribunal put applicant country information according fujian authority rather liberal persecute christian province tribunal referred particular annual report china aid rarely mention fujian province christian harassed 2012 china aid report make mention arrest contrary applicant claim mother detained 2012 tribunal raised issue applicant overall credibility three reason first arrest date 2012 thursday evidence sunday friday response applicant said may gathering regular one perhaps get together something happened church brother sister local christian gathered pray secondly authority persecuted member either family time even though first second named applicant going church many year relative parent sibling said local church still officially proscribed evil cult heresy tribunal advised may true need consider whether authority fujian turn blind eye whether enforce prohibition country information suggests former case first named applicant insisted chinese authority want information come tribunal agreed general proposition noted christian inside outside china seek report suppression christian country second named applicant said may thing reported chinese government afraid adverse social medium coverage abroad outside china argued long christianity remains banned authority use law persecute christian chinese authority unpredictable tribunal suggested ample country information attitude authority across different chinese province many year therefore tribunal level confidence authority fujian change treatment christian future thirdly took long time apply protection response second named applicant told tribunal 2009 valid visa afterwards idea could apply protection 2013 tribunal asked whether remembered seeking advice visa option 2009 2013 said brother b church told could apply said conversation took place year first named applicant pregnant gave birth busy looking baby well founded fear persecutionchristianitythe tribunal already found heading background applicant christian applicant claimed father lost job 2009 2010 christian mother arrested date 2012 detained duration neither applicant parent claimed suffered harm result christian faith china third named applicant born australia never travelled china following reason tribunal accept 1 applicant mother father anybody applicant parent respective family suffered harm past reason religion 2 applicant face real chance persecution reason religion returned china evidence independent source authority fujian province persecute christian province noted applicant submitted tribunal country information treatment christian china discussed applicant hearing none article relation applicant home province fujian overall country information indicates ordinary christian belongs local church fujian practise religion without difficulty tribunal put applicant country information according fujian authority tolerate house church province china aid issue annual report persecution christian china mention fujian province 2011 2012 2013 2014 report 3 applicant claimed mother detained 2012 tribunal aware report independent source arrest christian fujian province specified month 2012 delegate whose decision provided together application review cited decision country information indicating general local government fujian seems relatively liberal towards unregistered church tribunal accepts chinese authority seek suppress information may attract criticism discussed applicant hearing christian ngo inside outside china report persecution christian country tribunal mindful every single arrest instance harassment christian china reported medium ngo report however virtually report last 10 year authority inflict serious harm significant christian fujian well established pattern tolerance authority particular province discussed applicant hearing independent information consistently indicate authority fujian province liberal policy christianity china even though name local church still banned 4 tribunal accepts chinese government remains ideologically opposed christianity province china attempt suppress activity christian belong officially sanctioned church however country information demonstrates law enforced fujian province applicant lodged application protection visa australia almost six year arrival australia almost three year last held student visasand number month alleged detention first named applicant mother lodgement also three four year alleged dismissal father job 2009 10 asked interview hearing trigger investigate whether could apply protection australia said implausibly tribunal view time consider father dismissal important consider affected way first named applicant claim previously obtained advice migration agent told could apply protection family member persecuted harmed applicant could name agent allegedly gave incorrect advice tribunal concluded applicant obtain incorrect advice migration agent fact made excuse order justify delay lodging application protection first second named applicant gave rather vague evidence eventually told could apply protection said someone local church told referred different person source information first named applicant referred woman similar case applicant second named applicant talked certain brother b whose real name brother b context issue delay tribunal note despite claiming know 1 system work 2 given incorrect advice migration agent 3 told might able apply protection brother sister church given professional assistance applicant able put together rather well written application english language proficient application 127 page total includesa written statement chinese english contains comprehensive one paragraph long definition refugee clearly set history alleged past harmform 866 properly signed witness police officer day applicationforms 80 personal particular assessment including character assessment translated document relation alleged detention applicant mother chinacertified copy passportscertified copy third named applicant birth certificatecertified copy marriage certificate according application applicant received assistance preparing application question 17 part b form 866 level skill application prepared inconsistent applicant alleged total ignorance relation protection application tribunal considered whether applicant could almost completely clueless 2007 2013 become aware need week month lodged application protection tribunal find applicant told little bit another church goer would able put together good application tribunal find applicant well informed totally clueless visa option claimed access legal advice tribunal find genuinely believed could practise religion china applicant would applied protection earlier tribunal reject claim applicant mother detained date 2012 tribunal asked day week date 2012 neither applicant said happened almost three year ago could recall day week first named applicant said mother detained regular gathering sunday quickly corrected insisted sunday gathering youth gathering friday second named applicant also said friday gathering local church gathering area friday sunday tribunal showed applicant date 2012 friday first said could explain inconsistency first named applicant even challenged tribunal information date 2012 thursday said may special gathering one get together particular purpose tribunal place weight first named applicant insistence faced evidence contrary date 2012 friday applicant evidence many christian home area first named applicant stated people village christian tribunal find authority interested cracking christian applicant home area first second named applicant village near would detained member applicant family applicant past tribunal accept first named applicant explanation 2012 god somehow protected since 2012 local christian hide said meet house away main street village tribunal considers small village 100 people 30 people go gathering weekly basis almost always friday sunday would rather easy authority locate gathering detain participant tribunal accept gathering house remote part village would sufficient evade authority given small size village credibility concern tribunal give little weight certificate release detention submitted department immigration applicant wife tribunal reject claimed detention first named applicant mother claimed dismissal applicant father job based independent country information absence cogent credible evidence applicant member family suffered persecution past tribunal find applicant practise religion china without hindrance applicant parent came australia member family continued applicant came australia 2007 reason tribunal accept real chance persecution chinese authority reason religion return china foreseeable future contravention family planning legislationchina comprehensive system birth registration requires parent register new child appropriate household registration hukou organ within month birth 5 dfat indicated plan child obtainhukouregistration parent pay appropriate social compensation fee 6 country information indicates child wedlock illegal almost province china attracts fine known social compensation fee 7 among thing social compensation fee payable child wedlock article 10 4 china smarriage law 8 state marriage shall invalid one married party reached statutory age marriage article 6 provides marriage may contracted man reached 22 year age woman 20 year age time marriage first named applicant 19 second named applicant 21 thus would appear time third named applicant born chinese law recognise parent marriage result third named applicant may considered authority born wedlock pursuant art 8 law man woman seek get married proposed marriage found conform provision law couple shall allowed register issued marriage certificate husband wife relationship shall established soon obtain marriage certificate couple shall go marriage registration done delegate considered art 8 allows couple get married retroactively validate marriage entered australia would mean time birth third named applicant parent married therefore third named applicant child born wedlock breach family planning law one possible way read legislation provincial fujian level legislation seems contain provision contrary article 14 1 fujianpopulation planning regulationstates birth marriage child parent including become pregnant reach legally marrying age would considered born stipulated time thus liable pay fee 9 however even delegate wrong advice dfat indicates case parent reached legal age marriage obtain marriage certificate within three month issued social compensation fee fee waived exempted 10 present time birth third named applicant applicant parent marriageable age would appear separate social compensation fee imposed parent u department state note 2012 report human right practice china person couple unapproved child required pay social compensation fee 11 regard fujian province dfat advised january 2013 according fujian provincial family planning bureau individual would fined separately regardless marital status 12 march 2012 dfat stated fujian population family planning commission advised family planning policy shall apply male female party found breach regulation social compensation fee imposed parent separately 13 first child amount fine 0 6 one time baseline average annual disposable income urban resident net average annual income rural peasant year baby born exact figure based county level statistic mean baseline varies throughout province individual actual income level specific circumstance family planning violation provincial regulation also determine fee 14 important note according dfat advice january 2013 social compensation fee differed across district 15 average income level differ district county 16 also local authority issue notice guide local official application relevant regulation 17 2015 dfat report china 3 47 note country wide social compensation fee province formulate policy local authority decide lenient want report also point 3 48 revenue fee directed county level government fee increase annually rise annual income rise based formula person use predict much would liable pay future therefore tribunal taken account fact fee listed put applicant hearing used guide 18 national law offender 30 day pay via lump sum served notice local authority unable pay lump sum 30 day apply approval pay instalment family planning administrative department people government county level 19 dfat confirmed report dated 12 november 2010 deferred payment permissible fujian province 20 according article 10 management measure collection fujian province social compensation fee person concerned shall make lump sum payment person within 30 day time receiving payment notice person concerned difficulty paying social compensation fee submit written request within 30 day receiving notice request addressed authority issued payment notice county town level family planning administrative office requesting pay via instalment written request require supporting documentation unspecified employer residence village committee relevant authority authority responsible collecting payment shall make decision approving refusing instalment within 30 day application date advise person concerned authority decision writing period permitted payment instalment shall exceed three year hearing tribunal discussed advice provided dfat couple get married within 3 month receiving social compensation fee pay first child 21 applicant said know might happen insisted may problem registering third named applicant obtaining ahukoufor referred difficulty people face obtaining ahukouwhen move big city shanghai beijing tribunal asked obtaining ahukoufor third named applicant applicant home area would difficult born china applicant parent insisted supposed permission child third named applicant said pay fee register birth also ahukou tribunal said need consider whether social compensation fee payable small registration fee would also payable australia e g birth death marriage registry 2010 dfat response discussed practicality registering child born outside china official procedure need undertaken child born overseas parent return china extent fee paid child overseas much fee calculated order apply child household registration parent would required provide following documentation chinese translation child birth certificate parent household registration id card passport certificate marriage receipt issued local family planning committee demonstrate family planning fee also known social compensation fee paid list requirement comprehensive local authority may request information identification case case basis 22 tribunal find payment social compensation fee exact purpose allow couple obtainhukouregistration child 23 tribunal satisfied applicant parent suffer additional impediment trying register third named applicant reason location birth outside china hearing applicant express opposition getting married china order satisfy authority legally married tribunal find authority either recognise parent marriage australia based country information paragraph 88 require applicant get married married australia marriageable age tribunal find latter occur applicant parent may inconvenienced may spend money order get married china philosophically opposed marriage forced marriage would constitute serious significant harm hearing parent claimed might able pay pre kinder third named applicant might affect negatively child go kinder pre kinder said third named applicant respiratory condition sometimes wheeze breathes applicant said concerned may still unwell air china really dirty tribunal said medical evidence may suffer serious health problem go back applicant parent said concern tribunal find social compensation fee payable relation third named applicant registered authority householdhukou able access education health service available chinese child registered contrary submission applicant able go pre kindergarten kindergarten school also able receive medical care quality chinese child need social compensation fee payable first additional child respect birth second child 2 3 time average net income rural resident fuqing payable parent second child family subject social compensation fee based fuqing social compensation fee standard provided tribunal dfat tribunal calculates applicant parent would required pay following social compensation fee respect second child born contravention family planning legislation return china fined accordance figure given 2014 60 244 90 366 rmb first additional child respect birth second child 2 3 time average net income rural resident fuqing payable parent fee likely higher dfat information march 2014 2010 2014 fee increased 17 5 year 24 baby born 15 march 2015 fee likely increased 2014 2015 fee increased 10 2013 2014 therefore approximate figure would 67 000 100 000 rmb 60 244 90 366 rmb 10 hearing applicant said could pay educated cannot get good job first named applicant father work casually second named applicant father deceased mother work tribunal also discussed applicant social compensation fee may paid instalment said could still pay tribunal considers applicant exaggerated extent payment fee would cause hardship first named applicant father age year old according applicant form 80 born date many year work ahead tribunal already rejected claim dismissed position christian applicant parent told tribunal parent supportive marriage tribunal accepts second named applicant father deceased however tribunal considers family able pull resource together income applicant parent first named applicant father second named applicant brother pay social compensation fee discussed applicant parent hearing family planning law law general application second named applicant said tribunal felt everyone right one child tribunal said agreed china legislation force people one child pay fee tribunal find legislation far applies applicant parent pay fee distinct consequence non payment fee black child 25 applies chinese population generally penalty imposed parent child wedlock child marriageable age one child within marriage evidence indicate law penalty enforcement measure applied discriminatory manner nothing tribunal suggest law applied applicant parent discriminatory manner reason therefore imposition social compensation fee constitutes persecution first second named applicant defined 91r 1 act accordingly applicant face real chance persecution defined 91r act event already noted fee would payable relation second child applicant present case tribunal asked applicant parent type harm theapplicantsfeared second named applicant said worried third named applicant may quit school 9 year education compulsory finish year 9 support family financially tribunal note third named applicant school age present therefore feared harm occur number year time 9 year start school start school number year time tribunal view second named applicant speculating distant future tribunal find financial difficulty family might number year time would directly caused second child status black unregistered child would reasonably foreseeable future addition tribunal consider forced quit school year 9 constitutes serious significant harm tribunal raised applicant recent country information according china relax family planning policy allow couple two child 26 tribunal accepts present evidence authority fujian started applying new policy clear stage whether would apply prospectively whether would also cover couple applicant parent second child new policy introduced therefore tribunal taken consideration country information impending relaxation family planning law tribunal find imposition social compensation fee applicant parent cause stress would impose financial burden however evidence tribunal satisfied financial emotional stress would magnitude one applicant suffer serious harm amounting persecution reason tribunal find imposition social compensation fee relation second child create real chance persecution one applicant convention reason assessed applicant claim individually cumulatively tribunal find none applicant well founded fear persecution reason religion reason membership particular social group convention reason complementary protectionthe tribunal already found applicant well founded fear persecution reason religion reason tribunal find applicant free practise religion therefore substantial ground believing necessary foreseeable consequence applicant removed australia china real risk anyone suffer significant harm religion relation family planning policy tribunal already found fee payable relation third named applicant tribunal found payment fee relation second child would constitute serious harm member family tribunal find imposition fee relation second child amount significant harm defined 36 2a act fee involve arbitrary deprivation life carrying death penalty torture cruel inhuman treatment punishment degrading treatment punishment defined 5 1 act would cause severe pain suffering whether physical mental pain suffering whether physical mental circumstance could reasonably regarded cruel inhuman nature would fee involve extreme humiliation unreasonable finally evidence tribunal family planning law applied population generally applied discriminatory manner applicant parent third named applicant may personally affected due breach law given risk faced population country generally tribunal find taken real risk suffer significant harm 36 2b c act assessed applicant claim individually cumulatively tribunal find substantial ground believing necessary foreseeable consequence applicant removed australia china real risk anyone suffer significant harm reason 36 2 aa reason given tribunal satisfied applicant person respect australia protection obligation therefore applicant satisfy criterion set 36 2 aa protection visa follows also unable satisfy criterion set 36 2 b c satisfy criterion protection visa cannot granted visa decisionthe tribunal affirms decision grant applicant protection visa filip gelevmember 1 immigration department government hong kong special administrative region 2008 topical issue 9 nationality law people republic china national people congress explanation applied hksar 15 december http www immd gov hk ehtml topical_3_9 htm 2 folio 132 original chinse 93 english version dibp file 3 report available china aid website chinaaid org p annual persecution report html 1 annual report cover period january december year published time february april following year 4 fujian rarely mentioned report breach religious freedom u department state united state commission international religious freedom amnesty international human right watch various christian ngo report china lambert 2006 china christian million monarch book oxford pp 240 1 executive secretary hong kong christian council comment reported immigration refugee board canada immigration refugee board canada 2005 chn100387 e china situation protestant treatment authority particularly fujian guangdong 2001 2005 7 september global chinese ministry 2009 protestant church fujian province omf overseas missionary fellowship international website april global chinese ministry 2009 protestant church fujian province omf overseas missionary fellowship international website april tribunal also considered uk upper tribunal immigration asylum chamber comprehensive decisionqh christian risk china cg 2014 ukut 00086 iac http www bailii org uk case ukut iac 2014 5b2014 5d_ukut_86_iac html 5 huawen liu 2004 child right birth registration international chinese perspective norwegian centre human right pp 15 16http www humanrights uio forskning publ rn 2004 0504 pdf accessed 4 december 2006 u state department 2010 2009 human right report china section 6 11 march 6 department foreign affair trade 2007 dfat report 691 rrt information request chn32173 31 august department foreign affair trade 2010 dfat report 1210 rrt information request chn37505 12 november department foreign affair trade 2005 dfat report 404 rrt information request chn17471 september 7 u department state 2011 country report human right practice 2010 china 8 april section 6www state gov g drl rls hrrpt 2010 eap 154382 htm accessed 22 june 2011 8 adopted third session fifth national people congress september 10 1980 promulgated order 9 chairman standing committee national people congress september 10 1980 amended accordance decision amending marriage law people republic china adopted 21st meeting standing committee ninth national people congress april 28 2001 accessed athttp www npc gov cn englishnpc law 2007 12 13 content_1384064 htmon 9 november 2015 9 population family planning regulation fujian province promulgated 26 july 2002 effective 1 september 2002 unhcr website available athttp www unhcr org refworld pdfid 4242b7394 pdf 10 interpretation family planning law response health family planning commission fujian province health family planning commission fujian province 07 november 2014 cis2f827d91500 11 u department state 2012 country report human right practice 2011 china 23 may section 6 http www state gov j drl rls hrrpt humanrightsreport index htm dlid 186268 accessed 6 february 2013 12 department foreign affair trade 2013 dfat report 1473 mrt rrt information request chn41439 7 february 13 department foreign affair trade 2012 dfat report 1368 rrt information request chn39875 9 march 14 measure administration collection social maintenance fee 15 department foreign affair trade 2013 dfat report 1473 mrt rrt information request chn41439 7 february 16 department foreign affair trade 2013 dfat report 1473 mrt rrt information request chn41439 7 february 17 department foreign affair trade 2013 dfat report 1473 mrt rrt information request chn41439 7 february 18 department foreign affair trade 2013 dfat report 1473 mrt rrt information request chn41439 7 february 19 article 6a measure administration collection social maintenance fee 20 department foreign affair trade 2010 dfat report 1210 rrt information request chn37505 12 november 21 interpretation family planning law response health family planning commission fujian province health family planning commission fujian province 07 november 2014 cis2f827d91500 22 department foreign affair trade 2010 dfat report 1104 china rrt information request chn36059 12 february 23 department foreign affair trade 2007 dfat report 691 rrt information request chn32173 31 august department foreign affair trade 2010 dfat report 1210 rrt information request chn37505 12 november department foreign affair trade 2005 dfat report 404 rrt information request chn17471 september 24 maximum fee payable 3 time net income rural resident 55 614 2010 60 882 2011 71 478 2012 increase 17 5 2011 81 000 2013 90 366 2014 25 chen shi hai v mima 2000 hca 19 2000 201 clr 293 per gleeson cj gaudron gummow hayne jjat 19 21 see also per kirby j 72 26 explained china one child policy abc 29 october 2015 accessed athttp www abc net au news 2015 10 29 one child policy 6897544on 11 november 2015
Ross v The Commissioner of Police [2016] QDC 205 (12 August 2016).txt	ross v commissioner police 2016 qdc 205 12 august 2016 last updated 12 august 2016district court queenslandcitation ross v commissioner police 2016 qdc 205parties benjamin luke ross appellant andthe commissioner police respondent file 19 2016division criminalproceeding appealoriginating court magistrate court beenleighdelivered 12 august 2016delivered brisbanehearing date 2 august 2016judge smith dcjaorders 1 appeal allowed 2 sentence varied appellant released parole immediately 3 sentence otherwise confirmed 4 appellant released parole pursuant tos 200 1 thecorrective service act 2006 q 5 appellant required report probation parole office required act 9 00am 5 00pm today next business day 6 appellant fails unlawfully large 7 appellant legal representative undertaken inform obligation report unders 160g 5 thepenalties sentence act 1992 q 8 pursuant tos 159aof thepenalties sentence act 1992 q declared appellant spent eight day presentence custody declare time imprisonment already served date appellant held presentence custody 14 june 2016 22 june 2016 9 pursuant tos 35of thepenalties sentence acti order defendant pay compensation sum 3 000 00 registrar district court beenleigh within seven day transmission tony robert lumb address provided registrar director public prosecution default payment within time order appellant imprisoned period six week paid within time direct appellant appear district court beenleigh 10am 22 august 2016 show cause default imprisonment enforced catchword criminal law judgment punishment appeal assault occasioning bodily harm company whether magistrate erred decision whether sentence manifestly excessive leave sought adduce new evidence whether admitted justice act1886
Australian Nursing and Midwifery Federation (SA Branch) re The Australian Nursing and Midwifery Federation (SA Branch) Employees Agreement 2011 [2012] FWAA 3997 (22 May 2012).txt	australian nursing midwifery federation sa branch australian nursing midwifery federation sa branch employee agreement 2011 2012 fwaa 3997 22 may 2012 fair work australiadecisionfair work act 2009s 185 enterprise agreementaustralian nursing midwifery federation sa branch ag2012 4932 australian nursing midwifery federation sa branch employee agreement 2011clerical industrycommissioner gregorymelbourne 22 may 2012application approval australian nursing midwifery federation sa branch employee agreement 2011 1 application made approval enterprise agreement known asthe australian nursing midwifery federation sa branch employee agreement 2011 agreement application made pursuant tos 185of thefair work act 2009 act made australian nursing midwifery federation sa branch agreement single enterprise agreement 2 accepted undertaking attached decision given employer 3 satisfied requirement ofss 186 187 188and190as relevant application approval met 4 australian municipal administrative clerical service union association professional engineer scientist manager australia bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 note agreement cover organisation 5 agreement approved accordance withs 54of act operate 29 may 2012 nominal expiry date agreement 31 december 2013 commissionerprinted authority commonwealth government printer price code g ae893838 pr523594 attachment
DPP v Harris [2018] VCC 960 (11 April 2018).txt	dpp v harris 2018 vcc 960 11 april 2018 last updated 29 june 2018in county court victoriarevised restrictedsuitable publicationat melbournecriminal divisioncr 17 00022director public prosecutionsvronald harris judge honour judge lawsonwhere held melbournedate hearing 4 april 2018date sentence 11 april 2018case may cited dpp v harrismedium neutral citation 2018 vcc 960reasons sentence catchword criminal law sentencing aggravated burglary theft false imprisonment contravention community correction order immediate term imprisonment imposed appearance counselsolicitorsfor crownmr maguire plea m mcdonald sentence john cain solicitor public prosecutionsfor accusedmr kenny plea m cannon sentence stary norton halphenher honour 1 ronald harris pleaded guilty three charge theft one charge aggravated burglary one charge false imprisonment 2 objectively charge serious reflected maximum penalty prescribed parliament namely 25 year imprisonment respect aggravated burglary ten year imprisonment respect remaining charge indictment 3 25 march 2015 geelong magistrate court convicted sentenced nine month imprisonment followed 12 month community correction order condition related three burglary charge three theft charge unlawful assault charge theft shop charge 4 reason conviction recorded respect charge indictment breaching condition community correction order contravened community correction order consented court hearing contravention community correction order admitted contravention fact form basis charge subject geelong magistrate court order 5 three burglary theft charge involved entering residential premise horsham 10 january 2014 stole various item unlawful assault related family violence inflicted upon partner sarah walton 5 december 2014 theft shop involved removing nail gun nail without payment mitre 10 store north geelong 29 july 2014 6 release prison 5 september 2015 served nine month gaol term commenced community correction order adhere condition committed offending subject charge indictment 7 maximum penalty prescribed respect contravention community correction order three month imprisonment addition fall sentenced respect original charge upon cancellation order 8 arraigned respect indictable offence also admitted prior criminal history extensive one spanning period 8 march 1995 29 june 2015 numerous appearance horsham child court child spent time youth training centre 9 adult court many occasion 28 october 1998 29 june 2015 many conviction dishonesty type offence burglary theft firearm type offence offence violence person breach court order 10 spent many period time custody adult period 2000 2015 face real risk becoming institutionalised unless deal underlying offending behaviour trigger offending 11 move sentence basis opening read plea hearing learned prosecutor mr maguire 12 offending occurred 3 may 5 may 2016 charge 1 concern theft motor vehicle stole vehicle 3 may 2016 bp service station located prince highway corio owner vehicle darren mckay parked 2001 ford station wagon registered qsj 533 petrol bowser gone service station purchase item eat drink left key ignition whilst shop entered vehicle drove away charge 1 theft various possession belonging owner vehicle along item belonging another talitha dixon included boot car pair white rigger glove plastic grey toolbox tool red rope silver duct tape wrapped around end 13 thursday 5 may 2016 approximately 2 30 drove stolen ford station wagon home andrew flavel location manifold height mr flavel known forced entry mr flavel home breaking chain window front house entered property andrew flavel 19 year old son jonathan flavel asleep inside house 14 prosecution case presence person person premise known time forced entry evidenced clothing wore namely balaclava dark clothing glove possession red rope reckless whether person present charge 2 aggravated burglary 15 entry proceeded bedroom occupied jonathan flavel asleep woke word effect make move shoot took red rope placed around victim neck tied rope ankle hand effectively hog tying 16 rolled lying face bed whilst tied threatening towards numerous occasion told would shoot cooperate see gun saw holding something hand could see properly one time referred 9 glock asked victim anyone else house tell father also present 17 started looking around bedroom opening cupboard pulling content asked key motorbike hid money told move left bedroom 18 heard rummaging around house going kitchen lounge room area looking valuable checked victim stage went backyard returned bedroom switched light time victim saw wearing black balaclava eye mouth fully cut cream coloured glove greyish green hooded jacket black adidas tracksuit pant 19 time whilst room tried get rope said move come back shotgun rebel mate charge 3 false imprisonment 20 left house went garage opened roller door eventually started black toyota coupe registered 1ae 2ee vehicle belonged andrew flavel drove vehicle away stole numerous item belonging andrew flavel set schedule 1 indictment charge 4 theft various item belonging jonathan flavel namely mobile phone wallet key clothing passport charge 5 theft 21 jonathan flavel waited five minute left eventually freed went garage saw father vehicle taken went father room woke told happened 22 police called attended home 23 6 15 witness james coates called 000 report black sport car parked dangerously barrabool road noted man car either asleep something 24 police attended vehicle welfare check driver advised description vehicle matched description one stolen aggravated burglary 25 arrested scene police taken geelong police station interviewed made admission made number false denial 26 police located various item vehicle including cream coloured glove black balaclava wallet containing myki card shell plus card westpac card library card name talitha dixon membership card name darren mckay property left inmr mckay vehicle time stolen service station key belonging ford owned darren mckay set key belonging unknown driver also located addition property stolen andrew jonathan flavel also located together key toyota coupe 27 subsequently charged matter subject committal hearing 12 january 2017 matter listed trial circuit commencing geelong 31 july 2017 reached trial adjourned next circuit commencing 29 january 2018 prior matter commencing matter resolved arraigned matter proceeded plea hearing 28 mr harris offending represents serious example sort serious offence particularly aggravated burglary false imprisonment charge objectively offending serious involving entry private residence early hour morning whilst disguised equipped rope subsequently employed tie victim jonathan flavel disturbed victim sleep thereafter threatened young man whilst vulnerable compromised state aggravated burglary offence preparatory offending indictment effected following entry 29 sentencing real need court emphasise general specific deterrence behalf community must denounce behaviour 30 offending profound impact upon andrew jonathan flavel andrew flavel victim impact statement outline inability feel safe inside home resulting sleep issue anxiety particularly hearing unusual noise night feel let son position protect us sleeping tablet taken positive action better secure home including installing alarm security light changed long term plan build new home property proposes sell move home quickly possible greater concern impact son relationship prior crime occurring son jonathan would stay least week son previously living interstate several year process rebuilding relationship father since crime committed son reduced time spent home associate house crime almost two year staying enjoying opportunity renew relationship 31 jonathan flavel confirms traumatised action difficulty sleeping experience paranoia home hypervigilant take time usual lock home feel vulnerable whenever asleep suffered depression moved away geelong quit motor mechanic apprenticeship start totally different job help reduce memory past unease felt attempted speak counsellor assisted feeling socially withdrawn lack trust people limit social activity paranoid public always watching back work rarely speaks anyone try keep work go home recently trying make attempt go gym continuing learning martial art writing music 32 mr kenny behalf conceded appropriately serious example serious type offending aggravated burglary offence acknowledged penalty available court imposition immediate term imprisonment confirmed offending committed time homeless heavily affected drug 33 background information provided contravention report completed dianne elli specialist case manager geelong community correctional service writer confirms presented complex range risk need arising long term use illicit drug past history homelessness mental health issue attributed failure adhere term cco reason condition well chaotic lifestyle living appeared exacerbated reason homelessness following release gaol complete community work hour found difficult comply condition stated presented somebody struggling compliance fragility attributed post traumatic stress disorder anxiety tried encourage seek mental health assistance 34 course order advised m elli past history sexual abuse hand gerald ridsdale referred various service counselling considered failed make progress towards satisfying condition order despite afforded discretion support recommended community correction order cancelled sentenced original charge 35 assistance two report mr jeffrey cummins consultant clinical psychologist tendered support plea mitigation seen 11 march 2015 23 march 2018 set background full 36 person never married two biological child stepdaughter relationship stepdaughter mother age 15 around age 26 19 year old son relationship also daughter another relationship contact currently relationship last relationship broke two three year ago 37 eldest three boy difficulty younger brother one distant relationship life elderly father geelong 38 visit prison elderly father well son keep touch stepdaughter communication son 39 mr cummins provides extensive background history including disclosure made relating abuse hand gerald ridsdale family property shortly following mother death abuse occurred period 12 month aged four five indeed sentenced mr ridsdale respect offending victim sentence imposed court 31 august 2017 40 tragically mother killed motor vehicle accident passenger accident occurred aged four two younger brother raised father single parent small rural hamlet victoria known quantong 41 completed grade 6 quantong primary school attended horsham technical school passed year 8 passed equivalent year 10 whilst custody 42 little way formal work experience early 20 work gymnastics coach taught thai boxing intermittently worked casually farm horsham geelong also history working car wrecker last employment recorded late 20 worked aquarium geelong 43 age 26 stabbed following plastic surgery face obvious scar right cheek right side nose 44 long term history drug abuse commencing smoking cannabis age 15 injecting heroin age 17 prescribed methadone since early mid 20 started injecting amphetamine age 17 progressed injecting methamphetamine around age 30 31 past never residential drug detoxification rehabilitation treatment 45 currently satisfied detoxed drug negative urine sample provided court also hold position peer listener marngoneet correctional centre consequence must use drug order deemed suitable responsibility role since 12 january 2018 46 mr cummins noted offending occurred context homelessness living drug house corio aware disclosed worker historical sexual abuse recorded told went downhill using ice day shooting point gram day could trust anyone given evidence via video link royal commission historical child sexual abuse given using ice 47 told mr cummins know victim jonathan flavel feel terrible done said rope car stolen 48 thought may planned something vague memory balaclava coming mate place 49 told mr cummins custody seen psychiatric doctor march 2018 medicated community antipsychotic antidepressant recently said experiencing anxiety attack nightmare flashback sexually abused child also stabbed punched 50 currently dose 80 milligram methadone daily reduced 280 milligram dosage whilst community 51 never formal mental health treatment never treatment either community custody ongoing psychological psychiatric issue relevant way background 52 favour taken account mitigating factor highlighted mr kenny entered plea guilty late stage proceeding prior trial commencing nonetheless still real utility plea spared state cost inconvenience expense trial plea important particularly circumstance case victim crime adversely affected traumatised action spared trauma come court give evidence trial facilitated justice sentence discounted accordingly 53 consider plea guilty also evidence remorse satisfied since custody detoxed thinking clearly genuinely remorseful harm terror caused 54 mr cummins diagnosed complex post traumatic stress disorder stated present psychotic schizophrenic present obvious antisocial personality disorder although clearly significant history antisocial offending said interview revealed dependent personality style raise possibility unresolved attachment issue presumably related fact mother died young 55 importantly expressed willingness undertake program address underlying offending behaviour 56 said presented mildly moderately anxious moderately depressed stated feeling depressed nature offending described quite unacceptable character 57 accept trauma past large extent real contributing factor long term drug use way explains extensive prior criminal history offending behaviour 58 regard majority decision bugmy v queen 1 effect background significant hardship diminish time repeated offending given full weight formulating sentence impose 59 however given violent nature offending concomitant need provide community protection 60 somebody understand wrong accept responsibility behaviour 61 overall guarded rehabilitation prospect 62 important expressed willingness participate residential drug treatment also mental health treatment 63 mr cummins considers ready engage mental health treatment something never received date reiterated imperative participate anger management program also offered general mental health treatment specific focus history sexually abused gerald ridsdale considered regard diagnosis complex post traumatic disorder prognosis respect future offending guarded likely improve able remain drug free community 64 mr cummins report together comment recommendation sentencing remark provided relevant sentencing authority provide guidance future 65 sentencing principle general specific deterrence significance together denunciation must impost punishment 66 circumstance term imprisonment appropriate disposition 67 consider moment time probably turning point imperative correctional authority give consideration properly providing adequate mental health treatment enable come term complexity past 68 appropriate support remaining drug free enhance future rehabilitation prospect prospect clearly contingent upon fully properly supported community stable residence upon release appropriate rehabilitation treatment respect drug long term mental health issue 69 accept expressed opinion mr cummins suffer complex post traumatic stress disorder consider therefore time gaol difficult prisoner suffer condition apparent managing well prison time consider risk condition deteriorating proper support put place ensure condition appropriately managed 70 also regard submitted morning year held custody mrc date june 2016 july 2017 held onerous condition result gaol riot led restriction prisoner freedom within institution taken account 71 formulating appropriate sentence regard principle totality cumulation various charge indictment reflect separate criminality 72 proceed sentence could please stand mr harris formal court order follows 73 charge 1 indictment convicted sentenced 12 month imprisonment74 charge 2 convicted sentenced five year imprisonment base sentence 75 charge 3 convicted sentenced two year imprisonment 76 charge 4 convicted sentenced two year imprisonment 77 charge 5 convicted sentenced nine month imprisonment 78 make following order cumulation three month sentence imposed charge 1 4 six month respect sentence imposed charge 3 cumulative upon upon base sentence make total effective sentence six year imprisonment circumstance community correction order cancelled sentenced respect charge regard content contravention report degree compliance 79 respect charge contravention community correction order imposed geelong magistrate court 25 mach 2015 convicted sentenced one month imprisonment community correction order cancelled sentenced respect charge three burglary three theft one unlawful assault charge one theft shop taken account already served nine month respect sentence degree compliance order 80 convicted sentenced aggregate term three month imprisonment direct sentence cumulative upon sentence imposed respect indictment 81 total effective sentence therefore six year three month declare must serve four year six month eligible parole 82 make following declaration pre sentence detention declare spent 706 day pre sentence detention direct entered record court 83 make disposal order sought compensation order sought 84 respect indictment make following 6aaa declaration plea guilty would imposed term imprisonment eight year serve six year imprisonment honour think cover everything got order m mcdonald yes honour honour sign think math right m cannon checked time m cannon think right honour honour right thank thank attendance m cannon thank honour honour mr harris taken downstairs thank mr harris addendum following date sentence court appeal handed two decision addressings 83asof thesentencing act 1991 luu v r 2018 vsca 92 16 april 2018 bieljok v r 2018 vsca 99 85 provide court faced contravention cco imposed combination sentence imprisonment judge ought set aside whole sentence imposed cancelling cco setting aside term imprisonment earlier imposed court would sentence afresh pre sentence detention declared including time already served offender original sentence imprisonment 2 86 date sentence 11 april 2018 honour dealt solely part combination sentence resulted imposition cco accordingly 23 may 2018 honour amended final order set aside whole sentence imposed geelong magistrate court 25 march 2015 amendment made pursuant tosection 104bof thesentencing act 1991 87 final order follows charge 1 convicted sentenced 12 month imprisonment charge 2 convicted sentenced 5 year imprisonment charge 3 convicted sentenced 2 year imprisonment charge 4 convicted sentenced 2 year imprisonment charge 5 convicted sentenced 9 month imprisonment unrelated summary charge 9 brought back day contravention community correction order imposed geelong magistrate court 25 march 2015 following order made convicted sentenced 1 month imprisonment sentence imposed geelong magistrate court 25 march 2015 set aside sentenced original charge unrelated summary charge 1 2 3 4 5 6 7 8 convicted sentenced 12 month imprisonment direct 3 month sentence imposed charge 1 6 month sentence imposed charge 3 3 month sentence imposed charge 4 12 month sentence imposed unrelated summary charge 1 2 3 4 5 6 7 8 served cumulatively upon upon sentence imposed upon charge 2 total effective sentence state 7 year imprisonment direct minimum term served eligible parole 4 year 6 month imprisonment declare period prisoner custody respect offence namely 981 day reckoned period imprisonment already served sentence deducted administratively 1 2013 302 alr 192 2 luu v r 2018 vsca 92 21 23
Southern Select Beef Pty Ltd re Southern Select Beef Pty Ltd Employee Collective Agreement 2009 [2010] FWAA 2380 (19 March 2010).txt	southern select beef pty ltd southern select beef pty ltd employee collective agreement 2009 2010 fwaa 2380 19 march 2010 fair work australiadecisionfair work act 2009s 185 approval enterprise agreementsouthern select beef pty ltd ag2009 24270 southern select beef pty ltd employee collective agreement 2009meat industrycommissioner foggomelbourne 19 march 2010application approval southern select beef pty ltd employee collective agreement 2009 1 application made approval enterprise agreement known southern select beef pty ltd employee collective agreement 2009 agreement application made pursuant tos 185of thefair work act 2009 act made southern select beef pty ltd agreement single enterprise agreement 2 agreement made bridging period1as defined thefair work transitional provision consequential amendment act 2009 transitional act accordingly considering whether approve agreement taken account provision part 2 4 chapter 2 act modified schedule 7 transitional act 3 satisfied requirement s 186 187 188 act relevant application approval met 4 pursuant 190 act applicant provided following undertaking 1 reference commission agreement replaces fair work australia 2 reference office employment advocate agreement replaced fair work australia understood agreement commence operation 7 day approval fair work australia 3 model flexibility clause apply 4 provide undertaking relation settlement dispute process section 8 2 employee union member able represented employee representative 5 pursuant 202 4 act model flexibility term prescribed thefair work regulation 2009is taken term agreement 6 agreement approved accordance 54 act operate 26 march 2010 nominal expiry date agreement 23 june 2013 commissioner1item 2 part 1 schedule 2 printed authority commonwealth government printer price code g ae875014 pr995342
Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union v Visy Packaging Pty Ltd [2011] FCA 1001 (12 August 2011).txt	automotive food metal engineering printing kindred industry union v visy packaging pty ltd 2011 fca 1001 12 august 2011 last updated 1 september 2011federal court australiaautomotive food metal engineering printing kindred industry union v visy packaging pty ltd 2011 fca 1001citation automotive food metal engineering printing kindred industry union v visy packaging pty ltd 2011 fca 1001parties automotive food metal engineering printing kindred industry union jonathan philip zwart v visy packaging pty ltd tony scott robin streetfile number vid 867 2011judge dodds streeton jdate judgment 12 august 2011catchwords industrial law application interlocutory relief employer suspended employee full pay conduct investigation alleged misconduct employee claimed investigation suspension constituted unlawful adverse action exercised workplace right occupational health safety legislation employer proffered undertaking finalise investigation within several day implement disciplinary outcome applicant given opportunity file application interlocutory relief whether serious question tried whether balance convenience favour grant interlocutory relieflegislation fair work act 2009 cth s 12 340 341 342occupational health safety act 2004 vic s 25 54cases cited cpsu v telstra corporation ltd 2001 fca 267 2001 107 fcr 93citedjones v queensland tertiary admission centre ltd 2009 190 ir 218 consideredkimpton v minister education victoria 1996 65 ir 317 consideredpatrick stevedore operation 2 pty ltd or v mua 1998 hca 30 1998 195 clr 1citedpolice federation australia v nixon 2008 fca 467 2008 168 fcr 340consideredunited firefighter union australia v metropolitan fire emergency service board 2003 fca 480 2003 198 alr 466considereddate hearing 12 august 2011date publication reason 30 august 2011date last submission 12 august 2011place melbournedivision general divisioncategory catchwordsnumber paragraph 85counsel applicant mr h borenstein sc mr c dowlingsolicitor applicant slater gordoncounsel respondent mr follettsolicitor respondent fisher cartwright berrimanin federal court australiavictoria district registrygeneral divisionvid 867 2011between automotive food metal engineering printing kindred industry unionfirst applicantjonathan philip zwartsecond applicantand visy packaging pty ltdfirst respondenttony scottsecond respondentrobin streetthird respondentjudge dodds streeton jdate order 12 august 2011where made melbourneother matter upon first respondent counsel undertaking direct second applicant attend interview part investigation 9 00am tuesday 16 august 2011 53 charles street north coburg b allow second applicant one support person choosing interview referred subparagraph c finalise investigation notify applicant outcome investigation 11 00am thursday 18 august 2011 implement apply disciplinary outcome investigation 2 00pm monday 22 august 2011 e event 2 00pm monday 22 august 2011 applicant either file serve interlocutory application restrain implementation application disciplinary outcome investigation whether servant agent implement apply disciplinary outcome hearing determination interlocutory application court order application interlocutory relief dismissed 4 00pm friday 9 september 2011 applicant file serve statement claim 4 00pm friday 7 october 2011 respondent file serve defence 4 00pm friday 21 october 2011 applicant file serve reply matter listed direction first available date november 2011 party liberty apply short notice cost reserved note entry order dealt rule 39 32 thefederal court rule 2011in federal court australiavictoria district registrygeneral divisionvid 867 2011between automotive food metal engineering printing kindred industry unionfirst applicantjonathan philip zwartsecond applicantand visy packaging pty ltdfirst respondenttony scottsecond respondentrobin streetthird respondentjudge dodds streeton jdate 12 august 2011place melbournereasons judgmenton 12 august 2011 made order set dismissing application interlocutory relief upon undertaking respondent reason order set applicant automotive food metal engineering printing kindred industry union amwu jonathan philip zwart application dated 11 august 2011 pursuant tos 340of thefair work act 2009 cth act andss 21 22and23of thefederal court australia act 1976 cth sought interlocutory relief respondent visy packaging pty ltd visy tony scott robin street follows order pending hearing determination proceeding order court first respondent restrained servant agent investigating first applicant conduct 5 august 2011 order pending hearing determination proceeding order court first respondent restrained servant agent continuing suspension first applicant work commenced 8 august 2011 final relief sought follows declaration first respondent instituting investigation conduct second applicant contravened s340 act injuring employment altering position prejudice exercised workplace right 5 august 2011 declaration first respondent suspending second applicant work 8 august 2011 contravened s340 act injuring employment altering position prejudice exercised workplace right 5 august 2011 declaration second respondent person involved contravention referred paragraph 1 2 within meaning s550 act thereby taken contravened s340 act way set paragraph 1 2 declaration third respondent person involved contravention referred paragraph 1 2 within meaning s550 act thereby taken contravened s340 act way set paragraph 1 2 imposition penalty first respondent respect contravention referred paragraph 1 2 imposition penalty second respondent respect contravention referred paragraph 1 2 imposition penalty third respondent respect contravention referred paragraph 1 2 order pursuant s546 3 b act penalty paid first applicant order first respondent restrained servant agent engaging disciplinary action inquiry relation applicant conduct 5 august 2011 injunction first respondent restrained servant agent suspending applicant work order court seem appropriate application supported affidavit jonathan philip zwart sworn 11 august 2011 written submission dated 12 august 2011 application opposed first respondent visy relied affidavit anthony scott affirmed 12 august 2011 written submission dated 12 august 2011 evidenceevidence mr zwartmr zwart currently employed visy machine setter maintaining repairing machine production line automatic press section department aps department visy plant coburg many year member amwu registered employee organisation since may 2003 delegate amwu head delegate plant mr zwart commenced employment visy predecessor southcorp packaging pty ltd 1988 save year without pay 2002 2003 remained continuous employment since visy took february 2001 2009 mr zwart elected health safety representative hsr theoccupational health safety act 2004 vic oh act following ballot undertook five day course role recently undertaken refresher training mr scott second respondent production manager visy plant mr street third respondent operation manager coburg food beverage mr scott report june 2011 visy announced new safety policy worker informed site atrocious safety record tough safety policy would implemented mr zwart deposed 5 august 2011 8 00am noticed reversing forklift beeping prepared internal hazard report left mr scott tray considered non beeping forklift constituted immediate safety risk worker pedestrian operated mr zwart told denis radic forklift operator operate forklift accordance visy standard operating procedure dated 1 february 2011 placed danger operate sign forklift removed key returned key operator shortly allow park forklift way 10 00am mr zwart discussed problem mr scott mr radic mr radic said forklift problem forklift brought another section mr scott behest mr radic reversed failed beep loudly although audible mr scott noise drowned according mr zwart mr scott object tagged second forklift took key third forklift another area satisfactorily audible beeper used 11 00am returned department shortly midday mr zwart summoned meeting production office mr scott mr flanagan senior manager material separation department m tyler meers oh officer mr renehan worksafe inspector mr zwart deposed mr renehan questioned role training power hsr mr zwart informed mr renehan inaudible reversing beeper step taken mr renehan queried whether situation required mr zwart direct cessation work mr zwart responded done simply identified tagged faulty dangerous equipment mr zwart deposed sought representation assistance union interval resumed meeting attended people mr renehan alleged mr zwart directed cessation work mr zwart denied according mr zwart work ceased production machinery operating mr zwart deposed resumed work 2 00pm mr renehan apologised approach interview mr zwart observed mr renehan stage inspected forklift 3 30pm mr scott asked mr zwart inspect forklift serviced working satisfactorily following monday 11 00am m tyler meers handed mr zwart worksafe inspector report relevantly stated accordance withsection 75of theoccupational health safety act 2004 act request robin street attended workplace enquire direction cease work made health safety representative accordance withsection 74of act detail two nissan forklift tagged due inaudible reversing beeper auto press section visit met held extensive discussion well accompanied inspection forklift work area advised forklift operating area approximately 2 year recorded incident near miss relation reversing beeper 4 identical forklift site similar issue raised hazard report completed 8 00am stating reversing beeper aps forklift audible issue discussed team leader time also operator forklift company confirmed hearing protector required area wearing hearing protector may lessen employee ability hear warning device reversing beeper company implemented number measure control risk associated forklift colliding pedestrian physical barrier 3 metre separation distance dedicated marked walkway advised forklift used approximately 30 shift time mr zwart confirmed elected hsr belief immediate risk however belief issued work cessation used company tag procedure belief number area sic pose risk forklift colliding pedestrian mr zwart reiterated acting concerned employee rather hsr mr zwart chose lunch break take part inspection sought ask question undertake inspection affected area workplace reviewed operation nissan forklift 1 model mcug1f2f56du serial 9r07382 model mcug1f2f35du serial 9r0743i wearing hearing protector observed forklift placed reverse reversing beeper barely audible observed forklift operating flashing light horn reversing light forklift 1 reversing light operate company advised adapt lift forklift service provider site contacted due attend review reversing beeper operation basis company implemented number control measure reduce risk associated forklift colliding pedestrian opinion immediate risk allowed company operate forklift interim sic requirement operator operate horn reversing 3 00pm mr zwart summoned meeting messrs scott flanagan union delegate mr prassad whose presence mr zwart requested mr zwart deposed scott advised number issue needed speak investigate including failure follow process investigation following worksafe inspector report company trust confidence context acted relation inaudible reversing forklift beeper issue alleged failure report near miss given letter signed street suspended sic full pay told meeting would held within day scott said able bring support person would get letter relation meeting within 24 hour letter handed mr zwart stated dear jonsuspension pay pending performance management investigationfurther discussion today confirm suspended pay pending investigation allegation visy performance management policy relation tagging 2 forklift 5th august 2011 following matter alleged arising event failure use appropriate dispute resolution procedure lying breach trust confidence please note allegation serious proven may warrant summary dismissal suspension remain contactable business hour contact shortly arrange meeting give opportunity respond allegation also encourage support person present meeting support may colleague friend union delegate please advised directed attend site discus matter anyone without prior authorisation allegation investigated circumstance relating matter remain strictly confidential question may addressed directly question relation please hesitate call faithfullyrobin streetoperations manager coburg food beveragemr zwart deposed provided detail allegation know investigated deposed stood caused significant stress designated health safety representative designated workgroup aps current health safety representative designated work group fact disciplined stood well known within factory embarrassing stressful company raised concern quality work day clear reversing beeper forklift inaudible therefore inadequate dangerous neither scott radic flanagan raised objection anything 5 august company identified reason investigation alleged wrongdoing proceed whilst stood told scott treat stand holiday consider excluded workplace work colleague friend disciplinary cloud arising accepted safety issue holiday correspondence ensued visy solicitor mr zwart letter dated 9 august 2011 addressed mr street mr zwart solicitor alleged breach workplace right provision act anti discrimination provision oh act letter required investigation immediately terminated failing injunction would sought response letter dated 10 august 2011 mr street stated mr zwart nothing fear visy role hsr asserted detriment mr zwart commencement investigation letter stated visy made judgment mr zwart undertaking investigation actually presume done nothing wrong letter dated 10 august 2011 mr zwart solicitor sought reinstated dealt dispute resolution procedure relevant enterprise bargaining agreement failing would apply injunction evidence mr scottmr scott production manager site responsible safety quality monitoring improvement deposed forklift two five operating area two year never near miss reported concern employee required use procedure place ten year near miss filling hazard near miss report misuse procedure could cause lost production within minute hinder elimination real hazard company trusted employee use procedure cooperatively responsibly oh issue dispute resolution procedure required attempt resolve issue within reasonable time consider whether temporary measure could used mr zwart filled eight hazard report near miss report last 12 month mr scott deposed 5 august 2011 mr zwart initially stated locked forklift unsafe due reversing beeper working quiet would lock forklift others problem fleet operational time mr zwart said audit day noticed mr scott acknowledged first forklift beeper could improved although noisiest part site mr zwart tagged stating company problem forklift mr scott contacted service company adapta lift informed australian standard applied reversing beeper proposed using horn warning device repair check done proposal rejected mr zwart insisted beeper fixed older forklift another department used short time mr street contacted worksafe cessation work mr scott deposed meeting worksafe inspector mr renehan said need one warning device forklift necessarily reversing beeper mr zwart asserted immediate danger forklift maintained seen four near miss although reported mr zwart denied told anyone stop work action resulted cessation mr zwart left meeting returned announced acting concerned employee left returned declined answer question unless union support person present thus would escort mr renehan around site basis would answer question mr zwart walked lunch mr renehan mr scott others checked tagged forklift found reversing beeper operative mr renehan approved removal tag return forklift operation adapta lift modified beeper higher pitch condition driver sound horn keep look mr zwart return lunch removed lock one forklift mr renehan approval mr scott removed tag second forklift mr zwart tony psila another employee visy talked mr renehan ear shot mr renehan left 3 30pm time beeper modified may loud mr scott deposed visy concerned mr zwart apparent serious misconduct 5 august 2001 follows failure follow oh issue dispute resolution procedure particularly causing cessation work circumstance appropriate control measure flashing light reversing light already operation failing co operate engage reasonable discussion equally reasonable practicable alternate temporary control measure ensure business continuity seemingly high interest aps department regard employee elsewhere saying protecting employee circumstance employee site made complaint forklift failing co operate worksafe cessation work occurred andfailing report near miss assuming near miss b lying insofar said initially acting oh rep later changed story saying acting concerned employee andhis claim near miss circumstance none reported c loss trust confidence also behaviour walking meeting failing comply express direction 8 august 2011 mr scott superior mr street proposed investigate alleged serious misconduct suspend mr zwart full pay accordance company performance management policy mr scott knew previously occurred site deposed mr street informs following normal procedure case meeting 3 00pm 8 august 2011 mr flanagan mr zwart support person mr scott told mr zwart following four issue concern failure follow process 5 august locking forklift b investigation following worksafe report c trust confidence relation context acted failure report alleged near miss mr zwart asked repeat allegation saw writing also directed ensure confidentiality maintain integrity investigation told would receive letter outlining suspended immediately full pay also told expect support person finally requested leave site safe manner undertakingsat hearing application first respondent proffered following undertaking order varied slightly course interlocutory hearing upon first respondent counsel undertaking interview second applicant part investigation agreed time place 5 00pm monday 15 august 2011 b allow second applicant one support person choosing interview referred subparagraph c finalise investigation notify applicant outcome investigation 11 00am thursday 18 august 2011 implement apply disciplinary outcome investigation 2 00pm friday 19 august 2011 e event 2 00pm friday 19 august 2011 applicant either file serve interlocutory application restrain implementation application disciplinary outcome investigation whether servant agent implement apply disciplinary outcome hearing determination interlocutory application upon second applicant counsel undertaking f agree time place participate interview referred subparagraph accordance subparagraph court order application interlocutory relief dismissed 4 00pm friday 9 september 20111 applicant file serve statement claim 4 00pm friday 7 october 2011 respondent file serve defence 4 00pm friday 21 october 2011 applicant file serve reply matter listed direction onnovember 2011 party liberty apply short notice cost reserved relevant legal principlessection 340 act relevantly state 1 person must take adverse action another person person workplace right ii exercised workplace right iii proposes proposes time proposed proposed exercise workplace right b prevent exercise workplace right person note subsection civil remedy provision see part 4 1 section 341 act provides inter alia person workplace right entitled benefit role responsibility workplace law workplace instrument order made industrial body s341 1 section 12 act defines workplace law include law commonwealth state territory regulates relationship employer employee including dealing occupational health safety matter section 342 act defines adverse action include item 1 employer taking action employee dismissing employee injuring employee employment altering position employee employee prejudice discriminating employee employee employer inpatrick stevedore operation 2 pty ltd or v mua 1998 hca 30 1998 195 clr 1 patrick 18 high court construed similar provision theworkplace relation act 1996 cth preceded act follows paragraph cover termination employment par b cover injury compensable kind par c broad category cover legal injury adverse affection deterioration advantage enjoyed employee conduct question interpretation applied full federal court incpsu v telstra corporation ltd 2001 fca 267 2001 107 fcr 93 telstra 100 prejudicial alteration inpatrickswas reduction security employment resulting corporate organisation intelstra email sent managing director employee relation group manager inter alia directed manager support value company preferred model individual employment implementing initiative leading staff reduction held 100 101 make employment employee award certified agreement le secure even though action taken result email section 550 act provides person involved contravention civil remedy provision inter alia aided abetted counselled procured contravention way act omission directly indirectly knowingly concerned party contravention section 361of act provides reverse onus proof alleged person took action particular reason particular intent contravention part act includess 340 however reverse onus apply relation order interim injunction 361 2 court power action set 545 act including interim injunction 545 2 principle relevant grant interlocutory injunction summarised collier j injones v queensland tertiary admission centre ltd 2009 190 ir 218 jones 220 follows gleeson cj crennan j observed inaustralian broadcasting corporation v neill 2006 hca 46 2006 227 clr 57at 19 application interlocutory injunction court ask whether plaintiff shown serious question tried plaintiff entitlement relief andthe plaintiff likely suffer injury damage adequate remedy andthe balance convenience favour granting interlocutory injunction honour observed organising principle applied regard nature circumstance case issue justice convenience addressed 19 party principal submissionsthe applicant alleged strongprima faciecase visy taken adverse action mr zwart contravention ofs 340 1 act undertaking investigation suspending albeit full pay exercised workplace right conduct tagging halting forklift oh act workplace law imposes duty employee take reasonable care health safety others irrelevant whether mr zwart acted capacity hsr ordinary employee applicant submitted balance convenience strength theirprima faciecase relevant supported grant interlocutory relief first respondent dispute applicant standing sue item 11 table 539 540 act conceded serious question tried submitted weak thereby tipped balance convenience favour first respondent submitted context unclear whether mr zwart exercised workplace right nature apparently basis mr zwart alleged comment acted concerned employee discussionwhether serious question mr zwart workplace rightas applicant submitted oh act employer employee responsibility provide safe place work 21 25 employee required pursuant 25 take reasonable care safety person may affected employee act omission workplace failure offence maximum penalty 1800 penalty unit equates 219 852 00 122 14 per unit therefore appeared tagging halting operation relevant forklift mr zwart acted maintain safety avert danger irrespective whether acted capacity hsr ordinary employee would entitlement benefit role responsibility workplace law thus workplace right whether serious question visy took adverse actionfurther satisfied commencement investigation allegation serious misconduct suspending mr zwart work albeit full pay arguably amounted adverse action within term act inkimpton v minister education victoria 1996 65 ir 317 319 north j stated regard hopeless untenable contend requirement participate investigatory process may amount relevant injury prejudicial alteration say force argument put dr jessup argument however resolved trial proceeding matter determined comprehensive argument light evidence available trial inunited firefighter union australia v metropolitan fire emergency service board 2003 fca 480 2003 198 alr 466 employee submitted laying disciplinary charge relation inter alia refusal remove offensive sign inappropriate usage email system physical violence another firefighter prohibited 298k 1 theworkplace relation act 1996 cth sought interlocutory injunction goldberg j stated 491 although laying charge hearing result permanent injury employee alteration employee position consider arguable expose employee potentially range penalty specified relevant legislation satisfied serious question tried virtue laying hearing charge position employee altered prejudice exposed potential disadvantage imposition penalty charge ultimately proven goldberg j stated 490 satisfied serious question tried integer contravention 298k laying charge imposes burden person charged respond allegation relating conduct employee board consider one separate effect consequence charge fact occurred employee employment board accept person charged affected employment charge proven laying charge expose employee board potential disadvantage employment charge ultimately proven contrast inpolice federation australia v nixon 2008 fca 467 2008 168 fcr 340 nixon ryan j consider resumption investigation certain allegation senior police officer amounted alteration officer position alteration context required substantive change reduction advantage enjoyed employee capacity ryan j stated 355 merely subject disciplinary inquiry investigation without constitute substantive change innixon ryan j stated 355 consider respect amenability disciplinary charge brought good faith properprima facieevidentiary basis normal incident employment laying charge constitute adverse affection deterioration advantage enjoyed employee sense used high court passage frompatrick stevedore injones collier j granted interlocutory relief restraining employer taking action applicant employee including termination employment hearing employee substantive application inter alia s 340and 545 act alleged employer taken adverse action injuring employment including commencing disciplinary investigation without reasonable adequate cause collier j held serious question tried sufficient likelihood applicant would successfully establish claim adverse action taken proposed taken breach act due participation enterprise agreement negotiation workplace right honour stated 226 persuaded commencement investigation allegation m jones commissioning carol watson report arguably constituted adverse action purpose fw act injones collier j also held aprima faciecase investigation constituted adverse action albeit established good faith employer commissioned third party report complaint allegation applicant including anonymous complaint investigation made known staff albeit applicant specifically identified publicity capable damaging reputation standing organisation applicant dismissal threatened adverse action applicant injoneswas employee year standing played role enterprise agreement negotiation timing allegation contemporaneous participation therein authority entirely consistent thus indicate investigation may necessarily constitute adverse action depending circumstance case example disciplinary investigation result penalty disadvantage without notice step charge brought good faith entail substantive change reduction advantage enjoyed relevant capacity publicised employer le likely amount adverse action present case visy characterised investigation mr zwart subject factual nature rather disciplinary assertion contrary suggestion visy letter 8 august 2011 immediate dismissal may result visy letter dated 10 august 2011 implicitly retracted prospect material filed submission made undertaking proffered visy hearing clear investigation result direct immediate consequence mr zwart dismissal would occur deemed appropriate following disciplinary investigation mr zwart afforded opportunity respond mr zwart nevertheless employee long standing engaged role hsr allegation led investigation suspension arose direct relation contemporaneously conduct relation safety equipment although nature conduct disputed allegation extend conduct prior incident mr zwart deposed suspension although full pay apparent workplace emotionally upsetting capable damaging standing reputation therefore satisfied applicant substantialprima faciecase raised serious question tried whether visy took adverse action mr zwart contravention act whether balance convenience favour grant interlocutory reliefit however necessary address balance convenience contrary first respondent submission applicant prima faciecase view weak thereby requiring compelling case relation balance convenience mr zwart vulnerable immediate dismissal irreversible detriment without notice subject disciplinary investigation long indefinite duration suspended without pay matter would alone combination tend weigh favour interlocutory relief nevertheless balance convenience affected first respondent proffered undertaking promptly offer mr zwart interview conclude factual investigation determine outcome one week refrain implementing outcome determination resultant interlocutory application applicant first respondent undertake terminate either investigation mr zwart suspension undertaking predicated mr zwart undertaking attend interview mr zwart unwilling undertake unless suspension terminated permitted return work pending completion investigation sole issue ultimately dispute interlocutory hearing thus mr zwart continued suspension full pay applicant submitted context even interlocutory stage court conclude investigation actuated ulterior purpose mr zwart suspension warranted matter alleged letter 8 august 2011 vague satisfy requirement procedural fairness allegation serious misconduct contained visy performance management policy visy letter 8 august 2011 thus contain serious allegation substantive sense applicant submission matter referred mr scott affidavit extracted 39 detailed letter 8 august 2011 spurious weak lacking substance thereby indicating standing employee even full pay drastic unwarranted overreaction substance supported company promulgated policy mr zwart fellow employee would suffer detriment result suspension hsr officer whose presence promoted safety arguably legal requirement 54 oh act first respondent conceding weakprima faciecase submitted balance convenience favour grant relief granted would tantamount final relief investigation suspension mr zwart would delayed trial may conclude many month time factual investigation antecedent wider resultant disciplinary investigation would stale although also related series alleged unreported near miss potentially posing danger employee others thus required prompt investigation injunction sought also mandatory character taken account final form undertaking offered first respondent interview mr zwart would participate would occur promptly tuesday 16 august 2011 mr zwart could supported person choice investigation would finalised thursday 18 august 2011 first respondent would implement apply disciplinary outcome investigation monday 22 august 2011 applicant filed application restrain implementation outcome first respondent would implement apply outcome interlocutory application determined first respondent advanced evidence yet untested fact supported factual investigation good faith wider goal investigating conduct mr zwart including safety others also evidence stand full pay investigation allegation serious misconduct normal procedure employed visy order inter alia insulate person investigated circumstance application invocation procedure particularly brief period require elaborate justification mr scott event deposed aspect mr zwart conduct indicated presence could disrupt investigatory process mr scott also deposed measure sufficiently addressed safety issue workplace mr zwart absence workplace persuaded presence necessary comply 54 oh act applicant complaint vagueness allegation visy letter 8 august 2011 view well founded although clarified material filed proceeding mr zwart deposed accept suspension stressful could affect standing workplace generally known albeit mr scott maintained first respondent publicise fact however light undertaking offered first respondent detriment mr zwart would short lived within matter day investigation completed would left uncertainty long indefinite period would outcome implemented penalty imposed investigation complete opportunity respond challenge court accordingly although mr zwart declined undertake attend interview proposed first respondent considered appropriate dismiss application interlocutory relief first respondent giving undertaking referred certify preceding eighty five 85 numbered paragraph true copy reason judgment herein honourable justice dodds streeton associate dated 12 august 2011
Spencer v Valuer General and Ors [2009] NSWLEC 128 (16 June 2009).txt	spencer v valuer general or 2009 nswlec 128 16 june 2009 last updated 5 august 2009new south wale land environment courtcitation spencer v valuer general or 2009 nswlec 128parties applicantpeter james spencerfirst respondentvaluer generalsecond respondentlocal government shire associationthird respondentcooma monaro shire councilfile number 31341 200831342 200831343 2008catchwords practice procedure party joinder person additional respondent statutory appeal order sought person could made court relate statutory appeal joinder person respondent improper proceeding struck respondentspractice procedure strike claim strike order sought originating process statutory appeal order sought could made court relate statutory appeallegislation cited land environment court act 19bvaluation land act 1916ss 37 40coram preston cjdates hearing 16 june 2009ex tempore date 16 june 2009legal representativesapplicantmr e maroya barrister solicitorsmckell solicitorsfirst respondentmr p e rankin solicitor second respondentmr j e lazarus barrister solicitorslocal government shire association new south walesthird respondentms c webster barrister solicitorswalker gibbs king pty ltdjudgment land andenvironment courtof new south walespreston cj16 june 200931341 200931342 200931343 2009peter james spencer v valuer general orsjudgment1his honour proceeding 31341 31342 31343 2008 applicant mr spencer commenced three appeal respect three property unders 37 1 thevaluation land act 1916objecting determination valuer general valuation property right appeal assigned 19b theland environment court act 1979to class 3 court jurisdiction 2 nature appeal circumscribed act power court appeal particular power court limited matter set in 40 1 thevaluation land act 1916 3 applicant mr spencer joined respondent valuer general course proper respondent appeal unders 37 1 also person person local government shire association second respondent cooma monaro shire council third respondent fact body known local government shire association two separate body local government association new south wale shire association new south wale presumably mr spencer intended refer body conflated two organisation one 4 class 3 application commence appeal unders 37 1 thevaluation land act mr spencer set order sought one order ten number sought relief term matter court could properly make unders 40of thevaluation land act matter extraneous thevaluation land act 5 second third respondent notice motion amended subsequently seek order court proceeding dismissed cost notice motion fixed hearing today 6 mr maroya counsel appeared mr spencer instructed seek adjournment notice motion period two week order obtain proper instruction affidavit read mr spencer explained circumstance led unable properly brief mr maroya preparation defending notice motion however indicated upon looking notice motion class 3 application filed mr spencer really ground resisting order sought second third respondent hence agree adjournment would merely postpone inevitable incur cost cost course may properly fall mr spencer 7 issue whether order sought could properly made appeal governed bys 37 1 explored counsel party submission self evident upon inspection ten order sought class 3 application none order could properly made court unders 40and none relate nature thevaluation land actappeal unders 37 1 circumstance joinder second third respondent improper notice motion seeking dismissal proceeding second third respondent ought upheld 8 reason propose dismiss proceeding three matter second third respondent furthermore particular ten order sought class 3 application struck applicant may proper claim unders 37 1 however necessary applicant amend class 3 application seek order appropriate nature appeal unders 37 1 within court power hearing determining appeal unders 40of thevaluation land act propose grant applicant leave amend application seek appropriate order 9 would need consequential order relation filing amended application putting matter list evident although proceeding commenced 22 december 2008 proper preparation undertaken regard nature appeal thevaluation land act provided copy court practice note class 3 valuation objection appeal party used applicant prepare matter hearing first step make appropriate order referred first direction hearing propose set time occur applicant valuer general undertake preparation required practice note anticipation court make usual direction made first direction hearing occasion fix 10 relation cost although class 3 proceeding cost order ordinarily made unless fair reasonable circumstance make cost order fact joinder second third respondent prospect success regard order sought fact wholly outside scope appeal unders 37of thevaluation land act make appropriate order cost case second third respondent put expense could reasonably expected put proper party order sought within jurisdiction appeal unders 37of thevaluation land act 11 circumstance fair reasonable make order cost although second third respondent request indemnity cost minded make order indemnity cost misguided applicant however without legal advice time thing occur people commence proceeding without seeking proper advice regard fact matter brought second third respondent court remedy wrongful joinder promptly consider higher level cost ordinary level cost ordered 12 reason propose make following order matter number 31341 31342 31343 2008 order proceeding second third respondent dismissed strike order 1 10 application class 3 filed 22 december 2008 grant leave applicant amend application class 3 seek order appropriate appeal unders 37 1 thevaluation land act 1916and within court power unders 40 1 thevaluation land act 1916 direct applicant file serve amended application class 3 4pm 23 june 2009 list matter list judge 26 june 2009 purpose fixing hearing date making appropriate direction preparation proceeding hearing direct party prepare direction hearing 26 june 2009 first direction hearing accordance practice note class 3 valuation objection order applicant pay cost second third respondent proceeding
Transport Workers' Union of Australia v Linfox Australia Pty Ltd [2014] FWC 4188 (16 December 2014).txt	transport worker union australia v linfox australia pty ltd 2014 fwc 4188 16 december 2014 2014 fwc 4188 note appeal pursuant 604 c2014 6944 lodged decision refer full bench decision dated 19 december 2014 2014 fwcfb 9302 result appeal fair work commissiondecisionfair work act 2009s 739 dispute resolutiontransport worker union australiavlinfox australia pty ltd c2013 7309 commissioner robertssydney 3 october 2014application pursuant tos 739 determination correct application shift work provision jurisdictional objection dismissed determination made 1 decision concern application made transport worker union australia twu union 20 november 2013 pursuant tos 739of thefair work act 2009 act fair work commission deal dispute linfox australia pty ltd linfox company dispute referred commission pursuant clause 22 settlement dispute procedure thelinfox road transport distribution centre national enterprise agreement 2011 2011 agreement since dispute lodged 2011 agreement superseded thelinfox transport worker union road transport distribution centre agreement 2014 2014 agreement clause 22 2011 agreement provides step followed dispute arises matter covered agreement clause ultimately provides subclause e dispute cannot resolved party conciliation conducted commission commission may proceed arbitrate dispute otherwise determine right obligation party dispute party 2011 agreement linfox twu 2 clause 6 relationship agreement 2011 agreement state agreement operates place award including modern award agreement whether certified approved relevant modern award road transport distribution award 2010 award 3 unsuccessful conciliation conducted commissioner cargill case came arbitration request twu mention programming hearing held 16 april 2014 direction issued day filing service outline submission witness statement material matter proceeded hearing sydney 29 may 2014 hearing twu represented mr warnes mr g rodger linfox represented permission mr baroni mccabes lawyer dispute 4 twu submits linfox correctly applying term clause 51 shift work 2011 agreement specifically subclause 51 3 shift work allowance subclause read follows ordinary hour shift work shift worker shall paid following extra percentage rate prescribed respective classification early morning shift 12 5 b afternoon shift 17 5 c night shift 30 5 clause 49 3 2014 agreement provision clause 51 3 2011 agreement 6 form f10 twu characterised dispute following term linfox employ number driver depot sydney newcastle perform driving duty delivering dairy product parmalat servicing parmalat contract driver rostered perform work regular systematic basis outside span hour attendance rostered time compulsory applicant contends rostered work nature attracts shift penalty respondent nonsensically applicant view appears rely letter employment state start time within span hour based letter reflect reality start time pay overtime hour worked outside span hour effect essentially nugatory driver generally performing shift excess 10 hour e overtime simply paid start shift rather hour 7 6 8 hour elapsed effect therefore failure pay shift allowance reduce earnings driver ordinary hour shift allowance applicant alleges owed corresponding entitlement shift work paid crib break also lost underpayment substantial ordinary earnings underpaid 12 5 17 5 7 union asserts allegedly incorrect application clause 51 2011 agreement linfox occurred period year 8 question posed twu determination circumstance clause 51 2011 agreement apply driver begin shift within specification set clause 51 2011 agreement entitled shift allowance benefit flow work nature jurisdictional objection 9 linfox raised jurisdictional objection prior hearing 29 may 2014 brief linfox argued twu application beyond jurisdiction sought commission make declaration right obligation party agreement would involve exercise judicial power linfox submitted posing question fwc answer akin seeking declaration court 10 supporting oral submission mr baroni characterised dispute party alleged underpayment 1mr baroni went say meant commission would unable resolve dispute party totality commission lack jurisdiction deal underpayment 11 twu opposed jurisdictional objection paid regard argument put mr warnes 12 unable agree mr baroni power commission posse matter section 739of act clearly enlivened term agreement doubt dispute exists party proper application clause 51 3 2011 agreement find within power determine correct application clause 51 3 2011 agreement noted hearing jurisdiction quite clear tell think people tell think wrong jurisdiction enlivened agreement pursuant tosection 739to determine believe correct application agreement posse power make consequential order relation determination usual practice member commission determines correct application unless loser speak appeal matter way usual practice mean order order 2 13 view adopt mr baroni argument commission empowered deal dispute able resolve dispute totality empowered cannot fundamentally flawed adopt argument put forward linfox would make operation ofs 739of act nugatory role determine correct application agreement propose 14 move consider merit twu application written submissionsthe twu 15 twu filed written outline submissions3 submission argued become entitled shift allowance worker must first classified shiftworker clause 51 2 agreement defines shiftwork work extending least four week performed either daily recurrent period regular rotating period within limit defined early morning shift afternoon shift night shift effect 2011 agreement incorporated award term award clause 24 1 24 3 apply clause 51 2 51 3 apply lieu word used 2011 agreement respect uncontroversial unambiguous therefore work performed 4 week longer within time specified clause 51 2 b c shiftwork attracts allowance contained clause 51 3 time worked shift sought commission determination circumstance shift allowance payable worker covered 2011 agreement 16 wording clause 51 abundantly clear work extends least four week ii daily recurrent period regular rotating period andiii fall within definition shift clause 51 2 thenit shiftwork logically follows worker performs shiftwork shiftworker therefore permissible classify work performed commencement ordinary hour pre shift overtime work fall within ambit clause 51 agreement case work overtime rather shiftwork clearly fall within definition 2011 agreement attracts applicable shift allowance 17 submission twu sought following determination commission wording clause 51 2011 agreement unambiguous capable meaning conveyed twu ii work performed within bound clause 51 2011 agreement shiftwork payable relevant allowance clause 51 3 iii permissible 2011 agreement avoid paying shift allowance simply paying time worked start ordinary hour overtime accordance clause 27 award incorporated 2011 agreement linfox 18 linfox also filed written outline submission prior hearing4 submission linfox provided detailed analysis view relevant provision 2011 agreement correlation award vice versa respondent submits award 2011 agreement contains span hour employee cannot said work shift work fixed start time commence work within fixed start time span hour additional work outside ordinary hour paid overtime rate appears precedent treating group employee shift worker group hour work fixed within defined spread ordinary hour day work part integrated roster shift attract shift loading practical purpose day worker provision award 2011 agreement would rendered superfluous applicant interpretation 19 submission went argue award 2011 agreement contemplated would employee working day shift day work performing shift work oral submissionsthe twu 20 supporting oral submission mr warnes said term award majorly incorporated enterprise agreement 5 something catered enterprise agreement award applies 6he went say 2011 agreement provides absolutely guidance meaning day worker purpose enterprise agreement 7in part discussion mr warnes agreed despite lack definition day worker could assumed day worker work ordinary hour 8however clear unambiguous definition shift worker clause 51 2 agreement submission conclusion drawn worker shift worker day worker 9 21 asked mr warnes following question argument consistent rostered overtime pre post shift fit four week provision change status employee day worker shift worker attracts penalty replied make work shift work absolutely commissioner work going four week fall within one definition shift shift work agreement nature work fundamentally changed 10 22 mr warnes went say clause 27 overtime award incorporated enterprise agreement apply common term agreement shift allowance term 11 23 mr warnes maintained overtime time paid end ordinary hour 12it cannot worked commencement ordinary hour regard asked mr warnes saying fundamental core position appears work pre shift overtime period defined agreement least four week without turning shift worker entire shift mr warnes said absolutely commissioner yes 13linfox 24 mr baroni also made supporting oral submission said readily concede shift worker entitled paid shift allowance irrespective shift working word depending shift work entitled paid shift allowance 14he continued say somebody work overtime context shift worker day worker entitled paid overtime applicable rate 15 25 mr baroni went say become shift worker asked become shift worker employer give notice accordance relevant provision award agreement want become shift worker 16if employee given notice overtime payable 26 nothing award incorporated agreement prohibits working overtime pre post ordinary hour simply case one look clause 24 5 award shift work provision actually contemplates overtime contemplates overtime worked outside ordinary shift hour concept based ordinary hour 38 hour per week concept nothing novel nothing remarkable whether shift worker day worker full time equivalent entitled minimum 38 hour per week 17 27 mr baroni went say nothing prohibit linfox asking employee come commencement ordinary hour work beyond finish ordinary hour acquires obligation pay overtime case went say employee decline overtime 18conclusions determination 28 reaching conclusion determination paid full regard submission material case law put proceeding together subsequent written submission 29 2011 agreement view masterpiece clear drafting virtue ofpart c incorporated term large range provision instrument incorporated agreement significant number change caveat exclusion variation despite provision clause 6 see paragraph 2 also reference back award several clause 2011 agreement clause 80 application subclause 2 l specifically relevant decision read follows l term modern award including allowance except following provision relate certain allowance expense incorporated agreement subclause 16 1 b ii road transport award incorporated employee covered thelinfox new south wale boc agreement 2009 ii subclause 16 1 b v road transport award incorporated employee iii subclause 16 1 road transport award incorporated employee covered thelinfox new south wale boc agreement 2009 iv subclause 16 1 f road transport award incorporated employee v subclause 16 3 road transport award incorporated employee vi subclause 14 1 road transport long distance award incorporated employee covered thelinfox new south wale boc agreement 2009 vii subclause 14 2 road transport long distance award incorporated employee subclause 12 6 road transport award amended provided clause 36 agreement employee 30 case apparent clause 27 award imported 2011 agreement clause 27 1 read follows 27 1for work done outside ordinary hour rate pay time half first two hour double time thereafter double time continue completion overtime work 31 twu maintained overtime worked end ordinary hour ordinary hour commence see paragraph 23 determination nothing clause 27 award elsewhere precludes working pre shift overtime 32 union argued clear definition day work day worker 2011 agreement typically labyrinthine structure agreement provide definition however clause 50 hour employment incorporates clause 22 award except provide ordinary hour work must worked hour 5 6 pm clause 22 award provides slightly different spread hour difference award 2011 agreement regard relevant decision making 33 given term clause 50 2011 agreement logical deduce class person regarded day worker work ordinary hour 5 6 pm clause 51 shift work 2011 agreement provide subclause 51 2 definition clear definition constitutes shift work say 51 2 definition early morning shift shall mean shift commences 4 00 5 00 b afternoon shift shall mean shift commences 10 00 4 00 p c night shift shall mean shift commences 4 00 p 4 00 shift work shall mean work extending least four week performed either daily recurrent period regular rotating period within limit defined early morning shift afternoon shift night shift 34 clause 51 go set shift allowance loading three type shift work see paragraph 4 35 therefore consider two class employee day worker shift worker twu claim day worker work pre shift overtime becomes shift worker therefore entitled shift allowance overtime hour meet definition clause 51 2 36 unable agree twu position view day worker work pre shift post shift overtime remains day worker properly compensated payment overtime rate worker commences shift ordinary hour commence commencing pre shift overtime similarly shift worker performs either pre shift post shift overtime outside ordinary rostered hour would entitled payment overtime rate 37 accordingly determine linfox correctly applying relevant term agreement twu application dismissed 38 making decision needed recourse decision justice tracey published 8 august 2014 intransport worker union australia v linfox australia pty ltd19 decision referred party proceeding concluded 29 may 2014 commissionerappearances warneswithr burkefor transport worker union australia baronifor linfox australia pty ltd hearing detail 2014 sydney may 29 final written submission 13 august 2014 var _gaq _gaq _gaq push _setaccount ua 9592794 1 _gaq push _trackpageview function var ga document createelement script ga type text javascript ga async true ga src http document location protocol http ssl http www google analytics com ga j var document getelementsbytagname script 0 parentnode insertbefore ga 1transcript pn48 following 2transcript pn14 3exhibit twu 1 4exhibit linfox 1 5transcript pn191 6transcript pn205 7transcript pn224 8transcript pn242 9ibid 10transcript pns266 267 11transcript pn296 12transcript pn309 13transcript pns378 379 14transcript pn417 15transcript pn419 16transcript pn421 17transcript pn441 18transcript pns463 465 19 2014 fca 829 printed authority commonwealth government printer price code c pr552369
1214913 [2013] MRTA 2142 (28 August 2013).txt	1214913 2013 mrta 2142 28 august 2013 last updated 18 september 20131214913 2013 mrta 2142 28 august 2013 decision recordapplicant miss hye jin kangmrt case number 1214913diac reference clf2012 188792tribunal member belinda mericourtdate 28 august 2013place decision sydneydecision tribunal affirms decision grant applicant child residence class bt visa statement decision reasonsapplication reviewthis application review decision made delegate minister immigration refuse grant visa applicant child residence class bt visa unders 65of themigration act 1958 act visa applicant applied department immigration visa 12 september 2012 delegate refused grant visa 13 september 2012 basis cl 837 212 schedule 2 themigration regulation 1994 regulation satisfied applicant hold substantive visa time application made application within 12 month cessation substantive visa 27 september 2012 review applicant applied tribunal review delegate decision relevant lawat time visa application lodged child residence class bt visa contained subclass 802 child subclass 837 orphan relative item 1108a schedule 1 regulation subclass respect claim advanced subclass 837 orphan relative orphan relative visa relative australian citizen australian permanent resident eligible new zealand citizen 18 unmarried whose parent either dead otherwise unable care criterion subclass 837 visa set inpart 837of schedule 2 regulation primary criterion require time application applicant must either hold substantive visa subclass 771 transit visa satisfy schedule 3 criterion 3002 cl 837 212 case applicant refused substantive visa visa cancelled last entering australia must become orphan relative since last substantive visa application eligible grant subclass 837 visa cl 837 211 requirement time application applicant either orphan relative australian citizen australian permanent resident eligible new zealand citizen person orphan relative applicant adopted australian relative cl 837 213 regulation also require applicant sponsored time application australian relative australian relative spouse de facto partner sponsor must turned 18 must settled australian citizen settled australian permanent resident settled eligible new zealand citizen spouse de facto partner sponsoring must cohabit australian relative cl 837 214 issue present case whether applicant held substantive visa time application whether meet definition orphan relative whether sponsored time application australian relative claim evidencethe tribunal department file relating applicant tribunal also regard material referred delegate decision material available range source applicant born october 1988 south korea citizen south korea sibling entered australia january 2000 aged 11 year dependent parent granted visitor subclass 976 visa granted student visa 2 june 2000 parent granted temporary work skilled visa subclass 457 30 december 2000 ceased 5 december 2002 date parent applicant became unlawful non citizen residing australia 12 september 2012 applicant applied orphan relative visa bridging visa visa refused department applicant migration agent lodged application review mrt stating applicant fully understood review application would succeed still wanted apply mrt review could apply ministerial intervention attached signed statement applicant effect 12 october 2012 applicant applied bridging visa c bvc seeking permission work whilst matter waiting migration review tribunal make decision applicant migration agent made submission department applicant fault became unlawful noncitizen occurred still child grown educated spent majority formative year australia social cultural tie employment base australia applicant longer lived parent living saving debt experiencing severe financial hardship 16 august 2013 tribunal contacted review applicant agent advising considered material relating application unable make favourable decision information alone asked whether applicant wished proceed hearing 16 august 2013 applicant migration agent advised tribunal applicant wish give oral evidence application solely purpose enabling applicant apply ministerial intervention requested hearing purpose making submission tribunal referral ministerial intervention tribunal hearingtheapplicant appeared tribunal 28 august 2013 give evidence present argument represented registered migration agent applicant told tribunal became aware relevant visa grade 9 10 age 15 year living cousin house parent school principal requested passport unable provide passport visa discussed situation principal allowed continue study applicant told tribunal moved cousin house parent needed work make money aware legal status contact talk lived since 15 year old applicant applied university considered going back korea confident returning since 11 year old said approached lawyer advised continue study without anything visa status completed university told uac australian resident undertook three year degree japanese chinese language took five year complete needed earn money support whilst studying commenced 2007 finished end 2011 tutoring casual basis period since completing university seeking job either travel consultant youth counsellor told tribunal sick lying job interview could prove australian resident sought advice agent advised apply orphan relative visa age 25 year visa could apply onshore type application could make protection claim protection applied 2012 graduated wanted permanent residency able work legally applicant told tribunal requesting tribunal refer case ministerial intervention lived australia 13 year social cultural tie career opportunity australia returned korea period friend near relative korea maternal grandparent deceased paternal grandparent reside australia aunt cousin australia parent australia sibling applicant migration agent told tribunal done independent research found korean deported u could speak korean well discriminated marginalised many easily became criminalised ended jail korean society homogeneous difficult anyone perceived different objectively speaking could significant risk applicant return korea spent much formative year australia social family cultural tie korea applicant migration agent told tribunal applicant would unable lodge application skilled visa offshore obtained australian degree whilst holder student visa advised would precluded applying offshore business visa period time unlawful non citizen finding reasonsthe visa application made order seek ministerial intervention based evidence tribunal find applicant holder substantive visa time application schedule 3 criterion 3002 requires application validly made within 12 month relevant day within meaning subclause 3001 2 mean application could validly made 5 december 2003 however application made 2012 meet requirement schedule 3 criterion 3002 tribunal therefore find applicant meet requirement cl 837 212 tribunal find applicant last substantive visa ceased 5 december 2002 time 14 year old tribunal satisfied unaware status unlawful non citizen date visa ceased cl 837 213 requires applicant orphan relative defined r 1 14 australian relative orphan relative adopted person applicant parent currently unlawful non resident australia stated longer associated although contact initiate contact applicant become orphan relative since last substantive visa application therefore meet requirement cl 837 211 given finding tribunal concludes time application applicant orphan relative australian relative accordingly tribunal find applicant satisfy cl 837 213 clause 837 214 requires applicant sponsored relevant australian relative relative spouse de facto partner applicant nominated sponsor settled australian citizen permanent resident eligible new zealand citizen accordingly applicant satisfy cl 837 214 respect visa subclass material suggests applicant meet prescribed criterion visa sought applicant nominated sponsor required child subclass 802 visa request ministerial interventionthe applicant requested tribunal refer case department consideration minister pursuant 351 give minister discretion substitute decision tribunal another decision favourable applicant minister think public interest applicant migration agent provided submission tribunal hearing summary agent requested referral ministerial intervention ground applicant minor came australia lived 13 year became unlawful non citizen 2003 result parent 457 visa cancellation bachelor art science degree university sydney majoring chinese japanese language unmarried living separately parent applicant innocent illegal fault became unlawful non citizen still minor spent half formative year australia value system cultural social base formed australia close tie australia social cultural career foundation therefore forcing leave australia would amount deprivation life base would cruel bear applicant graduate university sydney majoring major asian language doubt asset australia coming year may face real enormous risk returned south korea people similar situation forced return south korea overseas visa problem easily marginalised alienated criminalised discriminative homogenous south korean society tribunal accepts applicant minor time became unlawful non citizen situation control applicant told tribunal became aware visa status age 15 year tribunal accepts minor difficult rectify situation time however graduated high school turned 18 year opportunity rectify situation told tribunal sought legal advice told proceed study inform department uac visa status told tribunal deliberately misled uac stated australian resident application form studied worked fully aware unlawful non citizen next five year tribunal considered applicant case ministerial guideline relating discretionary power set pam3 minister guideline ministerial power s345 s351 s391 s417 s454 s501j guideline state case brought attention minister public interest may served australian government responding care compassion individual situation involves unique exceptional circumstance minister determine whether matter public interest assessing whether case involves unique exceptional circumstance factor may relevant individually cumulatively include limited particular circumstance personal characteristic person provide sound basis believing significant threat personal security human right human dignity return country origin circumstance legislation anticipate clearly unintended consequence legislation circumstance application relevant legislation lead unfair unreasonable result particular case circumstance exceptional economic scientific cultural benefit australia would result visa applicant permitted remain australia length time person present australia level integration australian community compassionate circumstance regarding age health psychological state person failure recognise would result irreparable harm continuing hardship person department determined person circumstance outside control unable returned country citizenship relevant information may considered assessment case involving unique exceptional circumstance include degree person failed comply condition visa tribunal regard length time applicant resided australia integration australian community tribunal also regard possibility applicant would suffer adverse psychological consequence returned korea tribunal noted applicant misled department various australian institution visa status period five year turned 18 year balance tribunal consider applicant situation exceptional unique warrant referral minister decided refer matter tribunal note applicant still make request directly minister conclusionsfor reason given tribunal find applicant satisfy requirement cl 837 211 cl 837 212 cl 837 213 cl 837 214 decisionthe tribunal affirms decision grant applicant child residence class bt visa belinda mericourt 28 august 2013member
O'Sullivan v Barker J A Judge of the Federal Court of Australia & Ors [2017] HCATrans 222 (3 November 2017).txt	sullivan v barker j judge federal court australia or 2017 hcatrans 222 3 november 2017 last updated 7 november 2017 2017 hcatrans 222in high court australiaoffice registryperth p38 2017b e w e e n michael sullivanplaintiffandbarker j judge federal court australiafirst defendantmckerracher j judge federal court australiasecond defendantp maritime service pty ltdthird defendantgordon jtranscript proceedingsfrom melbourne video link perthon friday 3 november 2017 11 30 amcopyright high court australiamr sullivanappeared person honour thank application order show cause front mr sullivan yes correct honour read affidavit filed augustof year well outline submission summons mr sullivan yes correct honour anything else wish say set submission mr sullivan would like say applying today get decision set aside section 44 theadministrativeappeals actlimits right appeal question law decision tribunal honour yes mr sullivan asking court today set two decision aside honour justice barker honour justice mckerracher honour okay think justice mckerracher andbarker might explained heard apologise think important explain reason refused application question entitlement claim p finally determined still heard administrative appeal tribunal read file decide preliminary question final question still go back tribunal even prove tribunal injury fresh injury injury exists result employment p first time round still live issue tribunal understand mr sullivan yes understand whole point question iswhether justice mckerracher barker jurisdiction whatsoever even entertain appeal honour understand mr sullivan 29 decision 29 point justice mckerracher made without file front le agreed tribunal highly prejudiced case go back tribunal saying never jurisdiction first place section 44 proper question law honour right mr sullivan half decision honour right mr sullivan leaf without jurisdiction made order 29th made order respondent put submission without jurisdiction cannot make order think seen somewhere warning judge high court website make order got jurisdiction saying jurisdiction first place 29 point made decision highly prejudicial case agreeing tribunal authority make 29 decision never file front think jurisdiction honour right read submission mr sullivan thank honour anything else wish say mr sullivan think leave time honour right thank much mr sullivan let make decision honour right well propose go away think matter publish little judgment judgment address matter raised consider application notified judgment going handed necessary appear understand mr sullivan yes honour thank much mr sullivan would like say one point honour yes please mr sullivan justice mckerracher decision paragraph 23 decision honour yes mr sullivan relates paragraph say try find honour set ground submission paragraph want look mr sullivan yes honour yes mr sullivan say something along line whether feasible eat fish lunch today something something along line replied something chicken egg something like got front honour read paragraph mr sullivan okay well whether feasible eat fish lunch day whatever say original saying come case quoted respondent submission frompalassis v commissioner taxation replied respondent submission case quoted respondent submission replied basis written inpalassis v commissioner taxation mckerracher honour meanharitos sorry mr sullivan want make sure referring toharitos v federal commissioner taxation mr sullivan referring topalassis v commissioner taxation honour citation give mr sullivan justice mckerracher done case citation bc201108697 honour medium neutral number year fca number usually heading name party number year mr sullivan wad 46 2011 honour yes mr sullivan wad 47 2011 48 8 june 15 november 2011 palassis v commissioner taxation honour right look thank much mr sullivan trying say original saying mckerracher decision replied submission written decision paragraph decision refer topalassis author make look bit silly honour right understand submission mr sullivan put case cited case decision honour thank mr sullivan thank think understand talking honour understand completely anything else sir mr sullivan thank much honour anything else wish put mr sullivan think leave decision think honour right said stand go away think write judgment mr sullivan yes honour notified judgment handed necessary appear copy judgment sent mr sullivan would timeframe regard honour know answer would long depends upon workload court staff notify soon handed mr sullivan thank would like take regard two decision highly prejudicial case refers back tribunal asking set aside honour thank much adjourn court mr sullivan thank 11 40 matter concluded
Indra v Monash CC [2008] VCAT 710 (24 April 2008).txt	indra v monash cc 2008 vcat 710 24 april 2008 last updated 30 april 2008victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p3295 2007permit application tpa 35243catchwordsapplication undersection 80of theplanning environment act 1987to review condition planning permit residential 1 zone four double storey dwelling applicantpaul indraresponsible authoritymonash city councilsubject land189 carinish road claytonwhere heldmelbournebeforecindy wilson memberhearing typehearingdate hearing19 march 2008date order24 april 2008citationindra v monash cc 2008 vcat 710orderleave granted amend applicant permit paul indra pursuant clause 64 2 schedule 1 thevictorian civil administrative tribunal act 1998 decision responsible authority varied tribunal directs planning permit number 35243 contain condition set permit issued 29 november 2007 responsible authority following modification condition 1 must deleted number remaining part condition 1 accordingly cindy wilsonmemberappearances applicantmr n crawford solicitor best hooper called mr c czarny urban designer give expert evidencefor responsible authoritymr hamilton town planner reasonssummarymonash city council granted permit four double storey dwelling subject number condition applicant sought review two condition condition contention relate requirement amend plan reduce upper level size increase extent articulation avoid fencing secluded private open space front setback found upper level proposed present articulated design positively contribute neighbourhood character fencing forward dwelling found inappropriate reason relating streetscape appearance site localitythe review site north side carinish road west kanooka grove site irregular shape frontage 16 2 metre widening 28 metre along rear boundary site area 1003 97 square metre single storey fibro house exists site together shed rear yard vehicle access via driveway west side site land gentle slope vegetation limited low shrub magnolia tree rear yard surrounding area residential nature comprises detached dwelling multi unit development mix dwelling style material single storey development predominant along carinish road double storey development common north front garden generally sparsely planted canopy tree infrequent front fencing varies considerably adjoining site west dual occupancy development comprising single storey fibro dwelling setback 10 6 metre street single storey brick dwelling behind west 4 unit development comprising single storey brick unit set behind 1 8 metre high paling fence east review site corner site containing single storey brick dwelling facing carinish street single storey brick dwelling facing kanooka road north rear review site triangular shaped lot facing kanooka grove containing timber dwelling north west double storey multi unit development opposite review site south side carinish road railway line clayton railway station located 300 metre west shop school monash medical centre relatively close proximity review site proposalit proposed construct four double storey dwelling follows dwelling 1 setback 8 3 metre street carport behind dwelling 2 sited centrally land carport located adjoining carport dwelling 1 dwelling 3 4 located rear property side side arrangement connected carport vehicle access via shared driveway east side site giving access single carport tandem car space provided dwelling upper level dwelling sited irregular manner section projecting beyond lower level roofing mix pitched flat elevation show brick lower wall timber cladding upper wall colorbond roofing planning schemethe review site zoned residential 1 monash planning scheme scheme permit required construct one dwelling land development must meet requirement clause 55 clause 65 relevant consideration overlay applicable land relevance state planning policy framework clause 11 12 14 15 12 16 02 19 03 relevance local planning policy framework municipal strategic statement ms clause 21 particularly 21 04 residential residential development character policy clause 22 01 key consideration hearingthe party witness hearing relied written oral submission number photograph plan tendered tribunal inspected subject site surround following hearing mr crawford sought leave amend applicant permit paul indra objection council request gave leave amendment basis decisionthis application review pursuant tosection 80of theplanning environment act 1987against inclusion two condition permit address disputed condition turn setting reason decision recite material presented written submission tendered party retained file condition 1a condition 1a requires submission amended plan show reduction size upper floor dwelling minimum 25 current size floor increased level articulation incorporated council agreed site suitable increased density development double storey dwelling acceptable mr hamilton submitted however upper storey dwelling box like reduction size scale double storey element appropriate produce sympathetic transition development private open space adjoining land whilst improving overall presentation development boundary including street limitation opportunity landscaping due overhanging upper level together impact development would public open space located opposite site adjacent train line also concern raised council council view upper floor close excess 100 per cent ground floor excluding car port create dwelling top heavy appear replicated design positioned awkwardly respective ground floor fail meet following objective clause 22 01 3 scheme relating built form scale development high degree articulation detailing exhibited articulated graduated elevation avoiding two storey box like design provided adjoining public open space respected regard visual impact scale bulk mass height proposed development mr crawford submitted neighbourhood character improved high quality contemporary design development present individual dwelling visual relief recessive massing support view 25 reduction floor area required mr crawford relied evidence mr czarny considerable modulation within design proposed form composition massing ensure development read single monolithic boxed form rather series clever architectural part contemporary use domestic material closely tie development suburban surround positioning upper level form skewed setback manner ground level avoid overwhelming mass scheme place considerable emphasis encouraging new development achieve architectural urban design outcome positively contribute neighbourhood character local policy includes review site residential character type b desired future character identified include neighbourhood character area develops retain modest unassuming character ensuring multi housing development including dual occupancy appropriate scale form existing dwelling built form unified general consistency building setback new dwelling address street complement scale form adjacent building redevelopment single storey unless gradated change height sitetrees large shrub soften transition building sympathetically designed building encouraged local policy applicable residential land specifies objective relating built form scale development includes height scale existing dwelling neighbourhood respected similar building material within surrounding neighbourhood utilised high degree articulation detailing exhibited roof height pitch adjoining development maintained creative quality design solution provided particularly relation bulk building setback ensure adequate landscaping frontage similar built form style provided street display unified architectural style articulated graduated elevation avoiding two storey box like design provided adjoining public open space respected regard visual impact scale bulk mass height proposed development satisfied built form proposed achieves acceptable outcome change extent upper floor area increased articulation sought condition 1a necessary reach position regard following find upper level considerably articulated lower level four unit whilst form articulation proposed different traditional approach recessing upper level lower level design nevertheless minimises sheer wall example unit 1 incorporates upper level recessed street eastern elevation protruding ground floor west northern elevation similar approach taken unit 2 neither unit present sheer wall two rear unit articulation provided form recessed cantilevered section upper level three elevation east elevation unit 4 west elevation unit 3 however minimal articulation consider impact section wall limited since internal site face separated carport incorporate small upper level overhang break single plane two storey wall internal separation unit upper level provides sense space respectful building spacing area agree mr czarny allows development read series discrete form reflecting form detached dwelling common nearby setback side rear boundary upper level minimum 1 5 metre typically generous allow adequate sense space achieve gradated change height sought policy variety external material proposed different window shape angled wall provide high degree interest built form create detailed varied elevation combination recessing cantilevering upper level lower level inclusion flat roof form centrally within development achieves high degree articulation detailing policy seek achieve specific standard clause 55 relation visual bulk regard matter required decision guideline relating street setback building height site coverage design detail council raise concern regarding compliance objective standard provision assessment proposal clause 55 setback boundary height site coverage detailed design objective met satisfied proposal avoid unreasonable visual bulk council concern limited opportunity landscaping well founded view area upper level unit overhang ground level almost entirely confined area would available landscaping deck driveway carport 38 site set aside private open space significant portion area facing common driveway front setback canopy tree planting occur without restricting use space note condition 11 12 planning permit requires submission landscape plan completion landscaping satisfaction council persuaded reduction upper level floor area would create additional opportunity landscaping additional area required meet landscaping objective sought local policy clause 55 impact development public realm including open space along railway line view acceptable unit 1 present significantly articulated elevation street incorporating upper level recessing different rooflines ground upper level varied external material provision porch wide extent floor ceiling window ground level satisfied presentation together minimum setback 8 3 metre frontage result development make positive contribution local urban character find unnecessary require alteration upper level 4 unit sought condition 1a satisfied design proposed result distinctive built form avoid box like appearance fulfil policy aim providing creative quality outcome condition 1 b condition requires southern boundary secluded private open space dwelling 1 moved approximately 1 5 metre north become equal south west corner dwelling mr hamilton argued revised location fence appropriate provide improved streetscape appearance smoother transition frontage adjoining dwelling 187 carinish road mr crawford submission balance must struck streetscape character internal amenity reduction secluded private open space unit 1 without commensurate improvement street justified relied evidence mr czarny relocation fence align dwelling unnecessary regard following angled setback 6 8 metre frontage maintains open profile street consistent prevailing street effect whilst also supporting suitably secluded private open space unit 1 alignment fence integrated architectural form read link building boundary use horizontal timber batten fencing 25 transparency conjunction frontage planting establish subtle transition form soft hard material front elevation relocation would little enhance open profile landscape character carinish road context site includes example private open space fencing close street acknowledging best practice secluded private open space unit 1 provided west side site plan show landscaping screen approximately 1 5 metre forward dwelling providing privacy area plan clear form screen take mr czarny advised horizontal timber batten fence 1 8 metre height proposed addition proposed 600mm high brick wall along frontage persuaded appropriate rely front setback secluded private open space albeit limited manner proposed desired future character area includes strong emphasis creation visually permeable garden buffer house street consider inclusion screen fence area limit achievement future character acknowledge example high fencing street nearby including 1 8 metre high paling fence 185 carinish street view represent unattractive feature streetscape emulated clearly discouraged policy whilst fence question front fence view create intrusive element front setback reduce contribution front setback make landscaping agree mr crawford balance must struck internal amenity streetscape presentation find appropriate balance case require setback fence align dwelling required condition satisfied outcome achieve improved streetscape appearance provide sufficient secluded private open space future occupant unit 1 find condition proposed relation fencing appropriate retained conclusionfor reason set direct decision responsible authority varied ordered permit issued subject modified condition cindy wilsonmember
1932846 (Migration) [2020] AATA 4032 (23 July 2020).txt	1932846 migration 2020 aata 4032 23 july 2020 last updated 14 october 20201932846 migration 2020 aata 4032 23 july 2020 decision recorddivision migration refugee divisioncase number 1932846member christine codydate 23 july 2020place decision sydneydecision tribunal remit application partner provisional class uf visa reconsideration direction applicant meet following criterion subclass 309 spouse provisional visa public interest criterion 4020 purpose cl 309 225 schedule 2 regulation statement made 23 july 2020 2 55pmcatchwordsmigration partner provisional class uf visa subclass 309 partner provisional provided false misleading information failure disclose criminal record waiver requirement compassionate compelling circumstance two australian citizen child genuine spousal relationship decision review remittedlegislationmigration act 1958 s 48 65 359 362a 375migration regulation 1994 schedule 2 cl 309 225 schedule4 pic 4020casesarora v mibp 2016 fcafc 35batra v miac 2013 fca 274kaur v mibp 2017 fcafc 184plaintiff m64 2015 v mibp 2015 hca 50trivedi v mibp 2014 fcafc 42any reference appearing square bracket indicate information omitted decision pursuant tosection 378of themigration act 1958and replaced generic information statement decision reasonsapplication reviewbackground immigration history relationshipsthe visa applicant mr first arrived legally australia may 2008 holder student visa dependent applicant m b spouse visa applicant divorced m b january 2013 visa applicant married m c second wife january 2013 visa applicant applied uk 820 b 801 partner visa 4 february 2013 basis relationship second wife refused 28 march 2014 refusal notification found invalid visa applicant notified 7 november 2014 bridging visa expired 4 december 2014 became unlawfully present australia visa applicant second wife divorced final order june 2016 visa applicant remained unlawfully present australia december 2014 march 2015 applied uk 820 b 801 partner visa basis de facto relationship m application found invalid day due bar lodging application unders 48of themigration act 1958 act visa applicant applied ministerial intervention 10 march 2015 refused 11 march 2015 visa applicant remained bve awaiting passport applied protection visa 1 april 2015 refused 18 december 2015 visa applicant married m third current wife review applicant proceeding october 2016 1 visa applicant lodged application review decision refuse grant protection visa tribunal differently constituted tribunal affirmed delegate decision 20 june 2017 tribunal file 1600407 visa applicant departed australia july 2017 current applicationthe visa applicant applied partner provisional class uf visa unders 65of act offshore 21 september 2017 basis current relationship review applicant delegate minister immigration considered two subclass uf 309 bc 100 refused grant visa 27 september 2019 basis applicant satisfy requirement cl 309 225 schedule 2 themigration regulation 1994 regulation visa applicant meet public interest criterion 4020 pic 4020 found provided false misleading information department compelling compassionate reason grant visa review applicant applied tribunal review decision 19 november 2019 issue case delegate thetribunal conducted hearing video australian participant telephone 18 june 2020 due covid 19 pandemic review applicant gave evidence presented argument tribunal also received oral evidence visa applicant telephone country 1 agent participated video provided submission tribunal received late offer take evidence visa applicant mother instead statutory declaration provided tribunal hearing conducted assistance interpreter country 1 english language tribunal decided reason set single issue matter remitted department consider criterion visa claim made departmentbackground information applicant development relationshipthe following claim made visa application sponsorship form visa applicant form 80 personal particular well statutory declaration provided department review applicant born year country 2 review applicant came australia 2003 australian citizen grant review applicant previously married mr e dob april 2011 divorce may 2016 sponsored partner visa child marriage review applicant father mother brother reside australia visa applicant born year country 1 visa applicant father mother sibling reside country 1 one brother resides australia visa applicant child previous relationship applicant first met dating website 2 month meeting person applicant first met september 2013 location began dating week committed shared life together december 2013 date started living together relationship became stronger son child 1 born date review applicant became pregnant decided get married applicant married october 2016 department file contains document including copy review applicant australian citizenship certificate victorian marriage certificate visa applicant review applicant copy victorian birth certificate applicant child child 1 photo child 1 australian passport photo victorian birth certificate applicant child child 2 born date visa applicant returned country 1 july 2017 took child child 1 2 child child 2 remained australia review applicant claim made visa applicant current application concerning criminal recordthere three document provided department visa applicant asserts convicted criminal offence australia visa application form visa applicant state answer question applicant ever convicted offence country including conviction removed official record response character question form 80 applicant completed swore true july 2017 one day prior leaving australia applicant selects response question ever convicted offence country including conviction removed official record police check signed co ordinator criminal record dated 15 august 2017 state disclosable court outcome recorded applicant supplied applicant department transpires certificate error far tribunal know least one conviction discussed tribunal found information provided visa applicant incorrect issue lawthe issue review whether visa applicant meet public interest criterion 4020 pic 4020 required cl 309 225 grant visa broadly speaking requires evidence applicant given caused given minister officer tribunal relevant assessing authority medical officer commonwealth bogus document information false misleading material particular relation application visa visa applicant held 12 month application made pic 4020 1 andthe applicant member family unit refused visa failure satisfy pic 4020 1 period starting 3 year application made ending visa granted refused unless applicant 18 time application refused visa made pic 4020 2 2aa andthe applicant satisfies minister identity pic 4020 2a andneither applicant family unit member refused visa failure satisfy pic 4020 2a period starting 10 year application made ending visa granted refused unless applicant 18 time application refused visa made pic 4020 2b 2ba requirement pic 4020 1 2 waived certain compelling compassionate reason justifying granting visa pic 4020 4 however waiver apply identity requirement pic 4020 2a 2b pic 4020 extracted attachment decision applicant given caused given bogus document information false misleading material particular pic 4020 1 term information false misleading material particular defined pic 4020 5 term bogus document defined 5 1 act see attachment decision contrast definition information false misleading material particular pic 4020 5 reference definition bogus document document obtained false misleading statement requirement relevant criterion grant visa arora v mibp 2016 fcafc 35 batra v miac 2013 fca 274 requirement pic 4020 1 provide bogus document false misleading information applies whether minister became aware bogus document information false misleading material particular information given applicant pic 4020 3 also applies whether document information provided applicant knowingly unwittingly pic 4020 refers information false sense purposely untrue necessary minister tribunal review conclude applicant aware information purposely untrue order pic 4020 engaged however element fraud deception person necessary attract operation provision trivedi v mibp 2014 fcafc 42 delegate considerationthe department file contains various icse case note correspondence including covered non disclosure certificate suggest information provided applicant incorrect file also contains copy earlier australian police check visa applicant dated 21 august 2015 showing visa applicant convicted stalk another person july 2011 sentenced 18 month community order 120 hour unpaid service department wrote visa applicant way letter dated 5 july 2019 setting adverse information noted visa applicant stated convicted offence country application form form 80 provided australian police check showing disclosable court outcome departmental record indicate visa applicant previously provided australian police check showing conviction stalk another person 21 july 2011 support another visa application department noted indicates information provided current application regarding character incorrect material particular criminal history considered part character test pic 4001 noted pic 4020 may apply visa applicant given opportunity respond response visa applicant swore affidavit dated 25 july 2019 stating ticked wrong box mistake english first language well qualified english misread question 7 year since studied department already aware stalking logical consider tried mislead department review applicant also provided statutory declaration sworn 25 july 2019 stating visa applicant mistakenly ticked wrong box due misreading question mean mislead department criminal delegate decisionthe delegate refused application 27 september 2019 basis delegate refusal visa applicant meet pic 4020 provided false misleading information department ticking question applicant ever convicted offence country including conviction removed official record partner visa application form form 80 previously provided police certificate 21 august 2015 indicates convicted stalking offence stalk another person july 2011 delegate noted visa applicant claim ticked box mistake misread question since english first language delegate noted visa applicant come australia 2008 student visa stayed australia nearly 9 year basis delegate satisfied visa applicant misunderstood question due poor english therefore visa applicant meet pic 4020 1 visa applicant provided false misleading information delegate also noted opinion compassionate compelling ground pic 4020 4 warrant waiver pic 4020 1 regard delegate noted applicant son overseas opinion reasonable explanation review applicant made attempt join visa applicant son country 1 delegate also noted evidence financial interdependency cooperation applicant regard child non disclosure certificate file tribunalthe tribunal number file namely tribunal case file relating current application review 1932846 department file number initial partner visa application relating review applicant made onshore found invalid due 48 bar department file number relating current visa application refusal led current application tribunal tribunal also following departmental file issued summons department file file normally provided relation application review tribunal file number relating first partner visa application lodged visa applicant different sponsor second wife file number relating protection visa lodged visa applicant first partner visa application 48 barred tribunal also decision record tribunal differently constituted dated 20 june 2017 1600407 affirming decision delegate grant visa applicant protection visa number non disclosure certificate file tribunal well information generally relating another person visa applicant second wife information visa applicant protection file appropriate disclose third person review applicant relation current application review unless specific adverse information relied upon tribunal affirm decision review tribunal note following relation certificate issued relation two file department file number 375a non disclosure certificate relates folio 151 153 169 170 174 175 basis certificate folio 151 170 disclose lawful method preventing detecting investigating breach law would prejudice effectiveness method basis 174 175 information provided confidence department department issued 375a non disclosure certificate relation file 27 may 2020 relating folio 127 130 131 132 133 136 164 basis certificate disclose lawful method preventing detecting investigating breach evasion law departmental file number partner visa file relating second spouse department issued 375a non disclosure certificate 15 may 2020 relating folio 28 29 38 basis non disclosure certificate folio 28 38 disclose lawful method preventing detecting investigating breach evasion law folio 29 may endanger life physical safety person tribunal considers certificate valid tribunal decided remit case would put information review applicant pursuant 359a required tribunal put information hearing relating adverse matter prior hearing agent indicated made request department home affair production file foi response month overdue order progress matter tribunal drew attention agent provision 362a act agent submitted request pursuant 362a 1 document comprising dept sic home affair file relation application including correspondence applicant m husband mr 2 document submitted aat respect application review decision refuse grant partner subclass 820 801 visa officer tribunal provided document tribunal case file relating current application review 1932846 department file number initial partner visa application relating review applicant made onshore found invalid due 48 bar department file number folio 127 133 136 151 153 164 169 170 174 175 department file number excluded release subject 375a non disclosure certificate folio 36 47 48 53 76 77 file excluded australian privacy principle 6 contained personal information another person tribunal consideration issue false misleading informationadmission 2011 offence information encounter lawthe agent provided document submission tribunal accepted national police certificate visa applicant name dated date august 2015 provided department showed convicted offence stalk another person july 2011 stated since responding request information november 2018 realised matter disclosed department realises imperative make fullest accurate disclosure department tribunal respect charge conviction referred following matter 2013 drink drive fine converted community service work disclose realise driving offence need disclosed 2014 drive whilst disqualified fine converted community service work disclose realise driving offence need disclosed 2013 2014 court appearance magistrate court belief court appearance relation second wife cannot remember whether charged offence convicted emphasis added best recollection may charged convicted assault certain penalty imposed indeed charged convicted revealed national police check dated 21 august 2015 visa applicant offer explanation easy time second wife claim alcohol drug abuse led conflict 18 november 2015 assault different magistrate court visa applicant say belief assault charge relating incident review applicant emphasis added review applicant said recall wanting matter go court otherwise neither recall detail come mind completing form explanation failure disclose criminal recordthe tribunal considered various explanation offered visa applicant accept following reason visa applicant claim assertion criminal record mistake poor englishthe tribunal accept explanation reason set previous application indicating fluency english visa applicant came australia holding student visa may 2008 claim successfully studied completed qualification melbourne august 2009 october 2011 indicate working knowledge english time since prior completion form claimed understood question whether charge conviction indicated fluency english language example protection visa application form signed 1 april 2015 asked language order reference firstly listed english speak read write secondly list native language 3 visa applicant application review form 4 seeking review delegate decision grant protection visa lodged tribunal 12 january 2016 form stated require interpreter visa applicant hearing tribunal hearing application review delegate decision grant protection visa occurred 16 june 2017 conducted english decision record member stated applicant appeared tribunal give evidence present argument 16 june 2017 applicant stated spoke fluent english hearing tell difficulty conversation english although spoke accent understood said start hearing asked whether well able talk story stated hearing appeared fully understand question gave coherent answer explanation ass competent give evidence full opportunity put forward story argument 5 indicates visa applicant level english proficient level prepared attend tribunal hearing argue protection claim english tribunal asked visa applicant current hearing could recall gave evidence tribunal english said could recall tribunal prepared accept context argument disclose criminal record english poor could remember chosen give evidence important tribunal hearing determine claim face real chance serious harm return country 1 review applicant confirmed 2017 accompanied tribunal gave evidence english current partner visa application form addition tribunal considers manner visa applicant completed form also undermines claim poor english tribunal note application form completed lodged online 21 september 2017 visa applicant provided two page detailed information english relationship answer provided showed level awareness english language matter relating migration example asked lived separately apart review applicant time since committing shared relationship stated yes applicant leave australia apply partner visa australia applicant section 48bar stop lodge onshore application answer question section character declaration provided response detail example asked ever overstayed visa country said overstayed visa australia aware overstaying visa answer question applicant ever outstanding debt australian government public authority australia stated yes applicant outstanding debt 1675 aat pay 30 september 2017 visa application form declaration end warning giving false misleading information serious offence applicant declares read understood information provided form provided complete correct information every detail form attachment numerous warning given stated acknowledged provided false misleading information document may refused visa visa granted may cancelled also declared became aware incorrect information would notify department writing immediately tribunal put visa applicant inclusion matter reference 48 bar complicated information suggest problem understanding english word response said seen lawyer australia knew 48 bar tribunal persuaded visa applicant aware meaning question application form form 80 declared overstaying outstanding debt australia response character question form contains lot detail provided english applicant sign declaration form acknowledging giving false misleading information serious offence information supplied correct every detail tribunal put hearing difficult accept explanation english responded knew thing time enough given visa applicant claim least one conviction result penalised subjected community service tribunal prepared accept explanation tribunal put review applicant visa applicant completed two form incorrect answer concerning criminal record review applicant agreed said english good tribunal put difficult accept said asked said depression stressed sure happened 9 10 year ago thought record explanation visa applicant omitting mention criminal record different visa applicant explanation undermines explanation understand question prehearing submission stated visa applicant explanation lack english credible given engaged study work long period australia delegate inference english speaking ability properly drawn tribunal accept inference insofar relates explanation tribunal considers undermines visa applicant claim assertion criminal record result poor english visa applicant action subsequently correcting error application formthe visa applicant action subsequently correcting error application form indicate reconsidered content application form realised contained error corrected error however correct error relation conviction departmental file prior date visa applicant notified department considered application form contain incorrect information criminal record lodged two notification incorrect answer form form notification incorrect answer dated 4 march 2018 stating visa applicant mistakenly left child name application form listing name date birth australian citizen form notification incorrect answer dated 4 may 2018 stating visa applicant application rush left application refused australia namely partner visa protection visa two visitor visa indicates reconsidered form discovered two different error question arises circumstance visa applicant also correct wrong information relation criminal conviction tribunal asked hearing visa applicant said recall think kid tribunal asked made form whether read form submitted realised error said realised needed amend form tell truth tribunal put however amend wrong answer criminal conviction visa applicant claimed know conviction new explanation discussed tribunal asked review applicant visa applicant lodged notification incorrect answer form two occasion said read application form told contained error better correct tribunal asked correct error criminal record said word effect thought ticked right box thought record afp decided answer inform ask document tribunal considered gone effort correcting form twice reasonable consider would seen reference form conviction know could researched reading form tribunal accept explanation regard considers failure correct information criminal conviction deliberate visa applicant previous acknowledgement criminal convictionthe visa applicant protection visa application form completed hand signed 1 april 2015 response question 87 whether ever convicted offence country stated stalking 2010 australia additional reference offence file circumstance tribunal considers visa applicant untruthful claim completing type question form current visa application know question meant noted applicant also previously produced police check 2015 provided department referred conviction also undermines claimed lack knowledge 2017 conviction given provided police check department 2015 tribunal considered submission visa applicant already provided information department trying mislead tribunal find persuasive given weight evidence indicating knew least one conviction denied twice current application visa applicant new claim tribunal know conviction despite previously declared previously provided evidence past convictionthe tribunal also considered explanation application rush tribunal noted hearing evidence made 5 application department prior making current application tribunal put would seem important application agreed circumstance tribunal understand would taken care response visa applicant claimed tribunal time filling form september 2017 know conviction tribunal asked confirm claim agreed said yes good english noted tribunal accepted explanation poor english tribunal put visa applicant april 2015 declared past conviction sentence difficult understand claim know conviction 2 year later actually attended court convicted offence stalking 2011 undertake 120 hour community service response said time fined community service know considered conviction tribunal prepared accept explanation tribunal considers would difficult forget carried significant community service accept visa applicant know time serving sentence conviction know conviction stalking visa applicant told tribunal found conviction 2 week ago researching tribunal put police certificate 2015 provided department state wasconvictedof offence responded concentrating something else tribunal consider satisfactory response submission refer additional encounter law visa applicant tribunal note driving offence referred submission conviction given received sentence indicates tribunal prepared accept visa applicant especially given additional encounter law know conviction submission acknowledge disclosure criminal matter may seen strongly support application pic 4020 tribunal agrees reason assertion researched 2 week ago conviction credible partner visa refused 27 september 2019 reason declared conviction given refusal meant able join wife child australia claim significant event affecting whole family life accepted motivated research conviction 9 month later june 2020 tribunal also note visa applicant make specific assertion lack knowledge meaning word conviction department statutory declaration response adverse information letter tribunal would expect made claim time even prehearing submission tribunal claim true tribunal accept explanation credible new assertion indicates visa applicant prepared tell untruth tribunal evidence generally visa applicant encounter law relating harassment violenceboth applicant said hearing stalking conviction 2011 related woman lived street thought stalking called police review applicant know visa applicant time referring conviction visa applicant asked hearing whether problem police said tribunal repeated question said encounter twice police relating second wife relating current wife second wife submission state visa applicant think may charged convicted assault sure hearing tribunal asked whether charged convicted offence relating second wife claimed could recall happened 2013 although recall went court tribunal considers visa applicant claim recall happened circumstance accused assaulting second wife credible review applicant said dating time affair aware someone called police charged assaulting second wife tribunal asked happened charge said go court claimed know result charge asked said two tribunal find response persuasive given claim involved time short time later committed spending life together response suggests subsequently never asked credible given relationship criminal record refusal visa would allow thus son come australia tribunal accept applicant given truthful evidence knowledge recollection happened visa applicant went court accused assaulting second wife review applicant submission referred visa applicant appearing magistrate court november 2015 charged assaulting review applicant visa applicant lack recollection happened accused assaulting second wife gave similar response tribunal asked happened current wife asked visa applicant told tribunal horrible argument called police asked happened claimed recall tribunal put difficult accept said asked go police station visa applicant said recall going police station recall going court tribunal noted said could recall happened could recall going court claimed review applicant left child police station verbal argument angry tribunal asked would leave son police station said could give answer tribunal asked review applicant occurred said home child argument screaming heard large noise police came house said got hand time drinking whacked shoulder police took detail said would consider charged one constable said wanted charge sent notice charge attend court required attend court review applicant claimed tell charge result tribunal asked said talk lived separate room tribunal asked whether assault charge child said first warning tribunal asked clarity whether order conviction made relation child review applicant admit knowledge result proceeding court tribunal put seen intervention order protection child 6 order made march 2015 magistrate court specifies visa applicant court order made commit family violence protected person namely review applicant child child 1 response review applicant gave vague evidence child protection officer sent see recall thing tribunal put difficult accept could recall know order made protection child visa applicant tribunal put visa applicant review applicant claimed know order difficult understand relationship visa applicant changed evidence said maybe know sure tribunal consider applicant open honest knowledge recollection encounter criminal justice system specifically relation conviction tribunal considers offence stalking 2011 clear evidence conviction form 2015 police certificate visa applicant subsequent prior admission conviction lack clarity whether offence visa applicant convicted conclusion tribunal find evidence tribunal visa applicant gave department information false misleading material particular stating answer question applicant ever convicted offence country including conviction removed official record visa application form stating response question ever convicted offence country including conviction removed official record response character question form 80 convicted offence stalking 2011 tribunal find information false misleading time given relation current visa application relevant character criterion minister may consider making decision application tribunal find false misleading information given knowingly visa applicant accept explanation suggest otherwise therefore visa applicant meet pic 4020 1 requirement pic 4020 1 2 waived requirement pic 4020 1 2 may waived compelling circumstance affect interest australia compassionate compelling circumstance affect interest australian citizen australian permanent resident eligible new zealand citizen defined r 1 03 justify granting visa decision maker must first satisfied circumstance must consider whether exercise discretion waive requirement regard circumstance kaur v mibp 2017 fcafc 184 expression compelling circumstance compassionate compelling circumstance defined purpose compelling circumstance must force drive decision maker irresistibly satisfied seeplaintiff m64 2015 v mibp 2015 hca 50 ordinary meaning compassionate relates feeling sympathy sorrow pity concern others following reason tribunal satisfied requirement waived interest australia information would indicate compelling circumstance affect interest australia would justify granting visa applicant interest australian citizen tribunal accepts department review applicant two child australian citizen visa applicant father two child submitted tribunal following compelling compassionate circumstance affect interest australian citizen specific citizen identified although inferred committed exclusive relationship applicant seven year since december 2013 two australian citizen child son child 1 need continuing treatment specified condition receiving country 1 separation matter choice compelled visa applicant visa status review applicant living australia centrelink pension caring daughter visa applicant living country 1 parent caring son country 1 neither financial resource fund travel review applicant visa applicant country 1 couple communicate regularly telephone social medium communication despite review applicant limited financial mean contributes money towards visa applicant child 1 living cost country 1 submitted child australian law right contact parent satisfied granting visa applicant partner visa return australia son submission state since visa applicant met review applicant two child together life become much better matured recognises irresponsible led breaking law deeply regret foolish action past review applicant told tribunal much two child interest father visa granted order reunite brother sister father mother said first time away son daily contact son visa applicant daily contact daughter applicant also contact every day various method internet communication review applicant mother provided outline evidence confirming relationship referring child relationship said birth child 1 lived could assist new baby medical condition considers visa applicant devoted father spent lot time helping daughter care child considers loving relationship like couple problem overcome continue committed child attended wedding second child born lived since visa applicant child gone aware applicant speak almost every day hard separated support grant partner visa tribunal note additional supporting documentary evidence provided tribunal nature relationship well relating claim compelling compassionate factor case number criterion must considered department deciding whether grant visa department stage made finding one criterion namely cl 309 225 requirement meet pic 4020 tribunal considers role address make finding criterion necessary grant visa weigh balance certain factor order ascertain whether visa granted 7 role consider whether compelling compassionate factor would justify grant visa visa applicant provided criterion met determined department clear note found department file delegate made conscious decision address criterion cl 309 225 requirement meet pic 4020 delegate make finding criterion particular finding made delegate whether applicant genuine relationship similarly tribunal made finding whether relationship applicant genuine spouse relationship defined relevant time noting relationship crux application tribunal considers usurp delegate role deciding question would effectively denying visa applicant opportunity delegate consider criterion merit review positive decision tribunal note number issue arisen cause concern relationship delegate decision record refusing grant protection visa application noted birth certificate son indicates born sydney review applicant living sydney delegate noted visa applicant resided melbourne stay australia delegate considered indicated applicant living together concern living arrangement arose around time intervention order relating applicant put review applicant information told police living another couple visa applicant 8 response review applicant said living another couple visa applicant live 1 day one child protection officer said leave safe child tribunal asked would say said drinking talked rudely started argument safe child tribunal asked review applicant would allow take child back country 1 said child love father much difficult look tribunal asked whether worry safety child said course worry child going new place new house way parent look child 1 look healthy well tribunal explained asking concern child 1 safety left country 1 said promised stopped drinking would stop talking rudely let take child 1 information specify period time review applicant told police living together impression period longer 1 day tribunal note asked visa applicant claimed never lived separately apart review applicant australia concern relates credibility claim visa applicant prepared make regard noted tribunal considers visa applicant prepared tell untruth relation failure disclose previous conviction explaining omission department tribunal visa applicant made protection visa application claim 9 return country 1 community harm family family kill accept u current proceeding tribunal noted evidence visa applicant son living parent visa applicant told tribunal family know child life country 1 well wife child back australia asked know said everyone know take child introduced family member everyone like child tribunal put visa applicant claimed previous application family would kill mixed race marriage child visa applicant agreed said protection visa application agreed claimed people could kill tribunal put visa applicant claimed application thathis familywould kill whereas presented different evidence relation family awareness acceptance mixed race marriage mixed race child current proceeding visa applicant seek comment indicates visa applicant prepared adapt claim depending upon application made hand evidence could support least time genuine relationship applicant including birth two child agent submission referred departmental note 9 april 2019 departmental officer quoted saying visa applicant provided sufficient evidence social aspect relationship substantive evidence applicant contact period commitment two child current relationship australian citizen tribunal reason set made finding particular criterion tribunal however accept two australian child sibling aged age age year separated australian citizen mother separated age year old son 3 year tribunal satisfied provides compassionate compelling circumstance justifies granting visa visa applicant circumstance requirement pic 4020 1 waived conclusionon basis visa applicant satisfy pic 4020 purpose cl 309 225 decisionthe tribunal remit application partner provisional class uf visa reconsideration direction applicant meet following criterion subclass 309 spouse provisional visa public interest criterion 4020 purpose cl 309 225 schedule 2 regulation christine codymemberattachmentmigration regulation 1994schedule 4 1 evidence minister applicant given caused given minister officer tribunal review apart 5reviewable decision relevant assessing authority medical officer commonwealth bogus document information false misleading material particular relation application visa b visa applicant held period 12 month application made 2 minister satisfied period starting 3 year application made b ending minister make decision grant refuse grant visa applicant member family unit applicant refused visa failure satisfy criterion subclause 1 2aa however subclause 2 apply applicant time application refused visa made applicant 18 2a applicant satisfies minister applicant identity 2b minister satisfied period starting 10 year application made b ending minister make decision grant refuse grant visa neither applicant member family unit applicant refused visa failure satisfy criterion subclause 2a 2ba however subclause 2b apply applicant time application refused visa made applicant 18 3 avoid doubt subclauses 1 2 apply whether minister became aware bogus document information false misleading material particular information given applicant 4 minister may waive requirement paragraph 1 b subclause 2 satisfied compelling circumstance affect interest australia b compassionate compelling circumstance affect interest australian citizen australian permanent resident eligible new zealand citizen justify granting visa 5 clause information isfalse misleading material particularmeans information false misleading time given b relevant criterion minister may consider making decision application whether decision made information migration act 1958s 5interpretation 1 act unless contrary intention appears bogus document relation person mean document minister reasonably suspect document purport issued respect person b counterfeit altered person authority c obtained false misleading statement whether made knowingly 1 marriage certificate note marriage registered november 2016 2 departmental movement record confirm 3 df21 file number deleted 4 tribunal file 1600407 5 paragraph 16 tribunal decision record 20 june 2017 1600407 6 departmental protection visa file 7 tribunal also note paragraph 8 2 president direction conducting migration refugee review 1 august 2018 8 departmental file number deleted folio 152 subject tos 375acertificate 9 refer protection visa file departmental tribunal
Steak Plains Olive Farm Pty Limited v Australian Executor Trustees Limited [2015] NSWSC 42 (11 February 2015).txt	steak plain olive farm pty limited v australian executor trustee limited 2015 nswsc 42 11 february 2015 last updated 12 february 2015supreme courtnew south walescase name steak plain olive farm pty limited v australian executor trustee limitedmedium neutral citation 2015 nswsc 42hearing date 5 february 2015decision date 11 february 2015jurisdiction common lawbefore button jdecision 1 proceeding new south wale civil administrative tribunal stayed 4 pm 28 february 2015 2 appeal way summons filed 5 december 2014 listed hearing 10 27 february 2015 3 cost motion cost cause 4 interlocutory order sought registrar regard preparation appeal liberty granted restore registrar either party two 2 day rsquo notice catchword administrative law appeal pursuant 54 defendant new south wale civil administrative tribunal whether stay proceeding tribunal granted pending determination appeallegislation cited agricultural tenancy act 1990 nsw s 20 21civil administrative tribunal act 2013 nsw 54uniform civil procedure rule 2005 nsw r 50 7category principal judgmentparties steak plain olive farm pty limited plaintiff australian executor trustee limited defendant representation counsel e holmes plaintiff archibald defendant solicitor bradbury legal plaintiff sparke helmore lawyer defendant file number 2014 358386judgmentthis application plaintiff stay proceeding pursuant r 50 7 theuniform civil procedure rule 2005 nsw new south wale civil administrative tribunal ncat pending appeal court founded upon asserted error law defendant opposed granting stay chiefly basis appeal reveal good arguable case provided substantial amount evidence detailed written submission extensive helpful oral submission nevertheless due urgency matter must concise background follows plaintiff court steak plain olive farm pty ltd tenant property located hillston near griffith western new south wale defendant australian executor trustee ltd owner written lease entered two party dispute theagricultural tenancy act 1990 nsw act applies circumstance 4 december 2013 defendant issued notice plaintiff purporting terminate lease threatening take possession property 12 february 2014 defendant brought proceeding ncat 5 december 2014 plaintiff commenced proceeding equity division court proceeding arose lease party regard property 13 august 2014 principal member ncat handed judgment regard whether pursuant 54 civil administrative tribunal act 2013 nsw cat act proceeding ncat transferred court state determination principal member succinctly whatever restriction may apply jurisdiction tribunal regard equitable relief utility transferring proceeding tribunal amply empowered 20 21 act make order would provide appropriate relief plaintiff transfer would utility principal member declined order gave reason 93 97 plaintiff appealed judgment appeal panel tribunal 17 november 2014 appeal panel handed decision effect saw error judgment principal member particular regard question breadth power tribunal appeal panel said 28 29 power invested tribunal virtue act broad include power grant relief nature relief forfeiture regard question utility transfer whether discretion principal member miscarried refusal principal member order appeal panel 30 found error pursuant 54 cat act plaintiff appealed court asserting error law determination appeal panel although appeal hearing date interest expedition counsel plaintiff would content appeal fully heard 27 february 2015 would convenient date date motion defendant equity proceeding seeking proceeding plaintiff struck listed hearing although detailed various base counsel plaintiff content understand ground appeal court possessing one central proposition appeal panel erred failure find principal member error failing transfer matter said error law appeal panel misconstrued true meaning power vouchsafed tribunal 20 21 act properly construed said power sufficiently extensive provide plaintiff appropriate relief particular regard equitable doctrine relief forfeiture case submitted sound reason transferring proceeding tribunal court separately counsel plaintiff explained hearing tribunal proceed 16 february 2015 indicated content appeal heard eleven day later 27 february 2015 time strike application equity proceeding submitted although appeal appeal panel theory interlocutory truth substantive contention correct proceeding transferred tribunal would longer exist forum word submitted would cautious indeed confident ground appeal unmeritorious render statutory right appeal otiose way superseded proceeding continuing ncat indeed submitted fact required assistance extensive oral submission hearing application stay inherently demonstrates contention appeal least reasonably arguable contrast counsel defendant submitted prospect success appeal sufficient stay appropriate submitted determination principal member quite correct contains persuasive analysis contention plaintiff narrowness power tribunal rejected submitted careful reading determination appeal panel reveals error whatsoever took particular part 21 act assert every form relief sought plaintiff even fully successful amply accommodated within flexible power tribunal short submitted stay granted founded upon fact appeal lodged court simply postpone resolution matter good reason turning determination consider sound force submission counsel defendant particular sought ass attack determination appeal panel short time available difficult discern legal error therein matter statutory interpretation hard understand parliament would provided tribunal empowered determine dispute tenancy le formal way court power anything ample flexible case plaintiff could well accommodated ncat court would utility transfer would follow error approach appeal panel either matter statutory interpretation matter evaluation reason principal member refusal transfer proceeding said accept submission counsel plaintiff proceeding tribunal stayed would render appeal otiose would require firm confidence part appeal baseless one thing say suspect appeal without merit another thing say confident proposition posse latter state mind well stay contended plaintiff matter day week month quite possible defendant manifestly correct contention appeal dismissed 27 february 2015 consider could inappropriate refuse stay subject matter appeal truth delay occasioned stay short circumstance time reflect come view proceeding ncat stayed order permit plaintiff effectually exercise appeal right regard matter law parliament seen fit grant said consider stay extend beyond 4 pm day appeal heard judge hears appeal 27 february 2015 considers meritorious least requires reflection open judge extend stay also think must mechanism put place whereby hearing date endangered matter brought back registrar list promptly order remove obstacle finally although party sought cost motion successful reflection consider cost cause even though plaintiff succeeded mind cost motion regard stay ancillary appeal consonant determination appeal foregoing reason make following order 1 proceeding new south wale civil administrative tribunal stayed 4 pm 28 february 2015 2 appeal way summons filed 5 december 2014 listed hearing 10 27 february 2015 3 cost motion cost cause 4 interlocutory order sought registrar regard preparation appeal liberty granted restore registrar either party two 2 day notice
Matthew Peat [2017] FWC 6378 (1 December 2017).txt	matthew peat 2017 fwc 6378 1 december 2017 last updated 1 december 2017 2017 fwc 6378fair work commissiondecisionfair work act 2009s 365 general protectionsmatthew peat c2017 1753 deputy president kovaciccanberra 1 december 2017application deal contravention involving dismissal invalid application application dismissed 1 mr matthew peat applicant made application received fair work commission commission 31 march 2017 unders 365of thefair work act 2009 act alleging dismissed contravention general protection provision act mr peat application incomplete respondent identified payment lodgment fee application waiver lodgment fee completed 2 3 april 2017 commission contacted mr peat via email asking provide commission completed application completed waiver form lodgment fee within 14 day application may dismissed 3 21 april 2017 commission attempted contact mr peat via telephone advise application unpaid incomplete mr peat answer call telephone number provided application disconnected email sent asking mr peat provide commission completed application payment filing fee completed application fee waiver foreshadowed mr peat application may dismissed unless completed completed waiver form paid lodgement fee despite repeated attempt contact mr peat commission received completed application completed waiver form payment lodgment fee 4 section 587of act provides 587 dismissing application 1 without limiting fwc may dismiss application fwc may dismiss application application made accordance act b application frivolous vexatious c application reasonable prospect success 2 despite paragraph 1 b c fwc must dismiss application undersection 365or773on ground application frivolous vexatious b reasonable prospect success 3 fwc may dismiss application initiative b application 5 relation application made pursuant tos 365of act 367provides 367 application fee 1 application must accompanied fee prescribed regulation 2 regulation may prescribe fee making application fwc undersection 365 b method indexing fee c circumstance part fee may waived orrefunded 6 mr peat failed comply withs 367 1 act accordingly application made accordance act therefore dismissed pursuant toss 587 1 act order effect issued decision printed authority commonwealth government printer price code pr598260
Kim (Migration) [2019] AATA 2819 (27 February 2019).txt	kim migration 2019 aata 2819 27 february 2019 last updated 22 august 2019kim migration 2019 aata 2819 27 february 2019 decision recorddivision migration refugee divisionapplicants mr yunjun kimms kyoung jin leemaster geunwoo kimmiss jiwoo kimcase number 1706427dibp reference bcc2016 2406858member ian berrydate 27 february 2019place decision brisbanedecision tribunal remit application employer nomination permanent class en visa reconsideration direction first named applicant meet following criterion subclass 186 visa cl 186 223 schedule 2 regulation andthe tribunal remit application employer nomination permanent class en visa reconsideration direction second third fourth named applicant meat following criterion subclass 186 employer nomination scheme visa cl 186 311 schedule 2 regulation statement made 27 february 2019 12 47pmcatchwordsmigration employer nomination permanent class en visa subclass 186 employer nomination scheme temporary residence transition stream chef tribunal approved nomination decision review remittedlegislationmigration act 1958 cth 65migration regulation 1994 schedule 2 cl 186 223 2 186 311 rr 1 13a 1 13bstatement decision reasonsapplication reviewthis application review decision made delegate minister immigration 14 march 2017 refuse grant visa applicant mr kim employer nomination permanent subclass 186 visa unders 65of themigration act 1958 act mr kim applied visa 19 july 2016 delegate refused grant visa basis nomination application identifying mr kim nominee refused minister pursuant cl 186 223 schedule 2 regulation theapplicants appeared tribunal 20 february 2019 give evidence present argument conjunction hearing nomination application tribunal hearing conducted assistance interpreter korean english language applicant represented relation review registered migration agent following reason tribunal concluded matter remitted reconsideration consideration claim evidencethe issue present case whether mr kim meet requirement cl 186 223 2 subject nomination application approved minister requires application case identified position chef anzsco 351311 subject application approval nomination temporary residence transition stream identifying mr kim identified position identified position must one subject declaration required made part current visa applicationin addition criterion also requires nomination approved subsequently withdrawn adverse information known immigration person made nomination person associated person within meaning r 1 13a r 1 13b reasonable disregard information identified position still available mr kim andmr kim application made six month nomination position approved 20 february 2019 tribunal set aside refusal decision substituted decision approving nomination tribunal therefore find mr kim meet criterion cl 186 223 2 regard evidence obtained hearing giving careful consideration evidence contained department file file tribunal tribunal satisfied nomination approved subsequently withdrawn b adverse information known mr kim person associated c nominator provided evidence position chef occupied mr kim 17 july 2014 meaning employed period least four year full time basis employer nominator nominator gave evidence hearing identified position still open mr kim subject written employment contract minimum period two year exclude possible extension mr kim made application six month following nomination position nomination approved review tribunal 20 february 2019 therefore tribunal find cl 186 223 met secondary applicantsthe tribunal find second third fourth named applicant member family unit mr kim applicant subclass 186 visa satisfies primary criterion grant visa tribunal satisfied second third fourth named applicant made combined application mr kim given finding appropriate course remit visa application minister consider remaining criterion visa decisionthe tribunal remit application employer nomination permanent class en visa reconsideration direction first named applicant meet following criterion subclass 186 visa cl 186 223 schedule 2 regulation andthe tribunal remit application employer nomination permanent class en visa reconsideration direction second third fourth named applicant meet following criterion subclass 186 employer nomination scheme visa cl 186 311 schedule 2 regulation ian berrymember
Noel v Cook (No. 2) [2004] FCA 721 (4 June 2004).txt	noel v cook 2 2004 fca 721 4 june 2004 last updated 8 june 2004federal court australianoel v cook 2 2004 fca 721lorna evelin noel v harvey cook saving australia pty limited abn 94 006 457 987 n1501 2003bennett j4 june 2004sydneyin federal court australianew south wale district registryn1501 2003between lorna evelin noelapplicantand harvey cookfirst respondentsavings australia pty limited abn 94 006 457 987 second respondentjudge bennett jdate order 4 june 2004where made sydneythe court order 1 applicant pay second respondent cost party party basis federal court australianew south wale district registryn1501 2003between lorna evelin noelapplicantand harvey cookfirst respondentsavings australia pty limited abn 94 006 457 987 second respondentjudge bennett jdate 4 june 2004place sydneyreasons judgment1 22 april 2004 delivered judgment matter favour respondent dismissing application review decision superannuation complaint tribunal noel v cook 2004 fca 479 judgment delivered second respondent made application indemnity cost background2 18 november 2003 applicant second respondent attended case management conference conducted registrar court 16 december 2003 matter set hearing 6 april 2004 3 evidence 19 december 2003 second respondent spoke applicant course conversation offered applicant anex gratiapayment 5 000 00 inclusive interest resolving matter commercial basis applicant accepted offer conversation 22 december 2004 applicant wrote second respondent letter rejected offer made second respondent conversation 19 december 2004 b made offer second respondent second respondent pay 4 000 00 death benefit first respondent pay applicant balance death benefit second respondent accept applicant offer 4 16 february 2004 letter second respondent submits accordancecalderbank v calderbank 1975 3 er 333 letter forwarded solicitor second respondent applicant 2 march 2004 applicant rejected second respondent settlement offer conveyed letter 5 course hearing 6 april 2004 second respondent indicated successful would make application indemnity cost 22 april 2004 second respondent sought order based applicant rejection offer contained letter applicant pay cost indemnity basis support application affidavit tendered annexing letter gave direction filing evidence submission relation application indemnity cost 6 4 may 2004 solicitor second respondent informed application indemnity cost pressed 17 may 2004 gave direction filing submission relation cost applicant submissions7 submission received applicant cannotafford pay party cost original emphasis seek order party pay cost respondent submissions8 submission received first respondent attend hearing seek order cost 9 second respondent submits circumstance particularly despite offer made letter press application indemnity cost applicant pay cost successful second respondent party party basis consideration10 section 43 2 thefederal court act 1976 cth provides award cost discretion court judge matter ordinary course unsuccessful party pay cost successful party party party basis harrigan v department health 1986 72 alr 293at 297 11 applicant demonstrated ordinary course followed matter accordingly order applicant pay cost second respondent party party basis certify preceding eleven 11 numbered paragraph true copy reason judgment herein honourable justice bennett associate dated 4 june 2004applicant appeared personno appearance first respondentcounsel second respondent v heathsolicitor second respondent deaconsdate hearing 6 april 2004date receipt submission 26 may 2004date judgment cost 4 june 2004
Virk (Migration) [2019] AATA 6647 (23 December 2019).txt	virk migration 2019 aata 6647 23 december 2019 last updated 20 march 2020virk migration 2019 aata 6647 23 december 2019 decision recorddivision migration refugee divisionapplicant mr fariyad singh virkcase number 1832641home affair reference bcc2018 3953746member genevieve clearydate 23 december 2019place decision perthdecision tribunal set aside decision review substitute decision cancel applicant subclass 500 student visa statement made 23 december 2019 6 41amcatchwordsmigration cancellation student temporary class tu subclass 500 student maintain enrolment deferment refused insufficient ielts result change course improve english intend return nursing assaulted mental health issue returned india medical care overall complied condition weight regarding inconsistency decision review set asidelegislationmigration act 1958 cth 116migration regulation 1994 cth schedule 8 condition 8202statement decision reasonsapplication reviewthis application review decision dated 1 november 2018 made delegate minister home affair cancel applicant subclass 500 student visa unders 116 1 b themigration act 1958 act delegate cancelled visa basis applicant came australia complete packaged course would provide qualification aqf level 7 time decision enrolled course aqf level 4 thereby registered course relation visa grant based issue present case whether ground cancellation made whether visa cancelled theapplicant appeared tribunal 17 june 2019 give evidence present argument applicant represented relation review registered migration agent prior hearing applicant sent tribunal decision record delegate hearing applicant provided tribunal copy passport medical letter 2016 2017 hearing applicant provided tribunal copy diploma health science edith cowan university diploma business perth institute business technology email chain regarding application deferral 2018 coming decision tribunal also regard department file following reason tribunal concluded decision cancel applicant visa set aside consideration claim evidencethe issue present case whether applicant holder student visa breached condition 8202 schedule 8 themigration regulation 1994 regulation applicant breached condition unders 116 1 act visamaybe cancelled applicant comply condition 8202 condition 8202 applies case set attachment decision relevantly requires applicant enrolled full time registered course 8202 2 must maintain enrolment registered course completed provide qualification australian qualification framework level higher level registered course relation visa granted 8202 2 b andhas certified education provider achieving satisfactory course progress specified 8202 2 c andhas certified education provider achieving satisfactory course attendance specified 8202 c ii applicant visa granted basis enrolled packaged course diploma science health study bachelor science nursing would provide qualification aqf level 7 present case applicant visa cancelled basis applicant maintained enrolment registered course level higher level registered course relation visa granted delegate decision outlined provider registration international student management system prism indicated applicant enrolled certificate iv commercial cookery aqf level 4 5 october 2018 delegate indicated information prism indicated confirmation enrolment bachelor science nursing cancelled 14 august 2017 5 october 2018 department sent applicant notification intention consider cancellation noicc response noicc 19 october 2018 noted delegate applicant told department applied deferral study semester one 2018 however application rejected therefore delegate note applicant hold enrolment registered course 2018 enrolled certificate iv commercial cookery 10 september 2018 registered course three aqf level registered course relation visa granted delegate also noted time decision enrolled higher level course hearing application applicant told tribunal deferred course july 2017 february 2018 went india treatment injury applied deferral first semester 2018 said india seeking treatment injury approximately february march 2018 found deferral refused could start course india returned india asked could start bachelor nursing however ielts score insufficient could start decided commence course lower level prepare tested relation english intention therefore return later date bachelor nursing therefore completed diploma science descended several level commence certificate iv course commercial cookery applicant confirmed hearing tribunal understood requirement visa relation progression agreed therefore breached visa condition evidence tribunal applicant complied condition visa 8202 two ground cancellation unders 116has made consideration discretion cancel visahaving found applicant complied condition visa tribunal must consider whether visa cancelled matter specified act regulation must considered exercise discretion tribunal regard circumstance case including matter raised applicant matter department procedure advice manual pam3 general visa cancellation power purpose visa holder travel stay australia whether visa holder compelling need travel remain australiathe applicant arrived india january 2014 year 12 qualification 18 19 year old granted student temporary class tu student subclass 500 visa applicant came australia better practical education felt indian education relied heavily book enabled people copy student work without sanction parent supported member family financially supported move australia continues study father pay education applicant wanted complete study business australia however commenced study realised much competition business world decided change nursing felt would always need nurse completed diploma business however complete bachelor business change course direction meant first visa expired needed apply second visa order continue studying second visa granted 18 april 2017 subject application tribunal accepts young student may struggle away home attempting tertiary study foreign language tribunal also accepts young student always know really want study leave school may change direction change course course provider failure unit reasonable circumstance tribunal place weight applicant realisation wish pursue business study completed qualification area neither tribunal place weight applicant able initially fulfil english requirement bachelor nursing course wanting study gain qualification course australia reasonable desire someone another country tribunal satisfied applicant compelling reason wanting travel study australia remaining australia study ultimately nursing addressed reason applicant enrolled certificate iv commercial cookery noted delegate decision record applicant told department noicc intended enrol higher level study hospitality industry however applicant told tribunal always intended return nursing enrolled lower level hospitality course improve english maintain ongoing enrolment albeit lower level required tribunal note inconsistency applicant told department told tribunal tribunal place much weight inconsistency change direction hospitality suggest attempt maintain ongoing residence australia rather genuine desire study nursing therefore compelling need remain australia tribunal satisfied overall given tribunal finding reason applicant changing course hospitality inconsistency outweigh finding tribunal made applicant compelling reason study remain australia circumstance ground cancellation arose cancellation considered relationship breakdown whether relationship broken result family violence guideline indicate general rule visa cancelled circumstance ground cancellation arose beyond visa holder controlon 6 may 2016 applicant seriously assaulted driving taxi hit head iron bar left eye medical document provided tribunal applicant show deep laceration left eye sutured ct scan normal however continued complain pain around eye swelling continued blurred vision several day attack reported edith cowan university student health service scared unable concentrate referred psychologist subsequent medical check showed continued blurred vision paralysis left eyebrow 16 may 2016 referred back midland hospital check continued visit student health service left sided headache stress possibly according health service due post traumatic stress disorder point suggested necessary defer upcoming university exam referred plastic surgery unit another hospital relation paralysis eye clinic regarding double vision continued take medication pain management 28 july 2016 medication still controlling pain opinion student health service continuing headache double vision stress restricting life would take time able return pre injury employment given taxi driver doctor reported taken month driving taxi however attempted return taxi driving applicant told doctor although driving needed take regular rest driving overcome headache dizziness doctor also reported although decided attempt complete university course exam managing applicant told tribunal wanted defer exam wanted get study outlined elsewhere reason failed least one exam passed examination applicant continued attend student health service edith cowan university july 2017 july 2017 applicant reported pain forehead approximately 50 better paralysis declined also reported double vision declining continued see psychologist stress also improving despite opinion pain specialist unlikely regain sensation forehead time applicant also meditated temple music attempt control pain experiencing july 2017 applicant told doctor student health service felt able move life pain paralysis stable however doctor still considered needed determine whether wished study full time whether needed reduce workload part time doctor view time longer required counselling psychologist addition medical report 29 may 2017 edith cowan university medical health service provided medical certificate certifying would applicant interest defer bachelor nursing course return india spend time family commence course 2018 applicant attended 25 psychological session 9 may 2016 12 september 2017 psychologist determined symptom consistent post traumatic stress disorder symptom would contributed range emotional behavioural anomaly impacting personal social professional life applicant reported psychologist symptom pain double vision described also lack motivation low feeling high level stress depression cry loss confidence driving working living constant fear particularly given injured workplace also reported nightmare symptom surrounding workplace exacerbated applicant needed work support also reported suffering panic attack relation employment applicant psychologist recommended return full time work within next 12 month report september 2017 psychologist recommended applicant return india holiday family assist recovery within background applicant continued study however say struggled could complete exam pain failed exam leave however allowed sit exam passed although mark good would liked also failed one exam trouble sleeping exam also passed graduated diploma course middle 2017 thought given difficulty battling medical problem defer bachelor course applied deferment approved deferred attempted rectify medical problem given medical documentation provided tribunal tribunal accepts applicant evidence assault serious long lasting effect study health work tribunal satisfied neither assault resulting effect applicant within applicant control finding given significant weight favour however tribunal also accepts appears delegate decision may reason failing commence bachelor nursing course end 2017 applicant felt still unable resume full time study applied deferral also returned india received medical attention uncle informed parent reluctant return felt would receive better medical care australia found good doctor india supplied tribunal medical document showing treatment doctor stayed india month applicant asked tribunal reason refusal deferral relation semester one 2018 first applicant said reached required level english however subsequently said thought unable defer twice one course tribunal asked applicant send copy email correspondence received regarding deferral bachelor nursing 2018 applicant forward tribunal email chain commencing 21 february 2018 tribunal provided initial question asked therefore immediately clear email chain exactly applicant refused semester one 2018 deferral response first provided email applicant thanks applicant request deferral say application reassessed semester two 2018 due course deemed eligible new admission period new offer letter issued next email applicant dated 8 march 2018 asks whether start study semester one 2018 response university met condition offer unable commence semester one mention university condition met given applicant evidence appears yet met condition english competency email university dated 12 march 2018 told applicant met condition offer semester one 2018 application defer offer semester two assessed approved tribunal accepts therefore email provided applicant tribunal applicant evidence appear applicant every intention maintaining enrolment bachelor nursing unable maintain enrolment unable fulfil one requirement likely requisite standard english applicant decided enrol certificate iv commercial cookery thought could improve english level score completing course would mean studying thus least partly satisfying requirement visa however course commenced notified visa cancelled unable study learnt unable study moved broome told tribunal struggling financially pain suffering still wanted quieter place able study apply number university study travel live wherever offered place applicant told tribunal able study nursing bridging visa would still intends complete bachelor nursing visa returned want regional nurse like country life india australia like idea many people knowing small town course take 2 21 2 year given already completed diploma course completed course return india family family also need get married although nothing yet organised applicant told tribunal still feel effect assault particularly relation lack feeling forehead however learnt live effect feel able commence study although sure effected given concerned wasted time australia simply told tribunal press tribunal satisfied reason failure commence bachelor nursing combination effect assault inability satisfy english requirement therefore earlier within control could said failure reach requisite english standard may within control however applicant given explanation reason enrolled hospitality course partly wanted use improve english tribunal satisfied reasonable reason case applicant attempt ameliorate effect lack english standard factor within control tribunal give explanation factor weight favour doubt period applicant suitably enrolled significant lengthy breach condition 8202 must given weight towards visa cancelled reason given however tribunal accepts explanation given lack appropriate enrolment find reasonable explanation circumstance weighing factor tribunal find weight rest visa cancelled extent compliance visa conditionsthe applicant returned 2016 see family assault 2017 month medical treatment worked taxi driver australia however stopped time assault also worked manager pasta shop time hearing tribunal working pasta shop closed worked since applicant told tribunal applied visa either australia entry elsewhere information tribunal suggest applicant breached condition visa visa tribunal satisfied applicant lack appropriate educational progression complied visa condition addition enrolment significantly lower level course fact applicant enrolled course deferment declined course cancelled favour compliance relation visa condition also favour tribunal acknowledges breach condition 8202 2 significant weighed reason breach relatively quick enrolment another course albeit lower level tribunal find breach outweighed factor degree hardship may caused financial psychological emotional hardship return without degree return india start spending 2 4 year getting qualification belief indian institution recognise diploma science currently supported friend family sending money able finish said wasted 5 year tribunal accepts visa cancellation would cause stress student family tribunal also accepts cancellation visa disappointing significant amount money invested person order set country live independently order study tribunal give consideration little weight towards visa cancelled past present behaviour visa holder towards departmentaccording decision record department evidence applicant uncooperative towards department evidence tribunal suggest adverse conduct towards department give little weight favour applicant responded noicc within time extension provided detailed information medical problem department however department concerned applicant take opportunity contact department deferral declined tribunal accepts applicant admitting aware requirement progression study also believed least partially complying condition therefore contacting department perhaps tribunal place weight circumstance whether would consequential cancellation 140this factor relevant give weight whether mandatory legal consequence whether cancellation would result visa holder unlawful liable detention whether indefinite detention possible consequence cancellation whether provision act prevent person making valid visa application without minister interventionif current visa cancelled result following applicant become unlawful noncitizen liable detention section 189 removal section 198 act applicant limited option apply visa australia applicant fall within criterion whereby penalty breach condition may imposed applicant could therefore subject three 3 year exclusion period eligible temporary visa application approved applies visa requires public interest requirement 4013 met tribunal give little weight consideration favour applicant intended consequence legislation visa cancelled ground reflects seriousness department take type cancellation ground andthe applicant eligible apply bridging visa make arrangement depart australia therefore likelihood detention event cooperate applying bridging visa whether international obligation including non refoulement best interest child primary consideration would breached result cancellationthe applicant said come study would like complete bachelor course return india applicant indicate reason fear returning india tribunal satisfied international obligation breached cancellation tribunal give weight factor child therefore consideration best interest child relevant case permanent visa whether former visa holder strong family business tie australiathis factor relevant tribunal give weight relevant mattersthere relevant matter tribunal tribunal unable place weight consideration considering circumstance whole tribunal concludes visa cancelled decisionthe tribunal set aside decision review substitute decision cancel applicant subclass 500 student visa genevieve clearymemberattachmentmigration regulation 1994 schedule 8 1 holder must enrolled full time course study training holder defence student b foreign affair student c secondary exchange student 2 holder covered subclause 1 must enrolled full time registered course b subject subclause 3 must maintain enrolment registered course completed provide qualification australian qualification framework level higher level registered course relation visa granted c must ensure neither following subparagraphs applies respect registered course undertaken holder education provider certified holder registered course undertaken holder achieving satisfactory course progress forsection 19of theeducation service overseas student act 2000and relevant standard national code made education minister undersection 33of act ii education provider certified holder registered course undertaken holder achieving satisfactory course attendance forsection 19of theeducation service overseas student act 2000and relevant standard national code made education minister undersection 33of act 3 holder taken satisfy requirement set paragraph 2 b holder enrolled course australian qualification framework level 10 b change enrolment course australian qualification framework level 9
Ss [2002] MRTA 5139 (2 September 2002).txt	s 2002 mrta 5139 2 september 2002 last updated 6 march 2003 2002 mrta 5139catchwords review visa refusal subclass 104 remaining relative usually residereview applicant visa applicant tribunal migration review tribunalpresiding member suseela durvasulamrt file number n00 02790dept file number f98 018222date decision 2 september 2002at sydneydecision tribunal affirms decision review finding visa applicant entitled grant preferential relative migrant class ay subclass 104 preferential family visa tribunal directs information would identify applicant including information family friend associate published undersection 378of themigration act 1958 public interest identifying person made application refugee status mean decision published name identifying material must removed modified published version decision statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural affair delegate primary applicant applied preferential relative migrant class ay visa 3 february 1998 primary application included primary applicant wife secondary applicant primary applicant child delegate decision refuse grant visa made 9 march 2000 jurisdiction standing2 review applicant sponsor lodged application review tribunal 31 may 2000 decision reviewable tribunal application review properly made person standing apply review legislation policy3 themigration act 1958 act various regulation made act principally themigration regulation 1994 regulation provide different class visa criterion grant visa reaching decision tribunal bound act various regulation written direction issued minister section 499 act matter may subject departmental policy found publication theprocedures advice manual 3 pam3 themigration series instruction msis produced department immigration multicultural indigenous affair department tribunal required regard policy apply unless cogent reason departing policy 4 tribunal power affirm vary set aside decision refuse grant visa also power remit application visa department reconsideration remittal may accompanied direction visa applicant meet one criterion visa matter minister delegate consider remaining criterion review tribunal generally limited consideration whether visa applicant meet one essential criterion application remitted decision affirmed basis 5 criterion policy material immediately relevant review legislation item 1125 preferential relative migrant class ay schedule 1part 1to regulationspart 104of schedule 2 regulationsregulation 1 15of regulation definition remaining relative departmental policy procedure advice manual 3 schedule 2 preferential family visa 104procedures advice manual 3 part 1division 1 2 regulation 1 15 interpretation remaining relativecases koitaki para rubber estate limited v federal commissioner taxation 1941 hca 13 1941 64 clr 241r v barnet london borough council ex parte shah 1983 2 ac 309gauthiez v minister immigration ethnic affair 1994 53 fcr 512leung v minister immigration multicultural affair 2001 fca 16916 tribunal generally regard regulation stood time visa application however subsequent amendment may apply circumstance 7 generally member family unit applied visa together least one visa applicant must meet primary criterion visa applicant need meet secondary criterion 8 clause 104 211 provides part time application visa applicant remaining relative another person validly sponsored visa applicant grant visa sponsor must settled australian citizen australian permanent resident eligible new zealand citizen clause 104 221 provides visa applicant must continue satisfy criterion clause 104 211 time decision 9 term remaining relative defined inregulation 1 15 tribunal generally regard regulation stood time visa application however subsequent amendment may apply circumstance definition remaining relative amended 1999 sr 250 1999 according transitional provision amended definition applied application class ay visa made 1 november 1999 finally determined date tribunal therefore applied definition remaining relative introduced 1 november 1999 10 definition state follows regulation 1 15 remaining relative 1 applicant visa remaining relative another person australian citizen australian permanent resident eligible new zealand citizen applicant satisfies minister person parent brother sister step parent step brother step sister applicant b person usually resident australia c applicant applicant spouse overseas near relative applicant applicant spouse usually reside country australia different country relative resides ii neither applicant applicant spouse contact relative within reasonable period making application applicant applicant spouse together 3 overseas near relative e applicant child turned 18 ii adopted australian citizen australian permanent resident eligible new zealand citizen adoptive parent overseas time making application adoptive parent residing overseas period least 12 month 2 regulation overseas near relative relation applicant mean person parent brother sister step parent step brother step sister applicant applicant spouse b child including step child applicant applicant spouse child turned 18 dependent child applicant applicant spouse ii turned 18 wholly substantially daily care control applicant applicant spouse relative kind c australian citizen australian permanent resident eligible new zealand citizen usually resident australia 3 purpose paragraph 1 c overseas near relative taken reside last known country residence unless applicant satisfies minister relative resides another country 11 definition remaining relative set following requirement must met visa applicant visa applicant must relative brother sister parent step brother step sister step parent relative must australian citizen australian permanent resident eligible new zealand citizen usually resident australia visa applicant spouse overseas near relative must reside country different country relative resides must contact overseas near relative reasonable period preceding application visa applicant spouse together must three overseas near relative visa applicant child turned 18 adopted australian adoptive parent overseas time application adoptive parent must residing overseas period least 12 month 12 discussed requirement sub paragraph 1 15 2 c requires tribunal make finding primary applicant spouse usually reside country australia different country overseas near relative reside 13 usually reside defined legislation tribunal therefore regard number court decision discussed meaning similar term 14 full bench high court inkoitaki indicated two element must present find person usually resident first physical presence particular place second intention treat place home least time necessarily forever 15 inex parte shahlord scarman 343 344 discussed term ordinarily resident following term ordinarily resident refers man abode particular place country adopted voluntarily settled purpose part regular order life time whether short long duration 16 passage cited approval gummow j ingauthiez honour also stated course one important exception man presence particular place country unlawful e g breach immigration law cannot rely unlawful residence constituting ordinary residence 17 mere circumstance person retains citizenship particular country without indicate resident country gauthiez 18 inleung federal court stated circumstance tribunal may consider whether person voluntarily residing particular country mansfield j stated time living particular place choice circumstance would necessary regard matter determining place usual residence time may period degree involved assessment consider therefore tribunal required address issue voluntariness issue emerged time immediately applicant entered australia applicant may adopted voluntarily settled purpose hong kong part regular order life evidence19 tribunal following document mrt case file n00 02790 folio numbered 1 74departmental file f98 018222 folio numbered 1 80 20 visa application lodged 3 february 1998 27 june 1998 secondary applicant gave birth child subsequently included primary application 21 primary applicant claim remaining relative brother review applicant sponsored primary applicant grant visa 22 evidence file show primary applicant father deceased mother three sibling australian permanent resident two sibling australian citizen evidence primary applicant family 23 relation family primary applicant spouse evidence file show father deceased time application mother one sister resided iraq one brother missing iraq since 1988 one brother thailand two sibling australian citizen living australia afterwards evidence provided secondary applicant brother initially put residing thailand granted australian permanent residence 21 march 1998 primary applicant claimed wife family 24 8 december 1999 senior migration officer australian embassy beirut interviewed primary applicant amman jordan interview primary applicant stated family living jordan since 17 september 1997 family moved jordan specific intention going australia stated wife mother sister live iraq neither wife contact since marriage 1994 25 primary application refused 9 march 2000 delegate refused visa delegate satisfied primary applicant met definition remaining relative inregulation 1 15 delegate accept primary applicant claim neither secondary applicant contact secondary applicant sister mother iraq 26 application review lodged tribunal 31 may 2000 26 june 2000 review applicant representative provided submission support application review representative also provided number statutory declaration secondary applicant sibling state primary applicant wife contact mother sister since 1994 27 tribunal held hearing 11 june 2002 tribunal took evidence primary applicant primary applicant wife review applicant primary applicant mother secondary applicant sister primary applicant cousin 28 visa applicant gave evidence summarised follows family left iraq jordan september 1997 family left iraq intend return left iraq problem government worked iraq engineer family house baghdad sold left arrived jordan temporary visa expired six month living jordan illegally wife able work jordan illegally supported money sent australian relative child cannot attend school illegally live rented apartment arriving jordan family applied humanitarian visa australian embassy 1998 application rejected may 1999 family moved jordan intention settle went jordan purpose applying visa come australia claim usually resident jordan time application 29 primary applicant wife review applicant confirmed detail evidence finding reasons30 time visa application lodged class ay contained one subclass subclass 104 preferential family visa application made basis primary applicant claimed remaining relative review applicant evidence suggest visa applicant meet ground grant subclass 104 visa 31 tribunal firstly determine whether primary applicant meet definition remaining relative time application see clause 104 212 32 tribunal satisfied time application visa applicant sponsored brother review applicant tribunal satisfied sponsor settled australian permanent resident usually resident australia tribunal therefore satisfied visa applicant meet first part remaining relative definition paragraph 1 b theregulation 1 15 33 relation paragraph 1 15 1 c tribunal must determine following issue primary applicant spouse usually resided time application whether primary applicant spouse overseas near relative time application whether visa applicant spouse usually resided country different country overseas near relative resided 34 tribunal firstly determine primary applicant spouse usually resided time application 35 time application primary applicant family citizen iraq tribunal mindful citizenship alone determine person usual country residence regard evidence regarding primary applicant tie iraq left iraq primary applicant held permanent job owned property iraq child attended school spouse living iraq life left jordan contrast time application primary applicant spouse spent relatively short period time five month jordan tribunal regard applicant evidence intend return iraq left however tribunal considers factor outweighed evidence demonstrates primary applicant still tie iraq time application basis evidence tribunal find time application primary applicant spouse usually resided iraq 36 primary applicant claim usually resident jordan time application tribunal unable accept claim several reason 37 firstly time application primary applicant family living jordan le five month 38 secondly time application primary applicant held temporary visa evidence would expired 17 march 1999 six month arrival primary applicant subsequently became illegal resident jordan date federal court stated person country unlawfully cannot rely unlawful residence constituting ordinary residence seegauthiez evidence tribunal primary applicant taken step regularise immigration status jordan 39 thirdly primary applicant evidence never intention settling jordan primary applicant moved jordan particular purpose using country base apply visa come australia voluntarily adopt jordan part regular order life seeex parte shahandleung high court stated intention treat particular place home key aspect determining whether person usually resident seekoitaki mere physical presence enough case tribunal satisfied primary applicant ever held intention treat jordan home 40 fourthly primary applicant evidence tie jordan unable work child attend school tribunal accepts situation partly due primary applicant immigration status jordan however rented accommodation evidence tribunal primary applicant established tie jordan 41 given visa applicant limited tie jordan limited period time spent jordan time application immigration status jordan time application lack intention settle tribunal satisfied applicant usually resident jordan time application 42 tribunal made finding primary applicant spouse usually resident iraq time application tribunal must determine whether primary applicant spouse overseas near relative time application also usually resident iraq basis information provided primary applicant lodging visa application tribunal find time application mother sister primary applicant spouse also usually resident iraq definition overseas near relative subregulation 1 15 2 includes parent sister therefore tribunal find time application primary applicant spouse together two overseas near relative usually resided country iraq 43 tribunal therefore find time application primary applicant spouse usually reside country australia wasdifferentto country overseas near relative resided therefore primary applicant satisfy sub paragraph 1 15 1 c regulation 1 15 time application therefore unnecessary tribunal consider issue whether primary applicant spouse contact spouse family 44 primary applicant satisfy one key requirement remaining relative definition regulation 1 15 tribunal find remaining relative time application therefore meet clause 104 211 time application view finding necessary tribunal determine whether primary applicant meet definition remaining relative time decision 45 evidence tribunal secondary applicant meet primary criterion grant visa 46 given finding made earlier observation tribunal alternative affirm decision review primary applicant meet essential criterion grant visa decision47 tribunal affirms decision review finding visa applicant entitled grant preferential relative migrant class ay visa
Bourlotos v Monash CC & Ors [2009] VCAT 1431 (24 July 2009).txt	bourlotos v monash cc or 2009 vcat 1431 24 july 2009 last updated 3 august 2009victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p72 2009permit application 36505catchwordsapplication unders 82of theplanning environment act 1987against council notice decision grant permit use develop car wash monash planning scheme industrial 1 zone amenity impact nearby dwelling applicantpeter anastasia bourlotosresponsible authoritymonash city councilrespondentmichael redwansubject land1434 dandenong road oakleighwhere heldmelbournebeforechristina fong memberhearing typemerits hearingdate hearing6 july 2009date order24 july 2009citationbourlotos v monash cc or 2009 vcat 1431orderthe decision responsible authority varied permit granted use development three 3 bay hand car wash detailing business 1434 dandenong road oakleigh generally accordance endorsed plan subject condition contained notice decision grant permit 36505 issued responsible authority 17 december 2008 modified following condition 15 revised read follows prior commencement use developer cost must construct 3 metre high acoustic fence along southern boundary subject site satisfaction responsible authority fence must constructed 125 x 125 red gum post 4 row 75 x 50 hardwood rail 100 x 25 plinth board 150 x 25 plinth cover 150 x 25 pine plank butted together 50 x 25 pine cover strap plank butt joint additional condition inserted condition 15 15a acoustic fence pursuant condition 15 completed must maintained satisfaction responsible authority responsible authority directed issue permit accordance order provision ofsection 85 1 b theplanning environment act 1987 christina fongmemberappearances applicantsmr peter bourlotos appeared person responsible authoritymr vijay soma town planner city monashfor respondentmr john mcmullan solicitor reasonsbackgroundthis application undersection 82of theplanning environment act 1987against council notice decision grant permit use develop land 1434 dandenong road oakleigh three bay hand car wash preliminary mattermr mcmullan requested tribunal call mr michael redwan operator proposed car wash give evidence operation proposed car wash whilst council object mr redwan called mr bourlotos mr mcmullan decided withdraw request review sitethe review site located southwest corner dandenong road atkinson street oakleigh regular shape frontage 15 63 metre dandenong road frontage 46 63 metre atkinson street site area approximately 750 sq single storey building located southern end land previously used office car sale yard operated site land currently vacant property west commercial property used commercial purpose vacant south land 3 7 metre row residential property atkinson street review applicant resident dwelling south row 97 atkinson street dandenong road major arterial road atkinson street local collector street figure 12 000 vehicle per day using atkinson street quoted proposalthe proposal use land three bay hand car wash existing single storey building south west corner used office customer waiting area table chair self service coffee drink work involved include roofing car wash bay two 10000 litre water tank two vacuum cleaning unit new 3 metre wide crossing atkinson street three staff parking space provided original proposed operating hour 9 00am 6 00pm monday sunday mr mcmullan accepted council condition allows operation 8 00am 6 00pm monday friday 9 00am 6 00pm saturday 10 00am 4 00pm sunday planning scheme provision policiesthe review site industrial 1 zone monash planning scheme scheme pursuant clause 33 01 1 permit required industry land meet following distance land road residential zone business 5 zone capital city zone dockland zone land use hospital education centre land public acquisition overlay acquired hospital education centre threshold distance purpose listed table clause 52 10 30 metre purpose listed table clause 52 10 must adversely affect amenity neighbourhood including transport material good commodity land appearance stored good material emission noise artificial light vibration odour fume smoke vapour steam soot ash dust waste water waste product grit oil threshold distance specified clause 52 10 car wash default distance 30 metre adopted council site within 30 metre residential property south therefore permit required proposal car wash provision clause 52 13 car wash apply clause imposes requirement crossover queuing lane discharge waste visual presentation building landscaped buffer residential property requirement cannot varied unless responsible authority considers better solution relevant provision policy scheme clause 17 03 industry 19 03 design built form 21 07 industrial strategic objective 22 03 industry business development character policy 22 08 outdoor advertising policy 65 review hearingat hearing party spoke written submission hearing tribunal provided additional document extract scheme letter recommendation mr redwan car wash performance traffic report car wash 1 submitted review applicant decision division tribunal decision reserved tribunal would inspect site carried basis decisionthe issue review amenity impact adjacent residential property proposed car wash usethe tribunal accepts council argument proposed use appropriate one confined site industrial 1 zone located major arterial road multiple existing crossover onto dandenong road atkinson road replacement previous car sale yard mr mcmullan indicated stretch dandenong road exactly thriving building unable leased tribunal note notice decision grant permit issued council subject 16 condition condition 1 requires modification submitted plan improve location safety traffic circulation within site detail signage condition require detail drainage management three metre high acoustic fence design construction specified council staff member site direct traffic limit hour operation hour 8am 6pm monday fridays9am 6pm saturday and10am 4 pm sunday shortcoming proposed usethe review applicant resident south review site 97 atkinson street property separated review site 3 7 metre approximately wide laneway laneway provides rear access commercial property facing dandenong road dwelling face logie street submission focussed following shortcoming queuing lane proposal unable provide queuing lane 10 vehicle entry car wash bay fact designated queuing lane inadequate car parking provided site increasing parking pressure atkinson street traffic impact greatest impact weekend would seek trading sunday car wash located commercial area significant physical separation neighbouring property dangerous practice discharging vehicle prince highway within statutory stopping area council support proposal term traffic based limited amount vehicle movement generated three bay car wash think volume generated inappropriate dandenong road atkinson street local collector placed permit condition requiring staff member act traffic controller ensure vehicle queuing access car wash would orderly fashion council satisfied would reduce traffic congestion car spilling onto atkinson street review applicant ground requested staff member accredited traffic controller council think necessary tribunal agrees given status dandenong road major arterial atkinson street local collector two road traffic channelled capacity handle high volume traffic accepts mr mcmullan argument customer simply leave premise washing bay waiting bay full accredited traffic controller tribunal doubt whether necessary big complex operation merely need someone direct vehicle washing bay leave place full term queuing lane council accepts queuing lane 10 space recommended clause 52 10 submitted least 6 space available customer waiting 9 space vacuum bay front wash bay used also imposed condition line marking queuing space mr mcmullan cited number case division tribunal examined matter queuing lane determined shortcoming fatal tribunal examined council analysis case cited mr mcmullan position site size proposed car wash 3 bay form view providing 10 queuing space fatal dangerous practice discharging traffic dandenong road within stopping area proposal using existing crossover change current traffic entry exit arrangement onto dandenong road fact proposal improve traffic condition atkinson street remove two existing crossover near signalised intersection dandenong road new crossover south near row amenity impactto reduce amenity impact dwelling review applicant requested amendment condition following area operating hourshe seek operating hour 9am 6pm monday saturday trading sunday mr mcmullan submitted sunday trading crucial viability business council approved hour 8am start sunday trading 10am 4pm submitted earlier start required permit condition weekday compromise reduced hour weekend also noted place permit condition 3 metre high acoustic fence help ensure noise impact minimised tribunal agrees council mr mcmullan allowing trading sunday unreasonable site industrial 1 zone located intersection major highway zoned road zone category 1 collector road residential amenity nearby property subject condition tribunal note acoustic fence required permit protect amenity dwelling south row atkinson street purpose ensuring minimal noise disturbance tribunal amend condition 15 fence erected prior commencement use fence maintained satisfaction responsible authority tribunal note noise may affect review applicant property come source well include traffic dandenong road atkinson street industrial business use row review site property conclusionthe proposal use vacant land building site three bay car wash land industrial 1 zone abutting road zone category 1 tribunal support council notice decision grant permit subject amendment requiring acoustic fence constructed prior commencement use fence maintained decisionthe decision responsible authority grant permit subject amended condition upheld christina fongmember 1 report tabled mr bourlotos 2007 report john piper traffic pty ltd car wash 2 springvale road aspendale garden another also john piper pty ltd car wash 38 camberwell road hawthorn east dated 2005
N93_02441 [1994] RRTA 1468 (18 July 1994).txt	n93 02441 1994 rrta 1468 18 july 1994 refugee review tribunaldecision reason decisionrrt reference bn93 2441tribunal member kay ransomedate 18 july 1994place sydneydecision 1 1 tribunal affirms decision review applicant refugee convention relating status refugee done geneva 28 july 1951 amended protocol relating status refugee done new york 31 january 1967 2 tribunal affirms decision review domestic protection temporary entry permit granted applicant reason decisionthe decision reviewthis application review decision made delegate minister immigration ethnic affair 29 april 1993 applicant refugee united nation convention relating status refugee done geneva 28 july 1951 convention amended protocol relating status refugee done new york 31 january 1967 protocol date application domestic protection temporary entry permit dptep also refused applicant national people republic china china entered australia 28 december 1989 student according movement record department immigration ethnic affair granted entry permit extended 21 july 1991 application refugee status received department immigration ethnic affair 13 june 1991 virtue provision regulation 22d themigration regulation applicant also deemed applicant dptep noted application refused 28 may 1993 application review decision lodged refugee status review committee application transferred tribunal new review arrangement came force 1 july 1993 applicant appeared hearing tribunal 11 july 1994 backgroundthe applicant born shanghai 1954 since leaving school 1972 worked electrician factory shanghai cultural revolutionin 1957 applicant father labelled rightist chinese government time applicant three year old became ill mother father look obtain appropriate medical treatment suffered deformity leg cultural revolution applicant mother accused spy relative overseas detained red guard beaten paraded street exiled remote place countryside 1968 forced engage hard labour applicant permitted sit university entrance examination 1977 1978 thus missed university education applicant told tribunal carry effect cultural revolution still bear mental scar said event time formed hatred chinese communist party ccp 1989 pro democracy movementin application refugee status lodged june 1991 applicant stated took part demonstration shanghai 18 30 may 1989 also donated money support student hunger strike 4 june work unit discovered done repeatedly questioned security officer work unit urged repent interview officer department immigration ethnic affair conducted 18 march 1993 applicant said shift worker able attend demonstration outside working hour said also attended mourning service 9 june 1989 people square shanghai said investigated work unit evidence punishment received could obtain pay rise hearing tribunal applicant stated pro democracy movement made leaflet newspaper clipping overseas publication also recorded broadcast bbc voice america radio australia gave student also met group people knew mr wang ruowang dissident writer exchange opinion circulate news activity given warning party committee work unit requested behave occurred prior 4 june following 4 june questioned party committee involvement pro democracy movement everybody work unit questioned said investigation intensified late 1989 time denied pay rise got automatically working ten year applicant difficulty leaving china said evidence time said major investigation shanghai occur early 1990 time australia activity australiathe applicant little involvement chinese pro democracy activity australia 1990 attended demonstration april june commemorate killed beijing june 1989 never member chinese pro democracy organisation sydney association wang ruowangin submission received department immigration ethnic affair 16 march 1993 applicant stated got know mr wang stated often visited home mr wang wife feng suying yang zhi discussed political topic lost contact mr wang following 4 june 1989 mr wang surveillance submission applicant also stated arrival australia eve chinese new year sent letter mr wang wife talked western democratic system hatred ccp applicant attended memorial rally 4 june 1990 sydney town hall following sent another letter mr wang describing pro democracy activity australia political view also criticised ccp receive reply letter stated long read newspaper mr wang detained stated realised consequence letter intercepted chinese government stated one main reason lodged refugee application applicant also stated met mr wang yang zhi visited australia end 1992 told arrested january 1990 letter addressed opened applicant asked tribunal came know mr wang replied mr wang wife yang zhi technician another factory applicant dealing work said casual contact yang zhi led friendship mr wang said time frequent contact went house also spent holiday would often discus political matter following 4 june mr wang surveillance applicant contact going overseas want come suspicion inform mr wang coming australia said found mr wang arrest july august 1990 would written letter known mr wang arrested applicant asked tribunal knew arrest prior lodging refugee application 1991 mentioned association mr wang 1993 replied 1992 knew letter intercepted furthermore claim application incomplete realise serious matter applicant provided copy article contained inthechinese heraldof 10 march 1993 reported detention shanghai march 1991 sun li fu jiqing friend associate wang ruowang yang zhi stated thing would happen return china applicant also provided document purport facsimile wang ruowang new york applicant dated 17 march 1993 facsimile refers newspaper article sun li fu jiqing state applicant returned china chinese security personnel would let go unpunished legislative frameworksection 22aa migration act provides minister satisfied person refugee minister may determine writing person refugee refugee defined 4 1 act meaning article 1 refugee convention article amended refugee protocol subsection act defines refugee convention refugee protocol respectively convention relating status refugee done geneva 28 july 1951 protocol relating status refugee done new york 31 january 1967 far relevant present matter article 1 convention amended protocol provides refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return inchan yee kin v minister immigration ethnic affair 1989 hca 62 1989 169 clr 379the high court stated whether applicant refugee status determined light fact existing time determination required 399 dawson j stated circumstance applicant recognition refugee status fled country nationality ordinarily starting point ascertaining present status time satisfied test laid absence substantial change circumstance meantime point continuation original status inchan scase court addressed meaning phrase well founded fear persecution court held phrase encompassed subjective fear persecution part applicant objective foundation fear held fear persecution well founded real chance persecuted return country nationality 389 per mason cj 398 per dawson j 407 per toohey j 429 per mchugh j real chance one substantial distinct remote chance 389 per mason cj one remote insubstantial 407 per toohey j far fetched possibility 429 per mchugh j well founded fear persecution exists must one reason set definition race religion nationality membership particular social group political opinion arises solely reason applicant fall within definition regardless suffering may endure bookthe law refugee status j c hathaway pp 104 105 defines persecution sustained systemic violation basic human right demonstrative failure state protection consistent comment term persecution made inchan case mason cj 388 refers serious punishment penalty significant detriment disadvantage return obviously harm threat harm part selective course harassment person whether individually member group subjected harassment reason membership group amount persecution done convention reason conclusionscultural revolutionthe tribunal accepts applicant family along many others china subjected persecution cultural revolution tribunal also accepts experience left permanent mark upon applicant however circumstance changed substantially china since time tribunal find applicant continue suffer persecution kind due background although applicant claimed unable obtain university education noted employment left china also able obtain passport travel overseas tribunal give weight opinion michael yahuda inpeople republic china recent history regional survey world far east australasia 1993 page 189 sweeping campaign target individual suspicious background feature chinese life since cultural revolution third plenum ccp late 1978 rightly regarded one major turning point history people republic set motion series reform brought fundamentally new political economic order set stage soundly based programme economic reform could take place background greater institutional regularity legality freedom fear chaotic political campaign 1989 pro democracy movementthe applicant account involvement 1989 pro democracy movement escalated somewhat time tribunal accepts attended demonstration donated money student claim made leaflet recorded radio program distributed student made hearing tribunal applicant stated certain fact omitted original application trust person helped complete tribunal accept plausible explanation omission particularly difficult see difference term importance matter included even tribunal accept truthful applicant later claim activity 1989 role movement overall supporter broader student movement way could said leader movement high political profile information current situation china support view chinese authority continue investigate pursue systematic fashion whose involvement politics participation pro democracy movement 1989 dfat cable bj1879 dated 1 june 1993 indicates chinese authority interested pursuing people low level past political involvement cable state student others high dissident profile significant influence china time tiananmen incident even office bearer overseas pro democracy organisation would remote chance facing administrative criminal sanction chinese authority unless return initiated organised activity opposing government effective way advice recently confirmed dfat letter tribunal dated 10 february 1994 furthermore neither united state state departmentcountry report human right practice 1993nor amnesty internationalreport 1993mention continuing systematic arrest participant 1989 pro democracy movement activity australiathe applicant limited involvement chinese pro democracy organisation australia member organisation attended demonstration commemorate died beijing 4 june 1989 information quoted dfat cable bj1879 dated 1 june 1993 indicates applicant would danger result activity return china association wang ruowangthe applicant claim close association wang ruowang raised almost two year lodged application refugee status explanation information included original application unsatisfactory noted tribunal consider plausible explanation applicant trust person helped complete application form particularly association mr wang possible discovery letter sent form basis applicant fear return china addition inconsistency applicant evidence able explain adequately stated july august 1990 discovered mr wang arrested january 1990 also stated one main reason lodged application refugee status june 1991 mention however made applicant fear discovery letter sent mr wang told tribunal late 1992 knew certain letter intercepted authority explain mention incident time held great fear letter discovered tribunal serious doubt whether letter sent applicant mr wang fact accept certain aspect applicant evidence concerning association mr wang tribunal find disturbing asia watch report mr wang went hiding 14 june 1989 returned shanghai 18 june placed house arrest 19 july 1989 8 september 1989 incarcerated detention centre shanghai accused counter revolutionary propaganda incitement asia watch detained china tibet directory political religious prisoner human right watch 1994 p 464 matter occurred prior applicant departure shanghai december 1989 indeed applicant relationship mr wang wife close maintained would expected would knowledge event insisted however mr wang arrested january 1990 tribunal accepts applicant relationship mr wang consider close applicant described tribunal considers applicant exaggerated association mr wang attempt enhance application refugee status tribunal accepts applicant met mr wang australia 1992 facsimile message provided applicant mr wang united state applicant document newspaper article provided applicant refer two friend mr wang detained shanghai march 1993 asia watch document cited also refers incident asia watch op cit p 463 applicant stated fear suffer fate two people return china however would seem information contained article fromthe chinese heraldthat sun li fu jiqing long close relationship mr wang yang zhi 1989 pro democracy movement tribunal accept applicant relationship considers possibility applicant would detained association mr wang return china remote tribunal concludes 1994 applicant chance subjected administrative criminal sanction return china part 1989 pro democracy movement association well known dissident remote applicant certainly high dissident profile departing china nothing occurred since departure would indicate would sought authority light evidence available case tribunal find real chance defined high court inchan applicant would face persecution return china decisionin accordance reason tribunal affirms decision review applicant refugee convention relating status refugee done geneva 28 july 1951 amended protocol relating status refugee done new york 31 january 1967 prescribed criterion grant domestic protection temporary entry permit applicant determined refugee status decision grant 1 accordance 166ea themigration act1958
Health Care Complaints Commission v Dawes [2015] NSWCATOD 8 (25 February 2015).txt	health care complaint commission v dawes 2015 nswcatod 8 25 february 2015 last updated 27 february 2015civil administrative tribunalnew south walescase name health care complaint commission v dawesmedium neutral citation 2015 nswcatod 8hearing date 12 13 14 may 2014date order 11 february 2015decision date 25 february 2015jurisdiction occupational divisionbefore j muller principal memberdr w warren professional memberprof blaszczynski professional memberf taylor lay memberdecision tribunal declared respondent still registered health practitioner tribunal would reprimanded strongest term ordered cancellation registration tribunal ordered respondent disqualified registered psychologist period 10 year commencing date decision tribunal made permanent prohibition order respect provision certain health service defined s4health care complaint act 1993 namelycommunity health service counselling mental health service health education service welfare service necessary implement service andservices provided alternative health field tribunal ordered respondent pay cost hccc agreed assessed tribunal also ordered appropriate review body application made respondent ncat successor time tribunal also requested psychology board australia record national register kept board fact tribunal would cancelled respondent registration still registered date decision catchword health practitioner regulation psychologist boundary violation vulnerable client sexual contact client email correspondence inappropriate graphic content sending pornographic material client requesting pornographic material manufactured client transmitted involvement illegal sexual act failure keep accurate record failure keep record appropriate quality failure appropriately terminate therapeutic relationship failure make referral failure seek advice senior colleague unsatisfactory professional conduct professional misconduct breach code ethic impairment complex multiple paraphilia competent practise psychology disqualification 10 year permanent prohibition order provision health service legislation cited civil administrative tribunal act 2013health care complaint act 1993health practitioner regulation national law nsw 86a national law psychologist act 2001civil administrative rule 2014cases cited health care complaint commission v 2014 nswca 307hccc v engel jones 2011 nswnmt 23hccc v litchfield 1997 nswsc 297 1997 41 nswlr 630hccc v scully 2011 nswnmt 28jacobsen v nurse tribunal unreported dunford j bc9705032 nsw bar association v meakes 2006 nswca 340category principal judgmentparties health care complaint commission complainant gareth michael dawes respondent representation counsel w hunt complainant solicitor f westwood legal officer health care complaint commission complainant file number 1420010publication restriction non publication order apply name address client information may tend identify b name address respondent wife may ex wife two child c image shared respondent client whether shared third party party descriptor image regarding bestiality shared respondent client save detailed herein e admission made client conduct potential criminal implication non access order accordance rule 42 also made visual computer evidence well material contains matter subject non publication order reason decisionthe matter tribunalcomplaints one two tribunal involved gross misconduct respondent registered psychologist young female client may 2011 april 2012 majority conduct related sexual matter tribunal considers least non standard nature normophilic including conduct relating act contrary law early boundary violation included encouraging client client engage certain sexual act requesting electronically record provide copy respondent respondent also commenced revealing sexual fantasy client early therapeutic relationship respondent fantasy focused anal sexual activity watching woman sex dog boundary violation escalated include oral vaginal anal sex respondent client workplace secluded public place well realisation respondent bestiality fantasy two occasion home third party period time may 2011 april 2012 3 000 email passed respondent client many image video link internet pornography attached contained addition graphic content email conduct respondent ceased respondent wife discovered email time respondent failed appropriately terminate therapeutic relationship failed refer another therapist attempted enlist help minimise nature conduct come known wife requesting client lie wife complaint three tribunal related respondent impairment result suffering complex multiple paraphilia tribunal detail later document complaint four relates competency respondent practise profession psychology 139 health practitioner regulation national law nsw 86a national law basis sufficiency mental capacity tribunal decidedthe tribunal found respondent guilty unsatisfactory professional conduct professional misconduct tribunal found respondent suffers impairment namely complex paraphilia described later document characterised period fetishism non living object zoophilia animal obsessive compulsive pre occupation pornographic material detrimentally affect capacity practise psychology tribunal also found respondent competent practise psychology s139 national law sufficient mental capacity pursuant s149c national law tribunal determined respondent still registered would cancelled registration reprimanded strongest possible term tribunal also determined disqualify respondent registered psychologist period 10 year make prohibition order accordance s149c national law ordered cost favour health care complaint commission hccc prohibition order made tribunal permanent prohibition order respect provision following health service defined s4health care complaint act 1993 community health service b counselling c mental health service health education service e welfare service necessary implement service f service provided alternative health field tribunal declared respondent still registered health practitioner order cancelling registration would made ordered respondent disqualified registered psychologist period 10 year date hereof ordered appropriate review body application made respondent ncat successor time cost order favour hccc made usual term tribunal also request psychology board australia record national register kept board fact tribunal would cancelled respondent registration still registered date decision non publication non access orderspursuant tos64civil administrative tribunal act 2013 ncat clause 7 schedule 5d national law tribunal made non publication order prevent publication name respondent client information might identify reason referred client tribunal also made non publication order respect name address respondent wife possibly ex wife two child tribunal appreciates identification may flow fact name respondent subject suppression tribunal make non publication order pursuant tos64ncat clause 7 schedule 5d national law well non access order effect following inspected disclosed accordance withrule 42 civil administrative rule 2014 regarding following matter visual material computer evidence matter including email respondent client aany descriptor image concerning client bestiality notwithstanding evidence set herein purpose establishing particular whole part document containing client evidence regarding bestiality admission conduct notwithstanding evidence set herein purpose establishing particular document contains name address material may tend identify client respondent wife respondent child complaintthe complaint brought tribunal hccc consulted psychology council new south wale accordance withsections 39 2 and90b 3 thehealth care complaint act 1993and section 145a national law relation respondent formerly registered psychologist alleges complaint onehas guilty unsatisfactory professional conduct within meaning section 139b l national law engaged conduct demonstrates judgment possessed care exercised practice psychology significantly standard reasonably expected practitioner equivalent level training experience engaged improper unethical conduct relating practice purported practice psychology backgroundthe practitioner provisionally registered psychologist 6 april 2004 fully registered psychologist 7 february 2006 practitioner commenced employment omitted tribunal 10 august 2009 fee service basis omitted premise omitted parramatta parramatta premise omitted penrith penrith premise practitioner provided psychological treatment client 6 january 2011 5 april 2012 parramatta penrith premise omitted particular complaint one1 may 2011 april 2012 whilst providing psychological treatment client practitioner failed maintain proper professional boundary sent inappropriate email client 13 may 2011 included shall never shock could walk office nothing trenchcoat fm boot would still betray trust judge sya sic whatever ii sent client email containing sexually explicit content encouraging client send email sexually explicit content iii sent client email attachment electronic image video depicting sexual act including engaging sexual act internet pornography june 2011 april 2012 iv sent client email 22 july 2011 whereby encouraged engage anal sex partner v encouraged client email electronic image video depicting engaging sexual act alone partner vi exchanged excess 3 000 email client large proportion included sexual content vii requested received usb device client depicted client engaging sexual act viii 7 june 2011 sent client song entitled daddy email attachment song parent raping child circumstance practitioner aware client suffered sexual abuse child 2 september 2011 april 2012 practitioner engaged physical sexual contact client approximately 14 occasion included oral anal vaginal sex contact took place penrith parramatta premise omitted practitioner motor vehicle public park reserve 3 practitioner encouraged client engage bestiality sex dog sending email image topic december 2011 onwards relationship 4 practitioner facilitated participated watched client taking part act bestiality dog 2 march 2012 12 april 2012 presence third male person practitioner sex client occasion whilst male watched ii practitioner filmed client sex dog one occasion 5 engaging conduct set particular 1 4 practitioner breached general principle respect right dignity people people general principle b propriety general principle c integrity australian psychological society aps code ethic code including limited sending client song referred particular 1 viii comply 2 code ii engaging sexual activity client comply c 4 3 b 3 code iii engaging behaviour particular 4 comply section 2 1 section c 4 3 c 1 1 c 1 2 code 6 10 february 2011 22 april 2012 practitioner client exchanged number email part client treatment regime relation email practitioner failed set guideline client frequency content email particularly diagnosed personality disorder ii failed keep date knowledge use email provision psychological service client iii continued send encourage client send email content communication became inappropriate iv facilitate client informed consent nature purpose communication content would used stored required section 3 3 code v failed observe requirement section 2 1 code vi failed ensure privacy required section 4 code vii failed retain email part client medical record required section b 2 1 code 7 january 2011 april 2012 practitioner failed maintain accurate patient record practitioner handwritten record contained insufficient comprehensible detail therapy delivered client response ii contained insufficient detail practitioner treatment plan client drug use iii failed adequately document practitioner treating client personality disorder iv practitioner assessment note include detail client history physical sexual abuse v quality record comply requirement section b 2 1 code 8 may 2011 practitioner failed terminate therapeutic relationship client explain needed done professional boundary broke ii therapeutic relationship terminated april 2012 failed ensure client continuity care make formal referral client another practitioner iii omitting thing practitioner comply requirement b 11 2 b11 5 b 3 code 9 practitioner failed seek supervision advice senior colleague providing psychological service client omitting comply requirement b 1 4 code complaint twois guilty professional misconduct within meaning s139e national law engaged unsatisfactory professional conduct sufficiently serious nature justify suspension cancellation practitioner registration ii engaged one instance unsatisfactory professional conduct instance considered together amount conduct sufficiently serious nature justify suspension cancellation practitioner registration particular complaint twothe particular identified complaint one repeated rely upon individually cumulatively complaint threesuffers impairment particular complaint three1 practitioner physical mental impairment disorder namely complex paraphilia characterised period fetishism non living object zoophilia animal obsessive compulsive pre occupation pornographic material detrimentally affect likely detrimentally affect practitioner capacity practise profession complaint fouris competent practise profession section 139 national law practitioner sufficient mental capacity practise profession particular complaint fourthe practitioner suffers impairment particularised particular 1 complaint 3 practitioner impairment sufficient nature degree detrimentally affect likely detrimentally affect practitioner mental capacity practise profession additionally particular complaint one two relied upon repeated individually cumulatively background informationbackground respondentthe respondent born 1980 first granted provisional registration 6 april 2004 registration number psy0001238472 obtained general registration 7 february 2006 following qualification recorded register bachelor social science university western sydney 2002graduate diploma psychology university western sydney 2002postgraduate diploma psychology university western sydney 2003at time conduct subject complaint respondent working part time within nsw health also working private practice reported dr westmore worked addiction medicine relatively large public hospital 2005 2012 respondent surrendered registration 7 november 2012 held two endorsement registration clinical psychology 1 july 2010 forensic psychology 15 september 2011 respondent commenced receiving counselling 1 may 2012 counselling continued least 31 january 2013 date report counsellor case note made counsellor record respondent attended program south pacific private hospital taken work case manager insurance company enrolled master finance degree course letter written respondent insurance company record hospital admission period four week due pervasive mood suicidality behavioural issue relating offending behaviour background admission respondentthe psychology council nsw held proceeding s150 national law 8 november 2012 respondent cancelled registration day attend s150 hearing respondent legal representative forwarded letter council indicating respondent without admission respondent would attending would placing material council surrendered registration tribunal note s150 proceeding concluded respondent removed name register order suspending would made interviewed presence legal representative hccc investigator 1 february 2013 respondent admitted improper relationship client physically sexually emotionally respondent claim would encouraged client engage sex dog knew experiencing distress respondent answer interview provide account conduct substantially accord detail provided client respondent legal representative provided section 40 response behalf report dr bruce westmore dated 11 april 2013 dr christopher lennings dated 11 june 2013 enclosed response section 40 response state respondent concedes respondent conduct must amount grave professional misconduct conceded material time respondent fit proper person discharge role psychologist conduct characterised submission grievous breach trust submitted respondent expert report support good candidate rehabilitation mitigating factor explanation also contained submission noted summarised herein noted respondent submission included report dr westmore dated 11 april 2013 report written request respondent legal representative respondent attended upon dr westmore 9 april 2013 dr westmore record read document forwarded relation matter tribunal summarise entirety dr westmore report herein however number matter require noting tribunal note respondent informed dr westmore client started email time frequency increased respondent informed dr westmore unfortunately refer developed sexualised talk june 2011 respondent informed dr westmore suffered long standing sexual obsession almost like addiction involved pornography respondent denied groomed client rather surprised responded positively long standing sexual fantasy regarding woman sex dog respondent stated considered client multiple opportunity get hindsight respondent feel client might trying please participating sexual activity respondent admitted continuing treat client whilst sexual activity stated able compartmentalise conduct respondent first accessed pornography 11 year age 13 year age accessed internet porn involving dog found exciting wife discovered use porn asked stop respondent stopped six month til started hiding better around 2007 8 respondent marriage became quite strained joined sex dating site used meet number woman became sexually adventurous performing activity woman could wife respondent stopped accessing internet pornography april 2012 january 2013 accessed two occasion ceasing completely respondent stated considered fit psychologist dr westmore asked issue regarding inappropriate sexual relationship client stated understood betrayal trust horribly abusive wrong happened wife kid well respondent stated took full responsibility breakdown therapeutic relationship client introducing illegal sexual act animal axis 1 diagnosis made dr westmore paraphilia characterised period fetishism non living object zoophilia animal obsessive compulsive pre occupation pornographic materialadjustment disorder depressed anxious mood pertinent predicament find result behaviour client dr westmore opined respondent clearly could continue work psychologist time dr westmore also noted respondent motivated consult psychologist dr westmore provided respondent name psychiatrist particular interest expertise area internet pornography abuse dr westmore opined risk behaving inappropriately towards client return clinical practice consider applying history would need reviewed considering commitment seeking assistance recognition psychosexual problem context support parent dr westmore considered extremely good prospect rehabilitation respondent lawyer also provided report dr lennings report dated 11 june 2013 dr lennings noted respondent lawyer referred respondent treatment sought report covered treatment plan finding made hccc expert particular provisional diagnosis made therein impulsive sexual behaviour disorder reference report dr westmore comment literature regarding nexus sexual deviancy pornography report dr lennings noted met respondent three occasion april may 2013 fourth appointment booked june 2013 focus session planning treatment treatment commenced dr lennings view respondent cease consulting current psychologist consulted since august 2012 dr lennings record social history respondent accord report dr westmore sexual history recorded dr lennings largely accord set dr westmore report although dr lennings note respondent began hiding interest engagement internet pornography early adolescence note history suggests significant compulsive element behaviour dr lennings also noted respondent report point installed net nanny computer block access pornography site heading diagnostic issue report state mr dawes present paraphilia obsessional interest pornography detriment ability maintain intimacy loved partner occurred present zoophilia voyeuristic fetish like behaviour highly anxious quite distressed moment although able mostly go day day life likely axis 1 diagnosis adjustment disorder anxious mood paraphilia report noted respondent present axis 2 disorder despite alienation compulsive feature dr lennings also noted respondent capable consequential thinking aware terrible consequence behaviour deeply remorseful dr lennings noted respondent somewhat defensive grooming client dr lennings discus diagnosis hccc expert witness suggests specific diagnosis paraphilia no 302 9 tribunal note dr lennings clarified using dsm iv dr lennings expressed view diagnosis made dr westmore encompassing heading treatment plan dr lennings stated respondent would expect undertake lengthy period treatment minimum 40 60 session le weekly regime likely time frame two three year paragraph 20 dr lennings report read mr dawes entrenched behavioural disturbance moment urge low full horror situation expected deplete libido punish inappropriate urge however time urge return treatment need take time work natural fluctuation occur presentation mr dawes learn recognise trigger deviancy manage trigger identify practice compensatory behaviour deflect urge gain good understanding modus operandi including approach grooming behaviour behaviour maintain victim behaviour identify possible slip trigger could initiate sequence future take time treatment plan emerging comprehensive plan multiple target addition offence specific treatment need learn non sexualised way managing emotion dealing psychological crisis refocusing identity away sexually deviant theme dr lennings provides comprehensive review explanation current study provide understanding link compulsive pornographic interest deviancy bestiality tribunal reproduce summarise material oral evidence dr lennings set attempt obtain specific admission particular undertaken respondent attend direction hearing time respondent longer legally represented letter tribunal dated 18 december 2013 exhibit 18b respondent stated submitting defense term complaint made understood document provided previously would used evidence submit respondent also stated intention ever engaging profession psychology respondent also stated extremely remorseful action harm caused correspondence regarding admission respondent authorised contact dr westmore dr lennings mr harley conyer therapist respondent stated pleading guilty matter hccc supported imposition life time ban registration psychologist identification psychologist respondent also stated confirmed impairment remained care therapist respondent also indicated financial position pay fine may imposed upon background client aclient born 1988 first consulted psychologist 16 year old urging adoptive mother seek help psychological issue arising sexual physical abuse neglect well eating disorder time sought assistance respondent client university student addition working part time although frequently required medical certificate treating doctor excuse university treating doctor provided mental health care plan suggested client came care outpatient mental health service client preferred see private psychologist client record statement exhibit 5 apprehensive unable secure appointment female psychologist accepted appointment respondent pretty desperate get help using methamphetamine client describes psychological symptom including tendency disassociation manifest fleeting loss eye sight momentary lack concentration extremely shift different persona whilst different persona client would dress act characteristic persona client state respondent asked take photograph slipped one persona paragraph 18 exhibit 5 client informed respondent sexually assaulted brother physically abused biological mother client reported one occasion high methamphetamine feeling hypersexual took photo naked one book another teddy bear covering lower body sent respondent client report surprised offended respondent replied photo complimentary remark body interview hccc investigator respondent described client follows fairly typical use term borderline presentation young woman emotional issue fairly scattered fairly bound sort hold one particular track one thing time whether job relationship et cetera might quite inconsistent eating disorder self harming behaviour including drug use sporadic based emotional state variable battling time seen therapist time well fairly passive could get aggressive assertive time think due influence methamphetamine background complaintthe complaint arose mandatory notification made client subsequent treating psychologist letter dated 27 august 2012 subsequent treating psychologist reported client referred general practitioner gp ongoing psychological management depression history provided gp letter dated 16 may 2012 included client labile mood since 2011 feeling depressed previous couple week client first consulted psychologist 26 july 2012 16 august 2012 disclosed sexual relationship previous psychologist respondent letter subsequent treating psychologist recorded client informed relationship ended respondent wife became aware point respondent wanted nothing letter also record client informed subsequent treating psychologist respondent wife asked report misconduct sake family protect career client stated also reluctant report misconduct believed respondent unwell told addiction pornography receiving treatment client described subsequent treating psychologist feeling rejected used abused client also made notification notification recorded respondent assured would never harm anyone manner pleaded never tell exhibit 3 letter dated 22 august 2012 attached notification client express view time consulted respondent complex issue attachment trauma resulted responding definitive judgment interaction respondent client stated first concern respondent asked write email journal entry expressing thought feeling email client report cryptic comment respondent encouraged uncensored assuring could trust nothing could shock would judge client stated eventually trusted respondent commenced divulge personal thought feeling found therapeutic safer way vent emotion opposed physically purging food client view regular email correspondence friendship sort developed respondent became willing share personal life certain degree respondent shared music made feel special email respondent started come work personal email address would also working hour client state eventually felt comfortable enough trust respondent issue related personal sex life interest bondage point client noticed change respondent manner appeared found harder harder maintain professional response initially expressed disapproval response manner apologised eventually continued discussion regarding sexual issue lead respondent sharing video depicting undertaking sexual act client recount whilst confused concerned occurrence grown fond respondent formed bond attachment result level emotional support extended personal interest seemed client stated although felt shy naïve way well shocked also felt strong drive go along become type flirting exploring one another eventually became type competition whereby sent video various sexual act state provided video usb would load via email client state sexual contact started anal play consultation room escalated sexual encounter secluded public place home distant suburb client stated took cue way respondent spoke specific sex act well interest showed considered encouragement direct indirect respect act performed together act performed alone filmed watch eventually began take explicit intense way described conceptualised act sex order please client state come rely upon respondent emotionally taken interest helping emotional attachment resulted feeling driven maintain relationship respondent interest well please level trust reposed respondent client allowed believe control knew would protect despite concern professionally personal life client state held high pedestal trusted almost completely time respondent made feel accepted valued validated client also felt maintain respondent interest order abandoned client record looking retrospectively interaction respondent preened perform sexual act previously inclination carry 1 client record university study heavily impacted upon battled depressive state anxiety tormenting thought suicide letter continued got point ultimatum choosing make daily decision despite inferior worthless hopeless felt would get endeavour strong becoming strong committing suicide two option world life difficult admit pain hurt abuse power way gareth victimized remain scar life client state wish respondent punished rather appropriately reprimanded rehabilitated considers brilliant professional term experience insight personality disorder abnormal psychology however wish prevent respondent victimizing client client also apologized delay providing print out email stated process painful like experiencing new light seeing sexual agenda clearly caused intrusive tormenting flashback thought suicide terrible nightmare well causing past abuse come fore evidencethis matter involves evidence unpalatable nature little utility recounting detail indeed much would categorised right minded people hard pornography place public arena nevertheless tribunal charged responsibility maintaining standard within profession psychology public safety therefore degree recounting fact circumstance required fulfil obligation imposed national law particular providing reason support finding characterising evidence support order made unfortunate result risk offending public decency tribunal benefit significant summary evidence prepared mr timothy rochford investigator hccc tribunal used statement dated 4 april 2014 exhibit 2 aid memoir assisted location evidence within various volume document whilst reference may made finding paragraph mr rochford statement primary evidence tribunal relied upon reaching finding significant amount evidence form email passed respondent client respondent stage suggested email sent recorded email way doctored altered manufactured mr rochford gave evidence tribunal took form explaining methodology hccc investigation taking tribunal significant evidence light general admission made respondent various piece correspondence tribunal proceeded without calling patient give evidence step taken lightly tribunal regard given evidence regarding significant stress caused virtue original conduct respondent recounting another psychologist conduct subsequent hccc investigation indicative stress would likely suffer called tribunal weighing evidence particularly light respondent indication resist finding made tribunal considered sufficient evidence without calling client proceed hearing least first instance tribunal ultimately sufficient evidence reasonably satisfied respect matter established remained open discus calling client hccc eventuate rather set evidence tribunal relevant particular complaint one two tribunal limit reference evidence support particular complaint heading finding tribunal tribunal also benefit hearing oral evidence mr conyer respondent therapist dr lennings respondent treating practitioner light nature complaint three four impairment competence tribunal record highlight evidence treating practitioner mr conyer gave evidence seen report dr westmore dr lennings respondent sought supportive counselling commencing 1 may 2012 last occasion seen respondent week mr conyer gave evidence tribunal contact initialled mr conyer mr conyer agreed qualified make formal diagnosis dsm iv dsm v understood respondent respondent abstaining accessing pornography also relying upon training psychologist assist initially respondent told extra marital relationship online eventually understood something online asked tribunal whether aware woman client treated respondent mr conyer stated surprise added completely different dimension conduct particularly mr conyer view respondent demeanour approach get everything table trying get help mr conyer expressed view respondent told deliberate lie regarding nature conduct rather would part pattern incremental disclosure observed respondent engaged session tribunal also note mr conyer evidence mention made respondent client therapy session express surprise reported conduct mr conyer able point expression concern remorse impact conduct client made respondent mr conyer expressed view respondent stable part life moment mr conyer record respondent living flat mate parent least time separated wife mr conyer agreed respondent vulnerable relapse unless formally engaged therapeutic process dr lennings also gave evidence second day hearing tribunal note detail written report dr lennings set oral evidence dr lennings confirmed time appointed fourth appointment whilst clear whether respondent advised would attend failed attend tribunal note dr lennings evidence subsequent email contact respondent replied first email indicating would touch subsequent email reported respondent moving parent home dr lennings saw negative factor parent providing support dr lennings stated thought respondent understood dr lennings offered offence specific treatment respondent required whereas mr conyer providing supportive counselling would address issue identified initial session dr lennings dr lennings noted supportive counselling focused goal outcome client opposed type treatment planned dr lennings evidence respondent frankness mr conyer put dr lennings dr lennings expressed view denial minimisation lack frankness advance treatment dr lennings confirmed opinion given compulsive nature longevity respondent behaviour would expect condition respondent would hard remit without treatment dr lennings opinion severe paraphilic deviance would go away quite debilitating psychological sense asked assume treatment supportive counselling december 2013 april may 2014 dr lennings opined underlying pathology compulsion would likely continue risk boundary violation would great even respondent defended compulsion dr lennings considered respondent would still impaired would busy guarding compulsion able practise appropriately clinical setting would able fully enter therapeutic relationship dr lennings expanded upon paragraph 45 report wherein discussing crossing research person cross put fantasy action usually result process giving permission little transgression escalates case respondent crossing offends moral boundary two way first fantasy involved bestiality secondly involvement client dr lennings noted client practitioner relationship provided respondent opportunity engage deviant behaviour escalate behaviour indicates need extensive treatment absence undertaking treatment prescribed dr lennings expressed view would difficult provide prognosis opinion regarding respondent prospect returning fit psychologist point dr lennings noted respondent resistance defensiveness idea groomed client lack insight allowing small boundary violation feature identified would relevant question rehabilitation dr lennings considered respondent lacked insight aspect behaviour dr lennings also noted respondent completely absorbed fantasy world nothing would deter even knowledge transgressing code ethic area evidence compulsive nature respondent conduct evidence inability stop accessing internet pornography even though putting relationship wife peril dr lennings also expressed concern sheer reputational issue associated respondent conduct public would result making return profession difficult dr lennings also expressed view irrespective fact respondent longer practicing psychologist risk taking advantage vulnerable people exists submission hcccthe hccc submitted particular complaint complaint established written outline submission provided tribunal tribunal detail submission finding order made herein accord material aspect finding tribunalfindings particular complaint one twofor purpose complaint one tribunal required consider whether respondent behaviour significantly standard reasonably expected practitioner equivalent level training experience tribunal note respondent held qualification entitled hold registration psychologist respondent acquired qualification satisfied requirement two area practice endorsement registration fact respondent held two area practice endorsement insignificant le four per cent psychologist hold two endorsement respondent held endorsement area clinical psychology forensic psychology provided knowledge skill enhance professional service providing client experience respondent also insignificant particular 1the tribunal satisfied respondent provided psychological treatment client 6 january 2011 5 april 2012 noting medicare record evidence exhibit 22 particular 1 email establishes particular formed e13 seen tribunal context email client previous evening wrote really remember wish recall whole thing came open must say amusing watch try contain interest surprised comfortable openly discussing asking specificsparticular 1 ii various email establish particular detailed email detailed respect particular overlap particular e17 email sent 3 june 2011 respondent encourages client send email revise retract encouraged inclusion pic video artwork sound bite whatever muster 22 july 2011 email exchange wherein anal sex main topic conversation e27 respondent state case suppose easily associated violation due past experience also place body suppose expect shock put people 26 july 2011 respondent sent video showing inserting pen urethra e29 respondent commences email message telling client sharing mood client state replied impressed video felt like dug hole paragraph 27 statement client record feel could tell respondent thought gross felt confused formed bond attachment respondent result growing level emotional support extended personal interest seemed another email day respondent asks client keep video confidential share e33a email respondent client dated 29 july 2011 attached video titled prostrate milking depicts inserting finger anus email respondent client video attached read part bad liking naughty thing life living enjoy want become hardcore anal minx rapidly becoming long others enjoy iti help achieve oh way made prostate milking vid first intend make close better lighting show hope like let know thank k later day respondent sent client email e33 b attached another video v3 time depicting respondent inserting mandarin rectum email exchange 6 7 august 2011 e37 client describes detail anal sex session partner respondent respondent reply wow fun go girl yes collateral impact anal easily cleaned anal training paying p id love see squirt riding new dildo grin 22 august 2011 respondent sent two video attached e40 depicting rectal insertion long carrot attempted insertion bottle email issued following invitation client wanna anal playdate onsaturday 17 9 10am penrith office grinning widely please let know k written statement client record received request respondent send live webcam footage soaped inserting bouncy ball anus patient indicated reluctance respondent advised make excuse excuse go bathroom conduct act client state comply afraid would reject keep happy tribunal note 20 july 2011 prior conduct detailed particular client told respondent email offended made complimentary comment regarding body client sent respondent photo naked e23 email client quite lengthy content alerted respondent harm caused boundary violation least failure part respondent recognise distress caused client commenting photo request photo viewed context earlier reaction client tribunal satisfied particular 1 ii established particular 1 iii tribunal already referenced e33 b particular another video v1 attached email e30 sent respondent client 26 july 2011 90 second video depicting inserting pen urethra erect penis email respondent describes act depicted video describing urethral play client responded positively respondent invited client send something return adding bold shocking like maybe either trying fist disappearing vibrator trick anything else youd like share written 27 july 2011 respondent sent client email e32 attached 40 second video v2 showing close erect penis masturbated ejaculated 1 august 2011 respondent sent email e34 client subject line 2 spoon vid attachment described urethra 2 spoon video v5 4 depicting inserting spoon urethra penis erect respondent sent four video client 4 august 2011 depicted act respondent inserting various inanimate object rectum v5 v5 1 v5 2 v5 3 email dated 16 april 2012 respondent advised client registered access particular social network site used introduction people dog owner purpose bestiality provided user name password bookmarked video involved horse see e 101 statement client expressed shock felt found respondent advertised website included advertisement depicted couple paragraph 65 statement exhibit 5 client stated considered respondent distracted inappropriate nature video introducing material guise sexual empowerment sexual control client also acknowledged email reflected encouraging respondent send image state driven need accept client state confused explicit nature video trusted implicitly took cue respond message sent paragraph 32 tribunal satisfied particular 1 iii established particular 1 iv 22 july 2011 numerous email pas respondent client e25 e27 respondent encourages client engage fetish boyfriend including anal play respondent wrote go girl become anal sex princess show done part email exchange contain advice respondent client gain cooperation boyfriend engage anal sex e79 email sent respondent client 25 january 2012 state know client aware keen seeing vid boyfriend engaging anal sex related activity email go describe graphic specific detail activity included also asked client pretend turn video certain point continue filming various specified action tribunal recount exact request made respondent considering sufficient note request went well beyond single act anal sex tribunal satisfied particular 1 iv established particular 1 v overlap particular others tribunal relies evidence detailed elsewhere 26 july 2011 sending client video depicting engaging sexual activity insertion pen urethra erect penis respondent asks client send something return client responded later day video naked bathroom exposing anus unable transmit video respondent suggested transfer file usb bring next appointment 28 july 2011 paragraph 34 35 statement client recount respondent sent instruction insert anus film numerous video provided respondent referred act depicted training electronic size video increased respondent opened yahoo account client could send larger file file size became large suggested client place onto usb consultation respondent downloaded material usb onto laptop erased usb paragraph 36 exhibit 5 paragraph 41 statement client recount request made respondent made time wife hospital following birth child respondent requested live footage via webcam engaging anal play client report reluctant comply boyfriend home also afraid respondent rejecting keep happy expressed view fear rejection magnified history attachment trauma abuse also felt respondent would protect anything happened respondent gave instruction excuse boyfriend presence go bathroom produce image requested tribunal satisfied particular 1 v established particular 1 vi exhibit 2 provides summary undertaken mr rochford hccc investigator many thousand email passed respondent client volume 3 hccc document contains many email large proportion email include sexual content many graphic detail tribunal satisfied particular 1 vi established particular 1 vii 27 july 2011 respondent requested client bring usb image unable transmit email next appointment usb containing pornographic image respondent client obtained hccc executed search warrant respondent premise respondent sent email client 20 january 2012 thanking usb vids balance email alludes content video context evidence tribunal satisfied requite standard video depicted client undertaking sexual act tribunal satisfied particular 1 vii established particular 1 viii 7 june 2011 3 19 pm respondent sent mp3 attached email email read e20 p watch korn one warning regarding korn song repeated respondent email 3 49 pm korn musical group song sent respondent client titled daddy lyric daddy refer child sexual abuse client evidence informed respondent history child sexual abuse treatment session tribunal note respondent clinical note contain reference abuse suffered client physical abuse sexual abuse night 7 june 2011 client responds email content email client reveals extremely distressed confused listening song provided respondent tribunal note email client respondent clearly indicates distressed receiving music state angry confused nothing evidence indicate tribunal message resulted respondent adjusting interaction client tribunal satisfied particular 1 viii established particular 2the respondent deny sexual contact client various email provide record arrangement made respondent client physical sexual contact email record accord detail contact set client statement see example e66 around paragraph 44 following client recount deliberately dressed short skirt heel show respondent sexual persona shortly consultation respondent sent email suggesting attend certain secluded public place purpose anal play client report meeting took place within two week anal intercourse happening client recall respondent commented naughty paragraph 47 e57 email exchange 25 july 2011 respondent client wherein respondent thanked client meeting today river email reference double sided friend referred email content email clear reference sex toy another email respondent client one dated 21 december 2011 thanks meeting river noting always enjoyed immensely e66 client state sexual encounter public area well respondent office involved anal sex respondent attempting fist inserting sex toy object anus frequently involved performing oral sex respondent paragraph 48 51 client state sought medical attention discomfort suffers bowel motion embarrassed tribunal accepts unchallenged evidence client regarding various physical sexual encounter respondent tribunal satisfied particular 2 established particular 3from exchange email 20 july 2011 respondent client clear treatment session respondent discussed client treated client engaged bestiality e68 client statement appears respondent discussed two previous client one involved sexual activity pony another dog conversation occurred commenced engaging physical sexual activity client numerous email exchange commencing 5 6 december 2011 wherein respondent detail intense interest observing client engaging sexual intercourse huge dog email sent 12 15 pm 5 december 2011 respondent asks client anything else really kinky youd like help try anything taboo u know would love know something really depraved fantasised client responded 20 minute later email stating already revealed everything thing felt inappropriate given certain boundary client invite respondent share request anything would like played long fantasised e62 respondent replied five minute later email stated pretty kinky understood recoiled idea respondent asked client judge hastily went state longstanding fantasy watch participate woman fucked dog longstanding recently extended wanting try im gay long shot thought real turn would love woman equally really get sucking penetration good size dog letting pump full cum freaked yet im sorry intense something expect felt right share one know way please freak g holding breath later 5 december 2011 respondent forwarded email client attached mpg file titled xxx animal dog sex beastiality amy get dogged dog 5 dif time message file read discussed little dog porn hope risque let know think g prepare e63 encouragement respondent illustrated example comment email 3 14 pm 6 december 2011 wherein respondent wrote say omg conversation think know much turn knowing might potentially act dog fantasy oh wow made sooooooooo turned idea think get aroused prospect penetrated huge dog excites beyond belief wow think could play together making cum brain understand might want try thats ok let imagine expect would like idea turn think might like fuck dog 7 december 2011 respondent sent email client included three http internet address linking instructional site regarding bestiality e64 client responded email stating tutorial style vid great quelled lot apprehension answering lot question 16 december 2011 respondent sent email client providing detail enquiry regarding woman willing sex client possibility involvement respondent respondent provided reassurance woman male partner would involved respondent also reported sourced willing owner would willing let u play dog big black one said mount stay hard long time cum lot e65 email respondent dated 20 december 2011 client recount conversation regarding whole canine thing client state keen pursue exploring canine sex although appreciated wanted sooo bad really get hot another email day client state finding prospect canine sex exciting something comfortable another woman client explains reason include whole stranger danger thing associated interaction involvement peopleshe appreciates respondent really want enact fantasy something engaged whereas engaged sexual activity involving another woman result really get hot 23 december 2011 respondent sent email message advising client owner dog interested meeting soon provided various photo dog respondent attached email e67 image video woman engaging sex dog sent client respondent 4 january 2012 e73 email exchange accompanied link image video confirmed excitement respondent prospect client engaging sexual activity dog respondent involvement 14 16 february 2012 respondent sent client video image woman oral vaginal sex dog respondent email include following comment oh cant wait watch get penetrated dog cant wait play dog sydney really cant pic found id love see love look pose would willing turn think pose etc 29 february 2012 respondent informed client email made arrangement meet owner labrador dog 2 march 2012 could engage sex dog owner home e91 email client included following safe guy name omitted know willing sex dog believe want watch u together foreplay cum begin dog free dictate happens permit forced anything want also name omitted agreed use camera pic take let u use camera would allow happy snap grinning going hot watching getting mated horny dog wow repeatedly omg cant wait statement mr rochford record email respondent client 7 19 march 2012 detailed sexual contact also sexual contact dog tribunal provided one email exchange occurred 7 march 2012 email referred photo respondent taken client engaging sexual intercourse dog respondent stated would put photo onto usb rather attaching email email also detail plan encounter occur another dog husky contact owner made paragraph 4 188 mr rochford statement exhibit 2 record email respondent client 2 april 2012 attached three video woman engaging sex dog tribunal provided email tribunal satisfied particular 1 iii established particular 4the tribunal note evidence referred particular 3 also relates particular e65 record respondent informing client 16 december 2011 sourced willing dog owner statement mr rochford refers another email sent 1 february 2012 wherein respondent record made arrangement client sex german shepherd dog owned particular person attached copy another woman sex dog email evidence tribunal 10 45 4 january 2012 respondent informed client discovered couple option u coming week detailed contact three different dog owner willing allow engage sexual activity dog respondent also advised client one owner indicated willing allow dog mount respondent well client respondent repeat information another email later day e72 later 4 january 2012 respondent advised client email made arrangement owner black labrador dog sex dog e71 email attache four picture statement mr rochford record image include respondent masturbating dog called lucky client also make reference photo paragraph 59 statement initial attempt meet lucky successful client recount respondent made arrangement meet another dog staffordshire terrier pit bull cross named vladamir first occasion encounter dog client describes freaked dog scratching arm leg ultimately respondent agreed leave respondent attempted various form sexual contact client whilst driving back car incident detailed email respondent client organising meet owner lucky 2 march 2012 e91 tribunal note content client statement regarding encounter tribunal note client called give evidence person request hccc admission client regarding conduct nature published tribunal settled tribunal content accept evidence client basis admission respondent respect particular email respondent client dated 3 march 2012 confirms conduct detailed particular tribunal also reasonably satisfied evidence least one occasion sexual activity dog filmed respondent make admission interviewed hccc evidence regarding particular published tribunal email correspondence month march april 2012 record respondent informing client wanted engage sexual activity many dog manage e100 exchange email respondent client confirms arrangement meet owner dog lucky occurred 2 march 2012 respondent reminds client bring camera state dying rim tribunal recount detail incident 12 april 2012 save satisfied conduct described particular occurred client statement record observed owner dog masturbating engaged anal sex respondent bathroom left premise tribunal note substantial concern email exchange occurred earlier day 11 april 2012 respondent client 8 15 morning client informed respondent friend partner died drug e99 client discus use methamphetamine writes tribunal would describe distressed call help support pain enough make want kill much guilt ache much angry upset respondent initially responds brief expression support concern night 7 43 pm respondent wrote email client made reference conversation obviously occurred earlier day wherein discussion regarding another sexual encounter dog discussed email included following content ready meet couple shepherd lucky next 2 3 week really going get dose doggy cock client ji love bring cant wait fuck dog drink pee fuck female male dog tribunal satisfied particular 4 established particular 5 way background tribunal note psychology board australia psyba adopted australian psychological society aps code ethic code code therefore applies registered psychologist commencement national registration accreditation scheme nra 1 july 2010 general principle a2 relates respect client tribunal note particular 2 1 state course conduct psychologist communicate respect people action language tribunal view sending song daddy client 7 june 2011 regard lyric song detailed indicates gross disrespect client action tribunal satisfied particular 5 established particular 5 ii principle b 3 professional responsibility state psychologist provide psychological service responsible manner regard nature psychological service providing psychologist act care skill expected competent psychologist b take responsibility reasonably foreseeable consequence conduct c take reasonable step prevent harm occurring result conduct provide psychological service period service necessary client e personally responsible professional decision make f take reasonable step ensure service product used appropriately responsibly g aware take step establish maintain proper professional boundary client colleague h regularly review contractual arrangement client circumstance change make relevant modification necessary informed consent client principle c 4 3 state psychologist engage sexual activity client anybody closely related one client b engage sexual activity former client anybody closely related one former client within two year terminating professional relationship former client c wish engage sexual activity former client period two year termination service first explore senior psychologist possibility former client may vulnerable risk exploitation encourage former client seek independent counselling matter accept client person engaged sexual activity admitted conduct respondent engaging sexual activity client breach ethical principle brief detail nature conduct set tribunal conduct characterised tribunal gross breach ethical standard tribunal make conclusion regarding severity breach tribunal satisfied particular 5 ii established particular 5 iii principle a2 1 read follows 2 1 course conduct psychologist communicate respect people action language denigrate character people engaging conduct demeans person defames harasses principle c 4 3 set principle c1 1 c1 2 read c1 1 psychologist avoid engaging disreputable conduct reflects ability practise psychologist c 1 2 psychologist avoid engaging disreputable conduct reflects negatively profession discipline psychology conduct found established tribunal particular 4 demonstrates gross breach ethical principle set respondent conduct demonstrated total disrespect client conduct denigrated demeaned client depraved manner nothing tribunal indicating respondent sought sort guidance senior colleague prior embarking upon sexual activity engaged client well settled client patient vulnerable due power differential treatment therapeutic relationship would controversial state client psychologist likely higher degree vulnerability due factor nature health care service provided delivery environment usually private generally involving client practitioner particular matter whilst tribunal benefit hearing evidence directly client enormous volume correspondence email flowed respondent evidence many email express client reaction certain action respondent many issue life tribunal able form view client fell category patient considered extremely vulnerable even tribunal view would still satisfied requisite standard respondent breached ethical principle listed particular however overlaying extreme vulnerability client compound seriousness breach give insight deficit respondent character tribunal view conduct described every one particular 1 4 sub particular thereof brings profession psychology disrepute reflects negatively profession psychology tribunal satisfied particular 5 iii established particular 6 bare reading sample email evidence allows tribunal satisfied set guideline frequency content email correspondence tribunal note provided small percentage actual email exchange monthly tally email respondent client range 51 well 1 000 march 2011 respondent replied email client follows e4 email say proud progress complex history involves number abuse look forward email might compile want see many feel probably good purging way reply via email intermittently also reached two email address provided one area health service email address personal email address respondent provided encouragement client email dated 21 march 2011 wherein wrote e6 thank email reiterate see another side write thing continue almost diary writing via email 24 march 2011 client expressed surprise respondent kept replying thanked e7 tribunal also note first letter referring doctor respondent recorded client primary issue dysfunctional eating pattern increasing use methamphetamine history complex trauma childhood respondent concluded report referring doctor stating recommended 12 cbt cognitive behavioural treatment dtt distress tolerance treatment session given evidence available tribunal significant degree deception letter revealed evidence support position respondent failed set guideline frequency content email correspondence kept fact secret tribunal satisfied particular 6 established particular 6 ii tribunal provided article publication etc record current knowledge professional standard regarding use email provision psychological service client without regard content email considering number email passed respondent client tribunal expert tribunal view clinical justification huge volume email matter noting reached 1000 least one month generally ran 100 month course contact defining nature frequency contact treating psychologist fundamental part establishment therapeutic relationship would generally acceptable allow client present practice multiple time every day follows acceptable professional conduct allow email traffic volume demonstrated matter surprising defining aspect professional practice appropriateness utility type contact doubt vary case case depending circumstance matter matter respondent took advantage lack definition use email communication exploitation client maintain secrecy exploitation tribunal satisfied particular 6 ii established particular 6 iii numerous email evidence tribunal wherein respondent encourages strongest term email contact client particular encouraged content sexually explicit nature send email provided extensive detail sexual desire tribunal satisfied particular 6 iii established particular 6 iv general principle 3 3 code read 3 3 psychologist ensure consent informed explaining nature purpose procedure intend using b clarifying reasonably foreseeable risk adverse effect possible disadvantage procedure intend using c explaining information collected recorded explaining long information stored access stored information e advising client may participate may decline participate may withdraw method procedure proposed f explaining client reasonably foreseeable consequence would decline participate withdraw proposed procedure g clarifying frequency expected duration financial administrative basis psychological service provided h explaining confidentiality limit confidentiality see standard 5 making clear necessary condition psychological service may terminated j providing relevant information tribunal satisfied evidence support establishment particular nothing evidence fall category informed consent regarding nature communication respondent whilst respondent encouraged email communication nothing indicates obtained informed consent client engage either level contact information would used stored tribunal satisfied particular 6 iv established particular 6 v ethical principle 2 1 code reproduced email communication respondent client demonstrate respect client context client context many email illustrate behaved manner demeaning client access client previous history well privy current thought process cohesive reading email passed also illustrates coercion exerted respondent client engage various form sexual conduct respondent fostered client dependence upon set commonly called grooming behaviour towards position power trust respect client facilitated enticement client engage conduct tribunal satisfied particular 6 v established particular 6 vi ethical principle 4 code read psychologist avoid undue invasion privacy collection information includes limited collecting information relevant service provided b requiring supervisees trainee disclose personal information unless self disclosure normal expectation given training procedure informed consent obtained participant prior training context referral client respondent collection information regarding might generally described sexual fantasy clinically indicated collection photograph client performing sexual act gross breach ethical standard understatement tribunal say absolutely justification respondent collect material tribunal satisfied particular 6 vi established particular 6 vii ethical principle b 2 1 read psychologist make keep adequate record clinical note respondent contained lengthy email three page tight typed font dated 25 february 2011 client email refers therapy session occurred earlier day email record client taking antidepressant medication although taking prescribed email also detail self harming behaviour engaging cutting limiting food intake current thought process tribunal note point letter referral client gp respondent record suffers coeliac disease prescribed antidepressant medication contraceptive pill tribunal satisfied particular 6 vii established particular 7 tribunal view clinical note kept respondent contain comprehensive detail significant detail whatsoever therapy delivered client response tribunal satisfied particular 7 established particular 7 ii tribunal view clinical record maintained respondent contained insufficient detail regarding treatment plan regarding client drug use email correspondence respondent client indicate extremely limited interest part respondent use methamphetamine tribunal satisfied particular 7 ii established particular 7 iii tribunal view clinical note failed adequately document respondent treating client personality disorder apart initial report client gp little documentation could characterised recording treatment personality disorder tribunal satisfied particular 7 iii established particular 7 iv upon reviewing clinical note maintained respondent tribunal view defective note include client history physical sexual abuse regard information provided client failure record information grave information pivotal treatment provided tribunal satisfied particular 7 iv established particular 7 v ethical principle b 2 1 set even cursory review clinical note kept respondent substantiate respondent failed maintain adequate note respect client tribunal satisfied particular 7 v established point tribunal note clinical record kept respondent include copy letter dated 31 october 2011 written respondent behalf client seeking special consideration basis psychological factor difficulty encountering university study tribunal found sexual contact respondent client commenced time point tribunal note evidence client respondent conduct towards contributing psychological factor referred respondent special consideration letter whilst gravity balance respondent conduct substantial conflict overlooked form pattern deception may explored future tribunal respondent ever make review application particular 8 tribunal note email record may 2011 respondent encouraging sexually explicit information client client providing information lengthy email sent client respondent 12 may 2011 reference discussion client tendency e12 stating sure came session client state must say amusing watch try contain interest surprised comfortable openly discussing asking specific following day respondent wrote client e13 shall never shock matter say could walk office nothing trench coat fm boot would still betray trust judge 19 may 2011 client sent email respondent attaching two image naked waist doubt professional boundary crossed july 2011 respondent confided client anal sex particular kink mine e27 boasted another email e29 could insert pen urethra boundary violation occurred incumbent respondent terminate therapeutic relationship view tribunal therapeutic relationship irretrievably damaged matter well actual sexual contact occurred professional course open respondent arrange appropriate referral another practitioner appropriately terminate therapeutic relationship client tribunal satisfied particular 8 established particular 8 ii email correspondence respondent client 19 april 2012 respondent advises client wife discovered email passed gmail email account used respondent provided client story would like play obviously wife made contact e103 respondent also warned client wife may try contact facebook asked accept contact respondent also asked client ring cancel appointment friday respondent end email stating think going recover shit statement client state respondent informed told wife ever cyber sexual relationship email contact day later e104 make reference message placed facebook respondent wife stating client affair husband client also state sorry imagine going truly sorry respondent reply warrant recording full allow appreciation respondent lack concern appropriate termination therapeutic relationship left point e104 name respondent wife omitted know emailing play itlow keyim sorry moment putting message retract saying wrong person hopefully work ensure everyone made mistake know btw know im emailing hopefully take heat think work honestly separated sure reconciled sorry used facebook attempting wind back hopefully people say oh ok sorry g p im sorry violated patient clinician trust wrong im sorry nothing evidence tribunal indicates respondent made referral another psychologist otherwise took step ensure continuity care client tribunal satisfied particular 8 ii established particular 8 iii ethical principle b 3 set heading particular 5 ii ethical principle b 11 2 b 11 5 read follows b 11 2 psychologist terminate professional relationship client shall due regard psychological process inherent service provided psychological wellbeing client b 11 5 confronted evidence problem situation competent deal client benefiting psychological service psychologist provide client explanation need termination b take reasonable step safeguard client ongoing welfare c offer help client locate alternative source assistance tribunal find respondent due regard psychological process inherent provision psychological service client psychological wellbeing respondent failed terminate therapeutic relationship became inappropriate continue relationship given interaction compounded failure part respondent ensure client ongoing welfare arranging care provided appropriately qualified health professional conduct respondent viewed seriously tribunal result active recruitment client assist personal position respect wife tribunal satisfied particular 8 iii established particular 9ethical principle b 1 4 read psychologist continuously monitor professional functioning become aware problem may impair ability provide competent psychological service take appropriate measure address problem obtaining professional advice whether limit suspend terminate provision psychological service b taking action accordance psychologist registration legislation jurisdiction practise theconstitutionof society c refraining necessary undertaking psychological service evidence tribunal respondent sought supervision advice senior colleague providing service client departure appropriate professional practise also breach code tribunal satisfied particular 9 9 established summary complaint one twowhilst tribunal made comment regarding fact considers respondent well trained tribunal view registered psychologist would appreciated conduct engaged client unethical improper lacking judgment lacking care respondent held two area practice endorsement fact area practice endorsement necessarily virtue legislative test mean tribunal must view conduct seriously committed person le well trained although respondent appear tribunal written material received tribunal left particular complaint one two uncontested noted elsewhere respondent made general admission conduct take opportunity address particular specifically tribunal satisfied requisite standard respondent guilty unsatisfactory professional conduct within meaning section 139b l engaged conduct demonstrates judgment possessed care exercised practice psychology significantly standard reasonably expected practitioner equivalent level training experience tribunal find conduct respondent improper unethical complaint unsatisfactory professional conduct established specifically sub particular particular 1 4 5 7 8 found tribunal amount unsatisfactory professional conduct standing alone particular 2 3 6 9 also found individually amount unsatisfactory professional conduct hccc provide submission aspect conduct would establish professional misconduct jacobsen v nurse tribunal unreported dunford j bc9705032 involved mental health nurse arranged ex patient move home boarder day handed care another practitioner commenced sexual relationship shortly thereafter court held plaintiff entered sexual relationship ex patient knew much confidential professional relationship likely suffer future mental illness fact alone serious enough elevate nature conduct unsatisfactory professional conduct professional misconduct undoubtedly offended foundation nurse patient relationship justified removal plaintiff name register hccc also refers extract hccc v engel jones 2011 nswnmt 23which applied hccc v scully 2011 nswnmt 28which read follows tribunal obligation assist maintaining public confidence nursing profession confirm nurse midwife profession standard maintained order tribunal make circumstance case must reflect fact mental health patient perhaps emotionally vulnerable patient nurse may treat ethical standard nurse need steadfastly maintained relation keeping professional boundary patient matter well understood practised mental health nurse hccc submitted matter involved relationship former patient breach boundary necessarily extreme circumstance involves current patient trusting therapeutic relationship breached exploitation particularly vulnerable client encouragement given engage denigrating prima facie criminal conduct tribunal accepts submission tribunal view conduct sufficiently serious nature warrant cancellation practitioner registration complaint two therefore established tribunal make finding professional misconduct respect particular 1 ii 1 iii 1 v 1 vi 1 vii 1 viii 2 3 4 4 ii 5 5 ii 5 iii 6 6 iii 6 v 6 vi 6 vii 7 8 9 finding complaint threethe tribunal note respondent challenge complaint impairment tribunal accepts evidence dr westmore report dated 11 april 2013 dr lennings report dated 11 june 2013 oral evidence tribunal note evidence detailed written report relied upon respondent tribunal accepts diagnosis reached dr westmore made time assessed respondent dr westmore diagnosed respondent suffering mental impairment disorder namely complex paraphilia characterised period fetishism non living object zoophilia animal obsessive compulsive pre occupation pornographic material detrimentally affect practitioner capacity practise profession describing respondent paraphilia complex tribunal note multiple aspect respondent paraphilia long standing obsessive compulsive hence tribunal described elsewhere document complex multiple paraphilia diagnostic statistical manual mental disorder fifth edition dsm 5 published may 2013 recasts classification pertaining paraphilic disorder previous dsm iv dsm 5 paraphilia distinguished paraphilic disorder former refers sexual interest greater equal normophilic sexual interest whereas becomes disorder interest related behaviour cause distress impairment involve personal harm risk harm others tribunal neither troubled competent express opinion matter formal diagnosis simply note whether respondent said complex paraphilia paraphilic disorder multiple co morbid paraphilia paraphilic disorder clear substantial degree impairment tribunal also accepts evidence dr westmore guarded prognosis unless respondent undertakes adequate appropriate treatment tribunal evidence respondent undertaken treatment respondent certainly follow treatment planned dr lennings nothing support respondent claiming sought treatment result financial difficulty despite raised reason would position meet fine imposed hccc submission also provides comprehensive analysis authority matter whether inference drawn respondent failure give evidence tribunal accepts submission made heading effect respondent giving evidence commences page 9 written outline overall effect tribunal view entitled draw adverse inference failure respondent give evidence tribunal circumstance matter tribunal would entitled rely adverse inference make finding upon particular factual element within respondent knowledge position accord tribunal view incumbent registered health practitioner previously registered health practitioner attend relevant body tribunal panel council board answer allegation made relation conduct counterpart responsibility privilege holding registration matter tribunal satisfied evidence particular therefore need draw inference relation respondent failure attend give evidence question tribunal whether respondent suffers impairment time making decision tribunal benefit heard oral evidence dr lennings hearing addition comprehensive report dated 11 june 2013 tribunal accepts dr lennings opinion paraphilia condition suffered respondent well entrenched urge likely resurface unless received appropriate treatment dr lennings opined mere abstaining viewing pornography would impact upon respondent condition would supportive counselling alone tribunal view sufficient evidence find respondent continues suffer impairment date decision based evidence tribunal formed view little prospect respondent overcome impairment point would likely detrimentally affect capacity practise profession tribunal find complaint three established finding particular complaint fourparticular 1the tribunal made finding respondent suffers mental impairment disorder namely multiple complex paraphilia characterised period fetishism non living object zoophilia animal obsessive compulsive pre occupation pornographic material pictophilia detrimentally affect capacity practise psychology tribunal find particular 1 established particular 2the impairment rendered respondent incapable making proper clinical judgment respect client inhibiting abhorrent behaviour tribunal view nature degree respondent impairment detrimentally affect mental capacity practise psychology tribunal find particular 2 established particular 3the conduct detailed particular complaint one two indicative lack mental capacity part respondent tribunal look factor compulsion evident email evidence tribunal demonstrating respondent capacity self control rampant escalation respondent sexual behaviour client another demonstration lack ability self aware conduct callous disregard mental physical welfare dignity reputation client magnitude demonstrates mental capacity respondent sufficient practise psychologythe extreme nature grooming opportunistic predation engaged respondent also support lack mental capacity practise psychology indeed health service tribunal find particular 3 established summary finding complaint fourthe tribunal view respondent show real insight conduct recognition need seek professional help callous disregard client demonstrated conduct also point lack mental capacity practise psychology tribunal note evidence respondent awareness conduct breaching code conduct one rather resulted abstract thinking decision making form ethical reasoning tribunal find respondent competent practise psychology section 139 national law sufficient mental capacity practise profession psychology peer reviewerdr timothy keogh provided peer review evidence tribunal tribunal accepts view expressed dr keogh report dated 5 may 2013 oral evidence gave tribunal opinion dr keogh regarding email contact engaged respondent client particular assistance dr keogh note formal guideline available aps psyba regarding use email provision psychological service notwithstanding dr keogh opines number scholarly contribution issue well application code communication client dr keogh report article psychologist use e mail client ethical consideration drude lichstein august 2005 ohio psychologist 13 17 following suggestion made regarding use email therapy email communication used face face telephone contact possible b psychologist educate patient type information discussion appropriate email andc psychologist maintain printed copy message client specifically remind party communication professional rather casual potential clinical legal ethical importance dr keogh express opinion respondent adhere section 3 3 code email communication commenced failed explain nature purpose procedure intended using explain disadvantage method explain information gained would collected stored recorded dr keogh also opines respondent breached section 4 code avoid undue invasion privacy collection information collecting information relevant service provided view justification respondent asking client reveal anything everything dr keogh also express view manner respondent used email fell standard prescribed section 2 1 code ultimately allowed email communication become mean abused denigrated client use email communication client dr keogh note official guideline deal keeping email correspondence clinical note dr keogh point general understanding profession document communication psychologist client form part clinical note dr keogh opines failure keep copy email communication breach section b 2 1 code severity breach amplified fact respondent told client purpose part intervention providing dr keogh also provided opinion regarding clinical note kept respondent regarding client summary dr keogh found note largely jotting point lacking substance required able make clinical formulation diagnosis little comprehensive detail regarding therapy delivered response overall note represent confused amalgam treatment whose application hard discern dr keogh also observed whilst many reference client drug use little indication plan address major issue dr keogh comment respondent letter reporting referring gp concludes letter highlight inadequacy respondent clinical note well lack clarity clinical formulation dr keogh express view likely respondent failed establish adequate boundary time client initially consulted identifies early boundary transgression involve commenting client sexual attractiveness encouraging send photo report dr keogh continues page 14 whilst original boundary transgression serious enough later one include mr dawes encouraging seriously disturbed client history abuse sexual abuse perverse sexual behaviour particularly serious use abusive sexual language towards client disrespected denigrated promoting engaging oral sex well anal vaginal penetration ultimately promoting active participant allowing anally vaginally penetrated dog bestiality exposure third party involved sex dog allowing person present masturbate sight sex dog represent gross transgression professional boundary dr keogh comment considers respondent conduct represent highest level unethical behaviour psychologist respect sexual contact client dr keogh express serious criticism respondent conduct note ultimately respondent invited client involved exciting perverse sexual fantasy sex dog exploitation disregard client welfare take dr keogh criticism strongest possible level overall nothing evidence dr keogh discord view tribunal consideration relevant ordersthe tribunal satisfied respondent fully appraised submission would made hccc finding particular complaint order would seek particular complaint established tribunal therefore proceeded one stage hearing determining complaint protective order flowing therefrom therefore appropriate tribunal proceed consider order flow finding professional misconduct impairment lack competence tribunal evidence respondent accessed professional supervision mentoring initially purpose obtaining forensic endorsement continued thereafter tribunal view matter upper end severity respondent engendered deep sense trust ability psychologist wise person early treatment session vulnerability client would patently obvious qualified psychologist right minded person history victim various form abuse drug user eating disorder gaining trust client respondent set manipulate participate sexual act act initially indicated interest respondent used client fulfil sexual fantasy thesis fantasy involved criminal act act also involved third party human canine apart reassuring word seem real care shown respondent client mental physical wellbeing client evidence accepted tribunal suffered physical injury sexual encounter dog suffered psychologically whole involvement respondent using abusing client respondent recruited help attempt cover conduct wife element grooming evident many aspect respondent conduct tribunal note client recount manner respondent would mention video sharing toward end consultation often introduced topic asking homework going conversation occurred client felt respondent trying gauge reaction video see comfortable client state conversation would alerted respondent fact difficult discus face face rather email tribunal evidence professional conduct respondent towards client respect termination therapeutic relationship appropriate referral tribunal evidence total disregard ongoing welfare client evidence tribunal respondent attended counsellor see report exhibit 9 report record respondent attended regular counselling session 1 may 2012 date first report 31 january 2013 initially respondent presented online sex porn addiction said caused breakdown marriage informed counsellor behaviour ceased time first consultation subsequently respondent informed counsellor addiction online extended sexual contact another woman including discussion fetish non standard sexual practice report also record recent session respondent disclosed extramarital sex actually former client counsellor report main role supportive counselling relation past activity made referral respondent discussed sex addiction support group understood respondent attended one meeting counsellor also aware attended program south pacific private hospital independently referral case note made counsellor record respondent informed received legal advice relation hccc investigation conduct counsellor provided report dated 7 may 2014 counsellor stated qualified provide opinion whether respondent suffered impairment report recorded respondent recognised regrated role played matter investigated hccc regret caused respondent deregister psychologist longer intends practise psychologist time future respondent focussed retraining could financially provide child respondent informed counsellor ceased non standard fetish sexual practice porn related compulsive behaviour prior first counselling session fact engaged sexual activity another party since time respondent also informed counsellor rare basis short duration viewed porn online oral evidence counsellor clarified understanding occurred le per month counsellor also understood respondent prescribed anti depressant gp support emotional wellbeing tribunal note qualification counsellor follows bachelor artsmasters art education diploma holistic counsellingdiploma ecopsychologycertificate transformational coachingcertificate integral coachingsuch qualification endorse mr conyer evidence qualified comment diagnosis respondent tribunal accepts evidence dr lennings type supportive counselling bring remediation disorder suffered respondent hccc made submission regarding consideration relevant protective order submission read paragraph 25 follows hccc v litchfield 1997 nswsc 297 1997 41 nswlr 630at 637 638 held tribunal jurisdiction must exercised bearing mind need protect public maintain high standard profession nsw bar association v meakes 2006 nswca 340at 114 basten ja listed following important indirect effect disciplinary order respect professional must considered determining appropriate protective order order reminds member profession public interest maintenance high professional standard b order may give emphasis unacceptability kind conduct involved disciplinary offence c speaking public large order seek maintainconfidence high standard profession hccc submission also note basten ja stated meakes 101 high standard honesty integrity required accordance general law principle governing professional responsibility tribunal accepts matter relevant consideration protective order matter hccc written outline submission also cover question whether practitioner good character tribunal note subject complaint although national law would described suitable person complaint made tribunal would found established conduct respondent would support finding good character suitable person respondent impairment lack competence would support finding suitable person tribunal also view respondent would able demonstrate fit proper person hold registration matter good character suitable person considered tribunal making following protective order hccc also submitted exercise tribunal jurisdiction take account need protect public maintain high standard profession hccc v litchfield 1997 nswsc 297 1997 41 nswlr 630at 637 638 nsw bar association v meakes 2006 nswca 340 114 basten ja listed important indirect effect disciplinary order considered determining appropriate protective order whether order reminds member profession public interest maintenance high professional standardswhether order give emphasis unacceptability kind conduct involvedwhether speaks public large order seek maintain confidence high standard professionthe tribunal accepts submission relevant making protective order matter another area hccc make detailed submission whether tribunal entitled consider whether respondent registered would proceeded make suspension cancellation order tribunal view respondent fit practise psychologist nothing evidence support respondent able overcome substantial flaw character evident document medium even long term evidence regarding respondent failure engage treatment grave concern tribunal bode well rehabilitation respondent well documented health practitioner treatment relationship client patient position power simple term power differential arises due client patient sought treatment health practitioner due expertise practitioner expected hold virtue holding registration regulated profession profession psychology treatment relationship generally develops therapeutic relationship nature kind service provided psychologist health need client generally power imbalance becomes considerably greater result tribunal also observes generally client attending psychologist vulnerable given nature health service seeking particular matter client particularly vulnerable client young lacked family support subjected physical abuse sexual abuse suffering significant medical mental condition time consulted respondent aggravating feature respondent conduct matter severity conduct exceeds set particular matter even conduct extreme category tribunal would satisfied order apart cancellation registration would protect public maintain standard profession maintain confidence public entitled registered health profession act deterrent type conduct reason tribunal view cancellation disqualification appropriate course includes objective seriousness conduct respondent lack insight conduct compulsion continue conduct despite knowing contrary ethical moral standard deception lack care failure engage treatment impairment suffered respondent lack competence similarly tribunal view protection public requires making prohibition order accordance s149c 5 national law tribunal regard expert evidence dr westmore dr lennings nothing significant evidence tribunal would allow finding respondent way rehabilitated given nature conduct length time engaged conduct lack remediation tribunal view respondent pose substantial risk health member public tribunal note national law recently amended allow tribunal make prohibition order circumstance respondent previously registered tribunal note power included national law introduced 2010 available previous legislation s53 3a psychologist act 2001 accordance s149c 5 tribunal able make prohibition order specified period permanently tribunal aware instance prohibition order made permanently tribunal regard purpose national law particular s3a thereof fact circumstance matter tribunal view protection health safety public must paramount consideration permanent prohibition order required tribunal would reprimanded respondent strongest possible term made order cancelling registration respondent registration lapsed tribunal request national board record national register kept board fact tribunal would cancelled respondent registration still registered date decision see health care complaint commission v 2014 nswca 307 tribunal satisfied respondent pose substantial risk health member public proceeded make permanent prohibition order regarding provision following health service defined ins4of thehealth care complaint act 1993 community health service b counselling c mental health service health education service e welfare service necessary implement service f service provided alternative health fieldsthe tribunal note power award cost set clause 13 schedule 5d national law tribunal accepts submission hccc established entitlement cost tribunal also note aspect manner case conducted could viewed anything essential ordersthe tribunal respondent hereinafter referred practitioner 1 declares practitioner still registered psychologist tribunal would cancelled registration 2 order practitioner disqualified registered psychologist period 10 year commencing date publication health care complaint commissioner v dawes 2015 nswcatod 8 3 order practitioner permanently prohibited providing following health service defined in 4health service act 1993 nsw prohibition order community health service b counselling c mental health service health education service e welfare service necessary implement service f service provided alternative health field 4 order appropriate review body application made practitioner ncat successor time responsible tribunal defined 5 national law 5 order respondent pay cost hccc agreed assessed agreement cannot reached party party leave apply tribunal assessment unless assessment mechanism provided relevant time 6 request psychology board australia record national register kept board fact tribunal would cancelled respondent registration still registered date decision hereby certify true accurate record reason decision civil administrative tribunal new south wale registrar
Dodson, Mick --- "United Nations Commission on Human Rights" [1998] IndigLawB 46; (1998) 4(12) Indigenous Law Bulletin 12.txt	dodson mick united nation commission human right 1998 indiglawb 46 1998 4 12 indigenous law bulletin 12a permanent forumthe commission human right working group draft declarationworking group indigenous populationsconclusionunited nation commission human rightsby mick dodsonthe un commission human right commission held fifty fourth session geneva 16 march 24 april 1998 commission dealt indigenous issue 1 agenda item 23 2 fortunate geneva time meeting indigenous voluntary fund attended meeting commission item discussed 3 summary proceeding 3 issue set discussion item namely permanent forum indigenous people un draft declaration right indigenous people draft declaration elaborated commission human right working group chrwg 4the international decade world indigenous people issue commission usually dealt way draft resolution discussed intervention statement floor representative status speak forum draft resolution sponsored government number government generally available well session start least advance discussion item advance presentation draft resolution enables sponsoring government recruit sponsor also provides opportunity non government organization input process even influencing final wording go commission debate process usually occurs outside meeting general debate statement resolution generally deferred later stage session voting member state commission permanent forumindigenous representative various un meeting forum calling permanent forum un system time official un movement issue arose recommendation pertaining indigenous people vienna declaration programme action adopted 1993 world conference human right 4 commission report 5 second workshop permanent forum indigenous people un system commission requested high commissioner human right convene 6 also available commission comment working group indigenous population wgip report recent fifteenth session 7 morning 9 april 8 commission consider draft resolution 9 elaborated nordic country led denmark 10 main thrust resolution establishment open ended inter sessional ad hoc working group elaborate consider proposal possible establishment 11 permanent forum ad hoc working group report fifty fifth session commission proposal consideration participation ad hoc working group basis working group considering draft declaration chrwg 12 indigenous organization status participate chrwg automatically right participate ad hoc working group 13 ad hoc working group meet 5 day prior fifty fifth session commission permanent forum issue agenda fifty fifth session commission debate resolution postponed afternoon meeting lively resistance cuban delegation ostensibly resource implication un 14 resolution carried without vote afternoon meeting 9 april 1998 commission human right working group draft declarationa resolution concerning chrwg introduced canada australia among co sponsor draft resolution 15 reaffirmed sole purpose chrwg elaborate draft declaration reaffirmed invitation indigenous organization seek authorization participate chrwg recognized expertise indigenous organization bring chrwg welcomed progress made thus far chrwg urged economic social council ecosoc process outstanding application indigenous organization authorization participate chrwg also called indigenous organization submit application already done recommended chwrg meet 10 day prior next session commission requested chrwg submit report next session commission resolution adopted without vote 9 april 1998 bit smoke mirror trick commission empowered authorize session chrwg established authority general assembly united nation 16 resolution way recommendation ecosoc wields real authority functional commission working group working group indigenous populationsthe wgip established ecosoc 1982 17 commission report previous session wgip fifteenth session sub commission prevention discrimination protection minority forty ninth session 18 resolution concerning wgip introduced new zealand co sponsored among country australia carried 19 resolution commission invited wgip continue work development pertaining promotion protection human right indigenous people invited wgip continue review activity undertaken international decade world indigenous people decade welcomed affirmation general assembly major objective decade adoption draft declaration possible establishment permanent forum indigenous people within un system 20 requested high commissioner human right give high priority workshop indigenous higher education research institution improve exchange information institution encourage co operation 21 encouraged government recognize importance action national level support goal decade conjunction indigenous people preparing relevant programme plan report decade establishing national committee mechanism involving indigenous people ensure objective activity decade planned implemented basis full partnership indigenous people b seeking mean giving indigenous people greater responsibility affair effect voice decision matter affect c identifying resource activity designed implement goal decade encouraged united nation financial development institution find fund promote goal ofthe decade appealed government inter governmental non governmental organization contribute fund towards achieving goal decade particularly un voluntary fund decade fund development indigenous people latin america caribbean conclusioni think justified saying indigenous issue received discriminatory treatment commission least nation state overwhelming impression left coming first visit observer un commission human right seemingly perfunctory way indigenous issue agenda item dealt also left bitter feeling undue attention given state cost associated establishment ad hoc working group permanent forum similar scrutiny levelled resolution agenda item carried similar cost implication abiding memory doubt intense security associated session robust frank nature debate nation state criticizing state human right violation certainly cannot said mince word mick dodson director indigenouslaw centre law faculty university nsw 1 decision 1996 102 commission human right decided add new permanent agenda item entitled indigenous issue agenda 2 see annotation provisional agenda un doc e cn 4 1998 1 add pp 40 41 para 180 185 3 general statement heard meeting commission 26 27 march 1998 voting resolution took place 9 april 1998 4 see un doc conf 157 23 particular recommendation establishment permanent forum considered within framework international decade world sindigenous people 5 un doc e cn 4 1998 11 add 6 resolution 1997 30 second workshop held santiago de chile 30 june 2 july 1997 7 un doc e cn 4 sub 2 1997 14 para 109 124 8 large number intervention indigenous representative including australia ngo un agency government delegation issue two issue agenda item march 27 28 full copy written intervention obtained office high commissioner human right indigenous people unit united nation palais de nation ch 1211 geneve 10 switzerland 9 un doc e cn 4 1998 l 24 10 among co sponsor resolution argentina angora bangladesh bolivia belgium canada chile costa rica cyprus estonia ecuador finland greece guatemala honduras latvia lithuania mexico nepal netherlands iceland norway portugal russian federation spain sweden switzerland ukraine notably australia absent list attitude permanent forum known writer 11 underlined word added insistence usa debate may unlawful vienna conference effectively general assembly parent body commission clearly talked establishment possible establishment permanent forum 12 chr resolution 1995 32 attached annexure 13 atsic nail ecosoc consultative status list australian indigenous organization authorized participate open ended working group declaration 22 oct 1997 aboriginal legal service western australia central land council iina torres strait islander corp indigenous woman aboriginal corp kimberley land council hreoc aboriginal torres strait islander social justice commissioner national committee defend black right new south wale aboriginal land council northern land council 14 support issue cuba usa strangely japan france although usa main concern seemed ongoing proliferation new mechanism brazil reference draft resolution indigenous people removed substituted word people without whimper anyone including cuban delegation see pritchardilb1998 4 10 15 un doc e cn 4 1998 l 23 16 see general assembly resolution 47 75 vienna declaration un doc conf 157 23 part ii para 28 resolution 49 214 23 december 1994 para 5 17 economic social council resolution 1982 34 7 may 1982 18 un doc e cn4 sub 2 1997 14 un doc e cn 4 1998 2 un doc e cn 4 sub 2 1997 50 19 un doc e cn 4 1998 l 22 20 note language commission using word possible see comment endnote 12 21 workshop proposed costa rica injanuary 1999
Hood and Minister for Immigration and Ethnic Affairs [1977] AATA 16 (19 October 1977).txt	hood minister immigration ethnic affair 1977 aata 16 19 october 1977 last updated 26 september 2006administrative appeal tribunal 77 10021re raymond barry hoodand minister immigrationand fthnic affairsaat decision 18decisionthe tribunal pursuant provision administrative appeal act 1975 reviewed decision minister dated 22nd day july 1977 made tinder provision ofs 13ofthemigration act 1958that raymond barry hood deported australia affirms decision dated nineteenth dayof october 1977 r smithers j deputy president reason decisionthis application raymond barry hood decision minister immigration ethnic affair made 22nd july 1977 pursuant tos 13of themigration act 1958that applicant deported reviewed pursuant provision theadministrative appeal tribunal act 1975 duty tribunal reviewing decision either affirm decision remit matter reconsideration accordance recommendation may make question review whether circumstance disclosed reference would proper recommendation nature matter remitted reconsideration accordance therewith made circumstance disclosed decision question affirmed applicant raymond barry hood born 11th july 1941 new zealand citizen country entered australia 5th april 1976 thereupon became immigrant single man criminal history new zealand discloses numerous offence 1966 onwards offence comprised two charge false declaration social security act 1967 three charge false pretence 1968 one charge false pretence two charge obtaining credit fraud one theft 1970 one charge theft 1971 one theft 1972 one false pretence two charge carnal knowledge 1974 connection offence fine sentence imprisonment imposed last ten year new zealand prison sentence recorded totalled six year six month addition subjected one year probation extending throughout 1972 failed observe condition thereof australia applicant convicted 18th january 1977 seven offence obtaining good false pretence committed december 1976 circumstance applicant deniliquin new south wale obtained tubeless tyre 22 calibre rifle bullet two vieta brand motor lawn mower quantity petrol grocery money exchange cheque value 558 54 motor mower rifle recovered returned person supplied cheque drawn account name applicant richmond branch n z bank victoria applicant informed police ax time wrote cheque knew enough money bank meet knew money coming cheque due paid account 14th january 1977 took risk appears however account overdrawn early september 1976 manager thenwritten applicant instructing write cheque legal action would taken evidence expectation sum sufficient meet cheque drawn deniliquin pay existing overdraft likely paid bank account review challenge conviction january 1977 view offence regarded seriously australian community contended behalf actual offence serious might appear face b case appropriate application policy expressed following term deportation provision themigration actrepresent virtually last resort deal serious case reform cannot expected individual c appropriate case regard principle consideration given effect deportation applicant also interest person personal relationship applicant would affected deportation applicant connection said association romantic nature applicant lady referred mr shirley hood deportation would disrupt association disadvantage applicant lady applicant legal right recover damage respect injury received motor car accident melbourne june 1976 enforcement right would prejudiced deportation good ground believe applicant may fairly described simple one doubt real appreciation meaning truth one feel insufficiently intellectually equipped grapple ordinary vicissitude life result time time take easy path fraud whatever may said blameworthiness disqualifies satisfactory citizen represented review mr buchanan experience type proceeding mr buchanan refrained offering applicant witness question judgment exercised respect consequence issue possible reform absence personal explanation past misconduct assurance applicant future misconduct occur persistent criminal misconduct new zealand repetition seven month would difficult event think pattern misconduct persist circumstance impossible mr buchanan urged feature crime last december indicated lack may called criminality said applicant crime differed common pattern cheque fraud applicant pas next town remained deniliquin circumstance apprehension virtually certain mr buchanan urged indicated real belief part applicant money would paid bank account early january 1977 source money said motor accident board victoria mr buchanan also pointed fact purchasing two motor mower applicant actually advertised lawn mowing engagement emphasised also greater part property obtained applicant recovered urged circumstance sentence six month imprisonment appeared excessive suggestion adequate fund likely paid applicant motor accident board supported evidence item applicant conduct mr buchanan relied somewhat puzzling think reflect inablity part applicant manage affair reference reality therefore said mr buchanan one evaluates offender conduct consider whether heinous whether recidivism likely persistent broadly accepted standard australian community fair require go see reason brennan j becker case 77 10014 conclusion fair practical view probability recidivism quite high probability applicant satisfactory citizen australia quite low idea truth australia relatively short time rendered liable deportation propensity commit offence even purport promise obey law future say due poor level intellectual capacity may well say according accepted standard fairness returned country alleged romantic attachment applicant mr hood course relevant matter information contradictory shirley hood lady whose capacity facing world suspect recently expressed attitude applicant one hostility apprehensive association impossible believe stability relationship reasonable inference mr hood much safer better cared apart applicant would attempted set husband wife regime interest applicant may pursuit suggested romance far satisfied reality validity remaining consideration effect deportation might applicant opportunity enforce right obtain damage injury suffered motor car accident june 1976 would convenient applicant remain australia claim settled would seem proceeding brought person concerned accident driver employer driver relevant vehicle inevitably result judgment applicant sum money requires done behalf ascertain extent injury organise medical evidence prove victorian solicitor solicitor sydney swiftly adequately instructed doubt arrangement made short delay deportation facilitate matter taken necessary new zealand solicitor behalf applicant reach country probably desirable applicant visit victoria actual trial action one necessary assured necessary permit visit purpose granted result consider decision review affirmed refer however desirability conceding time applicant instruct new south wale solicitor adequately relation outstanding claim damage
Sapina v Coles Myer Limited [2009] NSWCA 71 (6 April 2009).txt	sapina v cole myer limited 2009 nswca 71 6 april 2009 last updated 8 april 2009new south wale court appealcitation sapina v cole myer limited 2009 nswca 71file number 40020 08hearing date 12 march 2009judgment date 6 april 2009parties sylvia sapinacoles myer limitedjudgment allsop p beazley ja hoeben jlower court jurisdiction worker compensation commission new south waleslower court file number wcc 4331 07lower court judicial officer acting president g byronlower court date decision 18 january 2008counsel gibb sc moffitt appellant c campbell sc aj hourigan respondent solicitor walker legal appellant lander rogers respondent catchword worker compensation worker compensation commission review arbitrator decision presidential member task presidential member decide true correct decision work place injury management worker compensation act 1998 nsw s 352 353words phrase review appeal way review legislation cited compensation court act 1984 nsw work place injury management worker compensation act 1998 nsw worker compensation act 1987 nsw category principal judgmentcases cited agfa gavaert ltd v lee 1992 nswca 4akora holding pty ltd v ljubicic 2008 nswca 339allesch v maunz 2000 hca 40 203 clr 172aluminium louvre ceiling pty limited v zheng 2006 nswca 34australian gas light co v samuel 1993 9 nswccr 616boston clothing co v margaronis 1992 27 nswlr 580branir v owston nominee 2 pty limited 2001 fca 1833 117 fcr 424cook v midpart pty ltd 2008 nswca 151costa v public trustee 2008 nswca 223denn v midland brick co pty ltd 1985 hca 26 1985 157 clr 398department education training v sinclair 2005 nswca 465drake v minister immigration ethnic affair 1979 24 alr 577 46 flr 409duffy v super centre development corporation ltd 1967 1 nswr 382duinker v st vincent de paul society aged special service limited lewisham nursing home 2008 nswca 127fletcher international export pty ltd v barrow 2007 nswca 244fox v percy 2003 hca 22 2003 214 clr 118jeffery v lintipal pty limited 2008 nswca 138litynski v albion steel pty limited 1994 10 nswccr 287mansini v director general education 1990 nswcc 7 1990 6 nswccr 1ric development v muir 2008 nswca 155schweppes ltd v archer 1934 nswstrp 17 1934 34 sr nsw 178siddick v workcover authority new south wale 2008 nswca 116south western area health service v edmonds 2007 nswca 16state transit authority new south wale v chemler 2006 249state transit authority new south wale v chemler 2007 nswca 249tan v national australia bank ltd 2008 nswca 198watson v hanimex colour service pty limited 1992 8 nswccr 190texts cited aronson dyer grove judicial review administrative action 3rd ed 2004 decision 1 appeal allowed 2 order acting president byron set aside 3 remit proceeding worker compensation commission constituted presidential member dealt according law 4 respondent pay appellant cost appeal judgment supreme courtof new south walescourt appeal40020 08allsop pbeazley jahoeben j6 april 2009sapina v cole myer limitedheadnote headnote form part judgment presidential member worker compensation commission heard appeal way review arbitrator decision 352 thework place injury management worker compensation act1998 nsw act arbitrator decision related appellant claim compensation psychological injury suffered work resulting performance counselling session presidential member approached task examining whether error displayed reasoning arbitrator incorrect test task review decision act court set history word review phrase appeal way review context stated task presidential member decide whether true correct decision though presidential member wide choice available undertook task supreme courtof new south walescourt appeal40020 08allsop pbeazley jahoeben j6 april 2009sapina v cole myer limitedjudgment1allsop p hoeben j nature appealthis appeal brought decision acting president g byron pursuant thework place injury management worker compensation act1998 nsw wim act 353 section relevantly provides 353 1 party proceeding commission constituted presidential member aggrieved decision presidential member point law party may appeal court appeal 2 court appeal may hearing appeal section remit matter commission constituted presidential member determination commission accordance decision court may make order relation appeal court think fit 2 order ap byron appealed made appeal arbitrator pursuant wim act 352 section relevantly provides 352 1 party dispute connection claim compensation may leave commission constituted presidential member appeal commission constituted decision respect dispute commission constituted arbitrator 5 appeal section way review decision appealed 6 evidence fresh evidence evidence addition substitution evidence received relation decision may given appeal commission except leave commission 7 appeal decision may confirmed may revoked new decision made place alternatively matter may remitted back arbitrator concerned another arbitrator determination accordance decision direction commission 3 place 352 context necessary regard wim act s 3 354 section relevantly provide 3 purpose act establish workplace injury management worker compensation system following objective assist securing health safety welfare worker particular preventing work related injury b provide prompt treatment injury effective proactive management injury necessary medical vocational rehabilitation following injury order assist injured worker promote return work soon possible c provide injured worker dependant income support incapacity payment permanent impairment death payment reasonable treatment related expense fair affordable financially viable e ensure contribution employer commensurate risk faced taking account strategy performance injury prevention injury management return work f deliver objective efficiently effectively section 354 1 1 proceeding matter commission conducted little formality technicality proper consideration matter permit 2 commission bound rule evidence may inform matter manner commission think appropriate proper consideration matter commission permit 3 commission act according equity good conscience substantial merit case without regard technicality legal form 4 proceeding need conducted formal hearing may conducted way conference party including conference party participate telephone closed circuit television mean 5 subject general direction president commission may hold conference relevant party attendance relevant expert attendance separate conference private 6 commission satisfied sufficient information supplied connection proceeding commission may exercise function act without holding conference formal hearing 7 assessment determination made commission regard information conveniently available commission even one party assessment determination proceeding co operate cease co operate 4 ground appeal relied court underwent modification course proceeding final form follows 1 ap byron erred law failing address whether m sapina psychological injury wholly predominantly caused cole performance appraisal 8 january 2007 2 ap byron erred law failing decide whether true correct view m sapina psychological injury wholly predominantly caused cole performance appraisal 8 january 2007 3 ap byron erred law failing conduct proper review background5 respondent cole myer employed appellant m sapina july 1997 shop assistant delicatessen supermarket merrylands two half year later m sapina requested transfer epping store appointed position delicatessen manager supervising eight people time later marriage broke sought transfer cambridge garden store could near son difficulty occurred work cambridge garden 6 cambridge garden store m sapina submitted complaint human resource section cole myer alleging store manager discriminated bullied result complaint transferred position delicatessen manager st mary store april 2004 claimed within two week store manager behaviour towards made feel belittled uncomfortable subsequently submitted claim payment worker compensation rejected 7 m sapina took nine week work upon return duty june 2004 informed store manager transferred another location gave evidence everything fine september 2006 new store manager store support manager appointed m sapina claim get along new store support manager outset person rude 8 mid september m sapina suffered described heart scare thought store manager happy said store manager harassed minor issue inability meet daily task list m sapina attributed primarily staff shortage store 9 5 january 2007 regional department manager visited st mary store m sapina informed failed date stock remove box stock date endorsed expired 8 january 2007 area manager store manager inspected delicatessen subsequently store support manager informed m sapina would required attend performance counselling following counselling went sick leave subsequently submitted claim payment worker compensation claiming incurred psychological injury work m sapina returned work since 9 january 2007 10 cole myer disputed claim worker compensation matter due course allocated arbitrator hearing took place arbitrator delivered decision 18 september 2007 11 arbitrator found follows 9 january 2007 m sylvia sapina received psychological injury employment cole substantial contributing factor compensation payable injury arose reasonable action taken employer undertake performance management 12 reaching decision necessary arbitrator apply provision theworkers compensation act 1987 nsw wca s 9aand11a section relevantly provide 9a 1 compensation payable act respect injury unless employment concerned substantial contributing factor injury 11a 1 compensation payable act respect injury psychological injury injury wholly predominantly caused reasonable action taken proposed taken behalf employer respect transfer demotion promotion performance appraisal discipline retrenchment dismissal worker provision employment benefit worker 13 central arbitrator conclusion finding counselling session held 8 january 2007 significant contributing factor injury event would still work common ground appeal presidential member arbitrator point time expressed conclusion term whether m sapina injury wholly predominantly caused counselling session arbitrator found counselling session constituted reasonable action taken cole myer 14 appeal presidential member wim act 352 appellant challenge arbitrator application 9a complained arbitrator omitted state understanding whole predominant cause requirement wca 11a appellant also complained arbitrator finding fact could satisfy relevant causation test 15 presidential member dealt appeal 354 6 accordingly presidential member material arbitrator together additional submission party relating appeal reason indicated satisfied sufficient information proceed paper without holding conference formal hearing 16 presidential member handed decision 18 january 2008 dismissed appeal entered award favour cole myer considerationnature appeal 352 wim act17 although ground appeal 3 specifically raise issue also underlies application ground appeal 1 2 accordingly referring detail reason presidential member necessary explain clearly nature appeal pursuant wim act 352 18 proper approach presidential member task appeal way review purpose wim act 352 discussed court number occasion 19 instate transit authority new south wale v chemler 2007 nswca 249spigelman cj basten ja bryson ja agreed former adding relevant comment discussed notion appeal way review 352 case concerned application wca s 9a 11a mr chemler claimed subjected racial harassment vilification workplace causing psychological injury earlier court appeal decision 2006 nswca 249 set aside earlier decision presidential member complaint made mr chemler second appeal point law court appeal wim act 353 1 presidential member given respect conclusion arbitrator saw witness least remitted matter fact finder witness could heard seen submission carried proposition involving limited notion review presidential member limit upon power make new decision 352 7 20 chief justice made clear 22 28 30 task presidential member conduct appeal way reviewon meritsand course important safeguard proper operation legislative scheme chief justice stated following 28 30 28 concept review merit wider concept appeal judicial context well established line authority use terminology review instead appeal respect worker compensation system state establishes breadth review merit 29 line authority also inconsistent kind restriction power presidential member appellant contends seemansini v director general education 1990 nswcc 7 1990 6 nswccr 1at pp4 20 watson v hanimex colour service pty limited 1992 8 nswccr 190at 199 206 boston clothing co v margaronis 1992 27 nswlr 580at 584 585 litynski v albion steel pty limited 1994 10 nswccr 287at 295 297 c f 298 300 aluminium louvre ceiling pty limited v zheng 2006 nswca 34at 38 south western area health service v edmonds 2007 nswca 16at 133 134 30 presidential member exercising power review decisionmust decide whether original decision wrong often put context administrative appeal merit must decide true correct view decide substitute view unless appropriate case remit power remit constrained manner appellant contends emphasis added 21 necessary refer case referred chief justice 29 length ensure content chief justice reason pellucid 22 inmansiniat 4 20 burke ccj comprehensive analysis set notion review thecompensation court act 1984 nsw 36 1 following term 1 commissioner registrar make decision act proceeding court may application party review decision act may make order way confirmation variation discharge otherwise court think fit 23 made clear 19 20 review word wide import limited notion appeal strict sense finding error given honour view shortly thereafter subsumed comprehensively expressed view judgment court unnecessary set full honour view nevertheless assistance understand spigelman cj referred burke ccj view review context contemplated unfettered reconsideration evaluation decision material upon based judge bound parameter usual form appeal whether way rehearing strict sense 24 inwatsonat 199 206 kirby p considered meaning appeal review context same 36 honour concluded 199 plain history legislation review appeal kirby p analysed meaning review saying following 205 206 undesirable attempt delimit exactly scope review contemplated section 36 act given juxtaposition appeal would certainly agree appellant proposition something wider narrow form reconsideration appeal strictly called contemplated fact decision commissioner reviewed postulated judge compensation court start blank page formal decision person making taken court thus unless review persuades judge order reviewed varied discharged otherwise disturbed order review stand binding party suggests need part aggrieved party provide proper basis disturbing decision challenge invoking review procedure sweep aside effect decision remains valid unless judge review otherwise order would also agree review confined narrow kind appeal allowed discretionary decision error principle must shown believe intention parliament providing review make harder party challenging decision secure effective reconsideration judge would case appeal retained previously provided various reason concluding include two tiered structure compensation court kind matter normally assigned commissioner provision future general appeal including fact award judge importance decision may made commissioner affecting welfare worker imposing significant obligation employer fact prerogative process apart mean reconsideration available disaffected party review provided section 36 theseindiciasuggest proper case open judge compensation court conducting review permit evidence adduced evidence may repetition whole part evidence taken commissioner may entirely fresh evidence received commissioner even offered 25 view kirby p might seen draw back somewhat burke ccj said inmansini aspect burke ccj description put one mind complete hearingde novo example said inmansiniat 19 essentially retrial issue though shortly thereafter said transcript etc available usually done document kirby p hand clearly identified review wider appeal strictly called honour thus seen describe process merely correction error even appeal way rehearing task correction error take place seefox v percy 2003 hca 22 2003 214 clr 118and high court authority referred incosta v public trustee 2008 nswca 223and inbranir v owston nominee 2 ptylimited 2001 fca 1833 117 fcr 424at 20 32 includingallesch v maunz 2000 hca 40 203 clr 172 26 presidential member citedallesch v maunzin support proposition task correction error reason seek demonstrate wrong test appeal way review also incomplete description task appeal way rehearing though concept relevant test task either 27 inwatson handley ja agreed generally kirby p reason subject comment particular rule compensation court rule concerning recalling witness hope aja agreed kirby p reason subject qualification handley ja honour took somewhat limited view kirby p calling evidence review called commissioner 28watsonwas reconsidered inagfa gavaert ltd v lee 1992 nswca 4 doubt cast correctness 29 inboston clothing submission put review limited appeal kirby p waddell aja samuel aja agreed described submission follows 587 employer urged function review case assimilated review court registrar decision much circumscribed appeal disturbance except extreme case seeschweppes 183 72 73 case review decision taxing officer court alternatively put review confined case real substantial ground questioning correctness primary decision see street j induffy v super centre development corporation ltd 1967 1 nswr 382at 383 case review decision court appointed receiver manager company 30 kirby p rejected submission saying 587 care must taken lifting judicial comment context meaning ascribed review statutory provision superintendence decision taxing officer bill cost receiver manager administering company order court quite different meaning given review judge decision commissioner compensation court pointed commissioner purpose act compensation court decision made affect substantial right large consequence worker employer confined minutia detailed administrative like decision determine substantive entitlement statute often intended provide mean sustenance injured worker nothing act would warrant confining review performed judge narrow circumstance limited case suggested employer contrary history legislation nature purpose function assigned judge suggest aswatsonheld much larger power conferred facility review power doubt took account respective training experience office judge compensation court commissioner seecompensation court act 22 3 first submission employer view contrary holding court inwatson adopted unduly narrow view function judge review therefore rejected 31 two aspect noted passage first restated view inwatsonthat review process wider appeal process strictly called wider case review kind exhibited inschweppes ltd v archer 1934 nswstrp 17 1934 34 sr nsw 178andduffy v super centre development corporation ltd 1967 1 nswr 382referred inboston clothingat 587 similar case referred inwatsonat 203 205 secondly view inwatsonthat recognised place respect given decision commissioner reaffirmed 32 inlitynskiat 296 297 gleeson cj handley ja agreed discussed notion review in 36 pointing dealing whole matter afresh de novo nevertheless wide concept context oflitynskiwas appeal decision burke ccj given beforewatsonandboston clothingwere published review came hearing burke ccj new counsel sought without notice run entirely different case additional evidence burke ccj declined application argument concluding burke ccj unduly restricted nature review gleeson cj disagreed saying 296 297 n judgment present case burke ccj said prepared assume thatsection 36provided widest form review mean nobody ever suggested procedure whichsection 36allows procedure involved appeal magistrate district court judge special procedure origin historical circumstance discussed inr v longshaw 1990 20 nswlr 564 person convicted justice peace right case reheard court quarter session whose obligation deal whole matter afresh subject procedural provision laid statute concerned discretionary power review accepting concept review wider flexible least form appeal existence power compensation court judge decline review raise possibility need consider question kind addressed burke ccj 33 gleeson cj referred towatsonandboston clothing without disapproval though kirby p dissent author leading judgment inwatsonandboston clothing comment 299 230 apposite compensation legislation beneficial protective worker allege injured work facility review whether behest worker employer insurer given narrow construction court repeatedly held 34 important also repeat something said kirby p inaustralian gas light co v samuel 1993 9 nswccr 616at 623 though dissent process review special procedure established within specialised tribunal recognise particular skill judge tribunal enjoy refine year considering large number like claim many large part determined paper without oral evidence whilst precisely reflecting present structure arbitrator presidential member passage remind one importance present structure proper role deployment particular skill presidential member provide merit review 35 inagl v samuel meagher ja said 625 review involved review considered court inwatson v hanimex colour service pty ltd 1992 8 nswccr 190 mean judge wider power would involved mere appeal wide treat primary decision exist 36 handley ja referred 630 towatsonandboston clothingas elucidating proper scope review 37 inaluminium louvre v zheng bryson ja handley ja bell j agree dealing wim act 352 said following 38 review different process appeal matter may considered manner may considered somewhat wider seeboston clothing co pty ltd v margaronis 584 kirby p attack review otherwise arbitrator discretionary decision controlling procedure may based test stated inhouse v r 1936 hca 40 1936 55 clr 499at 504 505 basis presidential member may act power presidential member review somewhat wider extend power reopen consideration matter arbitrator disposed manner power presidential member exercised subject discretion presidential member see ground upon could doubted deputy president acted within discretionary power disposing matter rule law required arbitrator limit cross examination view want procedural fairness view deputy president could reasonably reach without error law case arbitrator limited cross examination presidential member concluded denial procedural fairness 38 insouth west area health service v edmondsmccoll ja giles ja tobias ja relevantly agreed cited bryson ja inaluminium louvre v zhengat 134 approval 39 indepartment education training v sinclair 2005 nswca 465 spigelman cj hodgson ja bryson ja agreed found error approach sheahan j said 67 69 67 sheahan j exercising statutory jurisdiction review arbitrator decision honour conducted reassessment evidence respect whether appellant discharged onus assumed party rest appellant sole predominant cause psychological injury suffered respondent reasonable action taken proposed taken respect discipline honour rejected one ground upon arbitrator relied e transfer reasonable nothing honour reason indicated thereupon applied statutory formula made judgment respect 68 appellant submits honour either failed apply statutory formula failed set reason either event point law arises entitles court intervene 69 view submission made opinion necessary honour form judgment whether sole predominant cause employer contribution respondent psychological injury reasonable action part appellant express reason conclusion statutory test could satisfied merely identifying two respect appellant conduct unreasonable remained necessary determine whether notwithstanding blemish decision making process reasonable action sole predominant cause submission honour incumbent upon determine whether sole predominant cause employer reasonable action circumstance investigation delay completing transfer found reasonable honour address issue emphasis added 40 inchemler basten ja made following comment 63 65 63 procedural challenge must therefore depend upon proposition put written submission open deputy president reverse finding fact made arbitrator proposition based assertion appeal undertaken deputy president nature review therefore hearing de novo presumably meant 352 1 permitted appeal decision arbitrator presidential member considering appeal required identify error part arbitrator 64 several difficulty approach first appears depend upon classification appeal accordance terminology adopted inbuilders licensing board v sperway construction syd pty ltd 1976 hca 62 1976 135 clr 616at 621 622 mason j recently identified incoal allied operation pty ltd v australian industrials relation commission 2000 hca 47 2000 203 clr 194at 11 14 even appeal placed one class rather another matter statutory construction nature appeal way review seen constrained section 352 7 permit presidential member confirm decision revoke make new decision place 354 permit commission conduct proceeding little formality technicality proper consideration matter permit bound rule evidence act according equity good conscience substantial merit case without regard technicality legal form 354 3 particular commission relieved obligation conduct proceeding formal hearing may conduct way conference party without holding conference formal hearing 354 4 6 65 precise scope provision 354 depend upon circumstance operation arises doubt commission required apply substantive rule law applicable jurisdiction comply rule procedural fairness although content latter may affected term provision see generallysue v hill 1999 hca 30 1999 199 clr 462at 42 gleeson cj gummow hayne jj qantas airway ltd v gubbins 1992 28 nswlr 26at 29 gleeson cj handley ja italiano v carbone 2005 nswca 177at 70 south western sydney area health service v edmonds 2007 nswca 16at 87 94 mccoll ja tobias giles jja agreeing andhaider v jp morgan holding aust ltd 2007 nswca 158at 42 long party notice reasonable opportunity address case reason suppose commission liberty determine proceed whether make new decision different approach may apply relation grant leave appeal issue present case cfre coldham ex parte brideson 2 1990 hca 36 1990 170 clr 267at 275 deane gaudron mchugh jj 41 infletcher international export pty ltd v barrow 2007 nswca 244at 19 mason p santow ja tobias ja agreed referred towatsonandaluminium louvre v zhengas explicatory notion appeal way review 352 5 42 insiddick v workcover authority new south wale 2008 nswca 116 70 81 mccoll ja mason p giles ja agreed examined notion review context wim act 328 referred towatson boston clothing agl v samuel litynski aluminium louvre v zhengandchemler 43 induinker v st vincent de paul society aged special service limited lewisham nursing home 2008 nswca 127the question finding credit arbitrator dealt presidential member appeal way review hodgson ja beazley ja mccoll ja agreed referred towatson boston clothing chemlerandedmonds honour posed question 31 31 passage inchemlerraise clearly resolve two question relevant present case 1 presidential member identify error intervening 2 presidential member bound apply theabalosprinciple 44 honour said following 32 33 32 regard first question generally case appeal court dealing appeal first instance judge intervene question fact unless affirmatively satisfied decision first instance judge wrong particularly significant relation matter mind may reasonably differ assessment reasonable care requires relation matter appeal court recognises mind may reasonably differ even view approaching matterde novo would different primary judge substitute view unless satisfied primary judge view wrong sense one reasonably available vitiated error question whether approach applies case review 353 wim act could significant particularly relation question whether worker employment substantial contributing factor injury withins 9aof theworkers compensation act1987
Applicant: Soon Keum Jung Principal: Young Wook Choi IRT Reference: N94_00948 #number 5198 [1995] IRTA 5198 (26 April 1995).txt	applicant soon keum jung principal young wook choi irt reference n94 00948 number 5198 1995 irta 5198 26 april 1995 young wook choidecision kim ross member delivered sydney 26 april 1995class 812 december 1989 temporary entry permit whether nominator would suffer extreme hardship irreparable prejudice applicant refused entry permit applicant provided assistance elderly widow nominator poor health tribunal found applicant always providing present level practical emotional support relevant date nominator daughter member church could provide assistance decision affirmed migration regulation r 131aimmigration review tribunalstatement decision reason decisionirt decision n94 00948 5198 docapplicant soon keum jungprincipal young wook choitribunal kim rosspresiding memberdate 26 april 1995place sydneydecision affirm decision review refusing application december 1989 temporary entry permit decision reviewthis review decision delegate minister immigration ethnic affair refuse december 1989 temporary entry permit young wook choi principal application lodged 17 december 1991 rejected 31 may 1994 application review lodged 5 july 1994 soon keum jung nominator original application application based claim soon keum jung would suffer extreme hardship irreparable prejudice young wook choi refused entry permit legislationas result coming force themigration reform act 1992on 1 september 1994 australian migration law undergone significant change accordance withregulation 23of themigration reform transitional provision regulation principal application case taken application transitional temporary visa new law purpose resemble entry permit would granted law force 1 september 1994 however application still decided according criterion applied entry permit application originally made regulation applicable case therefore 1989 migration regulation criterion grant december 1989 temporary entry permit found item 59a class 2 schedule 3 migration regulation specific criterion set regulation 131a requires applicant entry permit prohibited non citizen 18 december 1989 left australia since 18 december 1989 applies 19 december 1993 entry permit far relevant application regulation 131a requires 15 october 1990 continuously date decision refusal grant entry permit would cause extreme hardship irreparable prejudice australian citizen permanent resident australian citizen permanent resident must nominator applicant entry criterion deal health public interest criterion assurance support notification department change address tribunal taken note policy direction issued minister section 499 previouslysection 179 themigration act 1958in respect exercise power regulation 131a evidencein undertaking review tribunal regard material departmental file principal oral evidence following soon keum jung young wook choi principal citizen korea born 9 august 1961 arrived australia 4 december 1987 issued temporary entry permit valid 20 march 1988 issued subsequent entry permit wife two dependent child included application reside permanently australia evidence departmental file principal includes written statement dated 16 december 1991 nominator applicant review soon keum jung statement indicates known principal young wook choi two year meeting korean church add family clan known one another slightly korea statement also indicates mr choi come depend family time particular close knitted bond u inseparable stage sic mr choi go say lonely disconsolate cultural reason suffers diabetes high blood pressure rheumatism many ailment afflict elderly according statement principal wife assist psychologically physically result statement indicates mr jung would suffer extreme hardship without assistance mr mr choi report dated 14 december 1991 dr janet kim state doctor treated mr jung soon keum sic poorly controlled hypertension complicated non insulin dependent diabetes dependent diabetes osteoporosis osteoarthritis lower back dr kim state osteoporosis osteoarthritis limit mr jung adequate mobility mr jung requires looked letter dated 10 june 1993 principal refers nephew niece living family would suffer family return korea however evidence tribunal indicates nephew niece permanent resident australia therefore effect upon refusal entry permit principal relevant tribunal consideration statutory declaration dated 12 june 1993 chang suk lee state known young wook choi since mid 1989 aware latter providing assistance mr jung know health complication require constant assistance care provided mr choi according chang suk lee mr choi look mr jung sick transport medical social appointment statement express view mr jung dependent upon mr choi mr jung would suffer extreme hardship allowed stay similar evidence given statutory declaration dated 12 june 1993 chi ho jung friend mr choi letter dated 9 june 1993 nominator applicant review soon keum jung state widow long time youngest daughter life child occupied life youngest daughter student lot time care applicant young wook choi however assist transportation medical appointment social gathering spends hour chatting consoling depressed lonely say person rely able confide according mr jung statement would suffer extreme hardship irreparable prejudice mr choi family permitted stay australia oral evidence applicant confirmed youngest daughter life attended university last three year high school student older daughter whose invitation came australia 1984 life king langley applicant lived elder daughter late 1988 1989 left felt uncomfortable mr jung widow since age 32 since leaving elder daughter home late 1988 later 1989 developed health problem depended great deal principal transport medical appointment social occasion mr mr choi live suburb mr jung member congregation older daughter also attends church see often daughter busy life considerable distance away oral evidence given principal may summarised follows see mr jung twice week help go hospital also visit meal provides companionship met mr jung church town korea became close approximately 1991 eighteen month two year moved older daughter house although mr jung two daughter son according korean tradition particularly important like son mr jung would miss much leave finding conclusionsthe principal became prohibited non citizen expiry temporary entry permit 19 december 1989 status illegal entrant tribunal accepts young wook choi family formed close bond soon keum jung tribunal also accepts elderly widow poor health applicant review time relying heavily assistance provided principal family however mr jung two daughter living sydney one family life distance nevertheless see mother regularly church would capable providing mother assistance may require moreover mr jung younger daughter although student life provide emotional practical support mr jung also member congregation attends regularly provide social psychological support mr choi oral evidence suggested role played supporting mr jung developed time left elder daughter home balance tribunal find mr choi providing present level practical emotional assistance mr jung since october 1990 even tribunal satisfied mr jung would suffer extreme hardship irreparable prejudice absence mr choi family view source comfort assistance available accordingly tribunal satisfied principal meet criterion compassionate ground ground grant december 1989 temporary entry permit decisionthe tribunal affirms decision review refusing application december 1989 temporary entry permit kim rosspresiding member
4 yearly review of modern awards - Fast Food Industry Award 2010 [2019] FWCFB 6673 (1 October 2019).txt	4 yearly review modern award fast food industry award 2010 2019 fwcfb 6673 1 october 2019 last updated 2 october 2019 2019 fwcfb 6673fair work commissiondecisionfair work act 2009s 156 4yearly review modern awards4 yearly review modern award fast food industry award 2010 am2017 49 fast food industryjustice ross presidentdeputy president massoncommissioner leemelbourne 1 october 2019fast food industry award 2010 award stage substantive issues1 introduction 1 decision 1 issued 20 february 2019 thefebruary 2019 decision addressed two substantive claim vary thefast food industry award 2010 fast food award sought vary award insert facilitative provision allow employer majority employee concerned agree vary end time evening penalty rate 6 00am 5 00am ii new part time clause permit flexible part time work 2 rejected proposed facilitative provision basis proposed variation lacked merit award varied manner proposed would achieve modern award objective also rejected ai group proposed flexible part time clause noted rejection claim end matter expressed theprovisionalview current award place unwarranted restriction capacity vary part time hour 2 noting evidence u suggests requirement employer employee agree writing variation actual hoursbeforethey occur impracticable imposes administrative burden upon employer 3 3 existing award provision subject observation clause 12 3 12 4 fast food award 12 3 agreement vary regular pattern work made writing variation occurs 12 4 agreement variation retained employer copy given employer employee 4 expressed followingprovisionalviews respect term agreed variation need recordedbeforethe variation occurs sufficient record variation end relevant shift unnecessary provide copy agreed variation employee sufficient record retained employer clarification meaning writing may appropriate 4 5 last point noted part time casuals full bench varied clause 25 5 c thesocial community home care disability service industry award 2010in order clarify rostering arrangement change roster may communicated electronic mean communication example text message equivalent provision clause 25 5 c varied included clause 22 6 aged care award 5 6 clause 22 6 f theaged care award 2010 varied state f rostering arrangement change roster may communicated telephone direct contact mail email facsimile electronic mean communication 7 noted provision relates roster change may also utility context variation employee agreed regular pattern work 8 following thefebruary 2019 decisiontwo conference held deputy president masson 21 march 2019 12 april 2019 purpose conference provide interested party opportunity comment theprovisionalviews set discus drafting appropriate variation give effect thoseprovisionalviews event ultimately confirmed full bench position taken party conference set areportissued deputy president masson 27 may 2019 various draft clause reflecting aboveprovisionalviews discussed conference deputy president masson attachment c report set view sda ai group respect draft clause provided discussion party accept report accurately summarises respective position 9 decision 6 issued 4 july 2019 thejuly 2019 decision gave consideration theprovisionalviews expressed noted raffwu generally opposes variation clause 12 accordance ourprovisionalviews gave detailed consideration raffwu submission concluded clause 12 place unwarranted restriction capacity vary part time hour varied give effect ourprovisionalviews 10 noted thejuly 2019 decision sda ai group support variation clause 12 remove unwarranted restriction capacity vary part time hour party broad agreement clause 12 varied variation agreed regular pattern work need recorded variation occurs recording permitted occur later time andneed provided employee sufficient record retained employer 11 sda ai group supported variation clause 12 clarify recording variation agreed regular hour may occur electronic mean issue dispute concerned translation agreed principle practice three contentious issue point variation agreed regular pattern work must recorded ii interaction meal break iii whether overtime payable circumstance record agreed variation 12 thejuly 2019 decisiondetermined issue dispute conclusion relation issue set point variation must recorded 13 persuaded appropriate extend flexibility recording agreed variation particular rostered shift beyond end affected shift adopted sda proposed wording clause 12 3 agreement vary regular pattern work particular rostered shift must recorded end affected shift ii interaction meal break 14 ai group sda acknowledged clause 27 1 requires amendment consequence proposed change clause 12 disagreed form amendment 15 course oral argument emerged issue dispute quite limited one way resolving dispute would include express reference clause 12 2 follows 27 1 break work period time taking rest meal break duration meal break form part roster subject agreement reached clause 12 2 regarding part time employee regular pattern work agreed variation pursuant sub clause 12 3 12 4 may include variation time taking rest meal break 16 issue although precise form word used put party course oral argument party opposed variation clause 27 1 include express reference clause 12 2 instead existing word subject roster provision award 7 however evident exchange hearing party sought opportunity consider issue proposed draft agreed course provided opportunity comment proposed variation clause 27 1 part process settling variation determination arising proceeding deal party subsequent submission shortly iii overtime payable 17 sda proposed variation clause 12 5 26 2 effect absence record agreement vary part time employee hour relation particular rostered shift time worked excess hour agreed part employee agreed regular patter work paid overtime rate submitted variation proposed provides protection employee agreed work additional hour 8 accepted variation proposed sda necessary achieve modern award objective 18 july 2019 decision concluded award varied manner proposed draft determination set attachment decision would provide fair relevant minimum safety net term condition variation necessary achieve modern award objective 79 july 2019 decision set next step relation conclusion issue variation propose make set draft variation determination attached decision see attachment propose provide interested party final opportunity comment draft variation determination particular variation referred 55 56 comment made writing toamod fwc gov auby later 18 july 2019 outstanding issue determined based written material filed unless request oral hearing received 18 july 2019 19 submission response draft variation determination filed ai groupnational retail associationraffwusda 20 party requested oral hearing hence outstanding issue determined paper 21 convenient deal first submission raffwu sda 22 raffwu advance submission relation draft variation determination comment nra submission shall turn shortly 23 sda oppose draft determination make following suggestion amend drafting clause 26 2 e e hour worked part time employeesin excess excessof agreed hour clause 12 2 ii excess agreed hour varied clause 12 3 12 4 24 agree sda suggestion amend variation determination accordingly 25 turn nra ai group submission 26 nra submission 15 july 2019 express concern utility effectiveness element proposed variation nra submission raise two substantive matter consequential amendment note outset none amendment nra received support party indeed ai group opposed nra proposed amendment concept pattern work 27 proposed variation clause 12 award include two variation sub clause 12 3 12 4 allow variation pattern work part time employee 28 proposed new sub clause 12 3 relevantly read follows 12 3the employer employee may agree vary agreement made clause 12 2 relation particular rostered shift follows agreement vary theregular pattern workfor particular rostered shift must recorded end affected shift emphasis added 29 proposed new sub clause 12 4 relevantly read 12 4the employer employee may agree vary agreement made clause 12 2 respect regular pattern work ongoing basis specified period time follows 30 expression regular pattern work derived clause 12 2 provides 12 2at time first employed employer part time employee agree writing aregular pattern work specifying least 31 nra note expression regular pattern work defined term legislative sense meaning instead inferred surrounding text regard sub clause 12 2 specifies item must included agreement entered sub clause includes regular pattern work follows 12 2at time first employed employer part time employee agree writing regular pattern work specifying least number hour worked day b day week employee work c actual starting finishing time day variation writing including electronic mean communication example text message e daily engagement minimum 3 consecutive hour f time taking duration meal break 32 nra submits clear face sub clause 12 2 whether expression regular pattern work mean paragraph b c sub clause paragraph b c six paragraph listed sub clause 12 2 submits absence concrete definition expression regular pattern work susceptible taking ordinary natural meaning day time within part time employee performs work mean possible expression regular patter work proposed new sub clause 12 3 12 4 refers item specified paragraph b c sub clause 12 2 33 nra contends interpretation would still allow flexibility roster part time employee may varied however may generate obstacle part time employee agreeing increase decrease total number hour work contemplated paragraph sub clause 12 2 34 nra acknowledges fast food award highly inflexible treatment part time employee appropriate structural impediment prohibit employer effectively providing additional hour part time employee ought minimized address issue nra proposes clause 12 3 12 4 amended include word including total number hour worked incidence expression regular pattern work 35 raffwu opposes amendment proposed nra note submission nra 15 july 2019 nra every opportunity participate process fair work commission chose relation attempt define regular pattern work submit clause clear term including specifying 6 dot point contribute meaning regular pattern work work sought done nra done first three sixth dot point attempting define term term used award much larger matter ought canvassed ordinary way rather late application disguised commentary draft determination 36 reply ai group submits meaning expression regular pattern work clause 12 2 currently set item 1 draft determination clear necessary proposed clause 12 3 12 4 amended proposed nra 37 agree ai group 38 proposed clause 12 2 set minimum requirement written agreement employer part time employee relation regular pattern work provides employer part time employee agree writing regular pattern work specifying least minimum requirement articulated sub clause f proposed clause 12 2 39 regard phrase regular pattern work context within clause 12 2 meaning clear item clause 12 2 f exception machinery term respect variation pattern work recorded follows regular pattern work encompasses matter contained sub clause f proposed clause 12 2 excluding sub clause 12 2 ii redundant specification electronic form writing 40 proposed new sub clause 12 3 12 4 include specific reference electronic communication valid mean recording agreement made accordance sub clause similar variation appears sub clause 12 2 41 specifically sub clause 12 2 12 3 b 12 4 b provide follows 12 2 variation writing including electronic mean communication example text message emphasis 12 3 b employer must keep copy agreed variation writing including electronic mean communicationand provide copy employee requested emphasis 12 4 b agreed variation must recorded writing including electronic mean communication emphasis 42 nra view expression electronic mean communication redundant regard applicable legislation intended achieved inclusion expression proposed new sub clause 43 nra submits modern award industrial instrument made power conferred fair work commission predecessor legislation fall within ambit ofsection 46of theacts interpretation act 1901 cth act applies interpretation modern award 2bof theacts interpretation act 1901 cth defines writing appears act instrument act applies follows writingincludes mode representing reproducing word figure drawing symbol visible form 44 basis nra contends expression writing appears clause 12 fast food award currently includes writing electronic format accordingly utility including express reference electronic communication largely redundant 45 nra also submits expressly validating electronic communication one modern award without similar express validation modern award may result conclusion among business operator absence express validation applicable award electronic communication effective mean managing business 46 considering specific example text message proposed variation sub clause 12 2 nra submits appears intention behind proposed variation validate electronic form communication per se make clear particular formality required order make vary agreement various sub clause clause 12 47 nra submits intention full bench validate electronic communication rather validate informality often inherent communication reference electronic communication form writing necessary deleted 48 nra submits amendment proposed give better effect outcome belief intended full bench proposed draft determination 49 ai group opposes variation proposed nra noting nra submission appear proceed basis full bench proposed variation make clear particular formality required order make vary agreement validate informality come communication ai group note nra advance basis upon made presumption submits event presumption misplaced 50 ai group submits full bench including reference electronic mean communication example text message appropriately regard conclusion part time casuals decision 9 form communication reflected 134 1 need promote flexible modern work practice b evidentiary finding ai group sought full bench make including regularity employee changing availability 10 ii requirement current clause posing administrative burden 11 51 ai group note earlier proceeding matter ai group sda supported variation clause 12 clarify recording variation agreed regular hour may occur electronic mean draft determination reflects agreement 52 ai group submits matter nra raised already dealt adequately commission addition cogent reason advanced nra depart july decision assumption underpin submission misplaced 53 agree ai group would also observe inclusion word including electronic mean communication proposed subclauses 12 2 12 3 b 12 4 b assist making award simple easy understand consistent 134 1 g 54 noted nra contends including expression without similar express validation electronic communication modern award may result conclusion among business operator absence express validation applicable award electronic communication effective mean managing business 12 two point may made relation nra contention 55 first first occasion expression included modern award example toil model term access award ne standard term appear modern award include reference providing information electronic mean toil model term includes following note note example type toil agreement required clause set schedule x requirement use form toil agreement set schedule x toil agreement also madeby exchange email employee employer electronic mean 56 access award ne standard term provides follows employer must ensure copy award ne available employee apply either noticeboard conveniently located near workplaceor electronic mean whichever make accessible emphasis added 57 second point potential problem identified nra entirely speculative evidence business operator reaching conclusion identified nra based existing award term make express reference electronic communication iii consequential amendment 58 two consequential amendment proposed 59 first nra submits proposed form clause 27 1 revised including express reference clause 12 2 marked version proposed amendment set time taking rest meal break duration meal break part roster subject agreement reached clause 12 2 regarding part time employee regular pattern work agreed variation pursuant sub clause 12 2 12 3 12 4 may include variation time taking rest meal break 60 second nra note paragraph structure proposed new clause 12 3 inconsistent drafting practice paragraph b clause related whilst paragraph c clause independent preceding two paragraph nra proposes clause 12 3 streamlined removing clause 12 3 b c amending clause 12 5 appropriately moving content clause 12 3 body clause 12 3 61 nra also belief current wording clause 12 4 utilises excessive redundancy language proposes belief streamlined form word 62 nra also proposes various grammatical amendment draft determination includes removing reference expression additional hour proposed new clause 26 2 f basis expression technical meaning undersection 62of thefair work act 2009and context remainder clause redundant 63 change proposed nra mark set 12 3the employer employee may agree vary agreement made clause 12 2 relation particular shiftas follows provided agreement vary regular pattern work including total number hour rostered shift must recorded writing end affected shift b employer must keep copy agreed variation writing including electronic mean communication provide copy employee requested c event record agreed variation particular rostered shift retained employee paid overtime rate hour worked excess regular pattern work 12 4the employer employee may agree vary agreement made clause 12 2 respect regular pattern work including total number hour ongoing basis specified period time provided agreement recorded writing variation occurs follows agreement vary regular pattern work ongoing basis specified period time must recorded variation occurs b agreed variation must recorded writing including electronic mean communication 12 5the employer must keep copy agreement made clause 12 2 agreed variation made clause 12 2 12 3 12 4 case variation agreed clause 12 3 provide copy agreement employee requested b case provide copy agreement employee c copy variation made clause 12 2 12 3 12 4 kept employer employee paid overtime rate worked excess regular pattern work 26 2a full time part time employee shall paid overtime work follows iin excess 38 hour per week average 38 hour per week averaged four week period ii five day per week six day one week following week ordinary hour worked four day iii eleven hour one day b bbefore employee rostered commencing time one day c aafter employee rostered ceasing time one day ooutside ordinary hour work e hhours worked part time employee excess hour agreed accordance clause 12 2 ii excess agreed hour varied clause 12 2 12 3 12 4 f anyadditionalhours worked part time employee excess regular pattern work agreed accordance clause 12 2 circumstance written record agreed variation relation particular rostered shift 64 ai group opposes nra proposed variation noting drafting clause 12 subject extensive discussion consideration party commission ai group submits nra submission establish reasonably arguable basis commission could satisfied proposed variation necessary 65 ai group contends nra proposal distinguish employer obligation relation record agreement vary regular pattern work particular shift obligation relation record agreement made respect regular pattern work ongoing basis specified period time ai group submits nra proposal would require employer pay overtime rate time worked employee excess regular pattern work record agreed variation retained case 66 ai group submits reject inclusion clause 12 5 c proposed nra following reason clause necessary meet modern award objective set section 134 fw act nra provided submission conclusion reached july 2019 decision draft determination appropriately promoted flexible modern work practice 13 reduced employment cost regulatory burden 14 provided fair relevant minimum safety net term condition 15 ill founded ii throughout proceeding extensive consideration given party commission manner flexible part time arrangement expressed stage proceeding submitted party proposed commission overtime rate apply manner proposed nra 67 persuaded first proposed change inclusion reference sub clause 12 2 clause 27 1 appropriate cross reference clause 27 1 refer part clause 12 deal thevariationof agreement made clause 12 2 sub clause 12 2 character 68 accept part second suite change proposed nra agree nra submission paragraph b proposed clause 12 3 related paragraph c propose amend draft determination follows 12 3the employer employee may agree vary agreement made clause 12 2 relation particular rostered shiftas followsprovided agreement vary regular pattern work particular rostered shift must recorded end affected shift b employer must keep copy agreed variation writing including electronic mean communication provide copy employee requested 12 4 c event record agreed variation particular rostered shift clause 12 3 isretainedkept employer employee paid overtime rate hour worked excess regular pattern work 69 also agree nra proposed variation clause 12 4 draft determination subject addition expression including electronic mean communication deletion including total number hour set 12 4the employer employee may agree vary agreement made clause 12 2 respect regular pattern work ongoing basis specified period time provided agreement recorded writing including electronic mean communication variation occurs follows agreement vary regular pattern work ongoing basis specified period time must recorded variation occurs b agreed variation must recorded writing including electronic mean communication 70 also agree nra proposed amendment clause 26 2 draft determination save proposed cross reference clause 12 2 clause 26 2 e 71 turn ai group submission ai group advance three proposed amendment draft determination clause 12 3 multiple agreement respect single shift 72 ai group contends clear proposed clause 12 3 whether employer employee may agree multiple change single shift done whether change could recorded single record submitted conceivable multiple agreement may struck respect single shift example employee may asked agree start shift early throughout course shift asked agree remain work beyond end original shift finish time due requirement unforeseen commencement shift 16 accommodate scenario ai group submits clause 12 3 amended collection agreement arrived need recorded single written record end shift 73 ai group submission unpersuasive evidentiary basis provided contention multiple agreement may struck respect single shift propose make amendment sought ii clause 26 2 overtime 74 ai group also identified concern respect proposed clause 26 2 draft determination namely term sub clause 26 2 b c application part time employee may create uncertainty context ability part time employee flex without payment overtime contemplated 26 2 e submitted result would inconsistent 134 1 g 26 2 b c limited full time employee maintain ability part time employee flex without paying overtime contemplated 26 2 e 75 addition potential uncertainty ai group also contends sub clause unnecessary respect part time employee effect sub clause 26 2 b c already captured sub clause 26 2 e read conjunction clause 12 2 particular proposed clause 12 3 12 4 draft determination enable employer employee vary agreement made clause 12 2 variation may extend number hour worked particular day 12 2 day shift worked 12 2 b start time shift 12 2 c finish time shift 12 2 c 76 effect proposed sub clause 26 2 e virtue cross reference sub clause 12 2 replicate effect sub clause 26 2 b c therefore unnecessary potentially source confusion apply clause 26 2 b 26 2 e part time employee 77 ai group suggest would useful sub clause 26 2 e amended clarify overtime payable hour worked part time employee excess agreed hour clause 12 2 absence variation clause 12 3 12 4 78 amendment proposed ai group set mark 26 2a full time part time employeeovertimeshall paidovertimefor work follows full time part time employee workiin excess 38 hour per week average 38 hour per week averaged four week period ii five day per week six day one week following week ordinary hour worked four day iii eleven hour one day b full time employee work employee rostered commencing time one day c ii employee rostered ceasing time one day iii outside ordinary hour work e c part time employee additionalhhoursworkedby part time employeesin excess variation clause 12 3 12 4 excess ofthe agreed hour clause 12 2 ii excess agreed hour varied clause 12 3 12 4 f additional hour worked part time employee iii excess regular pattern work circumstance written record agreed variation particular rostered shift 79 contrary ai group assertion persuaded term proposed sub clause 26 2 b c may create uncertainty respect ability part time employee flex e vary regular pattern work increasing hour work without giving rise entitlement overtime payment 80 clear clause 12 3 12 5 employer part time employee may agree vary employee agreed regular pattern work either relation particular rostered shift ongoing basis specified period time clause 26 2 e make clear hour workedin excessof part time employee agreed hour varied clause 12 3 12 5 attracts overtime payment conclusion 81 amendment intend make draft variation determination set mark atattachment 82 reason given july 2019 decision 17 concluded fast food award varied accordance draft variation determination set attachment would provide fair relevant minimum safety net term condition variation necessary achieve modern award objective reaching conclusion taken account 134 consideration 18 presidentattachment adraft determinationfair work act 2009s 156 4yearly review modern awards4 yearly review modern award am2017 49 fast food industry award 2010 ma000003 fast food industryjustice ross presidentdeputy president massoncommissioner leemelbourne 20194 yearly review modern award fast food award 2010 ma000003 full bench decision issued 4 july 2019 19 1 october 2019 2 thefast food industry award 2010 21 varied follows deleting clause 12 inserting 12 1a part time employee employee work le 38 hour per week b reasonably predictable hour work 12 2at time first employed employer part time employee agree writing regular pattern work specifying least number hour worked day b day week employee work c actual starting finishing time day variation writing including electronic mean communication example text message e daily engagement minimum 3 consecutive hour f time taking duration meal break 12 3the employer employee may agree vary agreement made clause 12 2 relation particular rostered shiftas followsprovided agreement vary regular pattern work particular rostered shift must recorded end affected shift b employer must keep copy agreed variation writing including electronic mean communication provide copy employee requested c event record agreed variation particular rostered shift retained employee paid overtime rate hour worked excess regular pattern work 12 4in event record agreed variation particular rostered shift clause 12 3 isretainedkept employer employee paid overtime rate hour worked excess regular pattern work 12 5the employer employee may agree vary agreement made clause 12 2 respect regular pattern work ongoing basis specified period time followsprovided agreement recorded writing including electronic mean communication variation occurs agreement vary regular pattern work ongoing basis specified period time must recorded variation occurs b agreed variation must recorded writing including electronic mean communication 12 6the employer must keep copy agreement made clause 12 2 agreed variation made clause 12 4 provide copy employee 12 7an employer required roster part time employee minimum 3 consecutive hour shift 12 8an employee meet definition part time employee full time employee paid casual employee accordance clause 13 casual employment 12 9a part time employee employed provision clause paid ordinary hour worked rate 1 38th weekly rate prescribed class work performed time worked excess hour agreed clause 12 2 varied clause 12 3 12 4 overtime paid rate prescribed clause 26 overtime deleting clause 26 2 inserting 26 2a full time part time employee shall paid overtime work follows excess 38 hour per week average 38 hour per week averaged four week period ii five day per week six day one week following week ordinary hour worked four day iii eleven hour one day b employee rostered commencing time one day c employee rostered ceasing time one day outside ordinary hour work e hour worked part time employee excess agreed hour clause 12 2 ii excess agreed hour varied clause 12 3 12 4 12 5 f anyadditionalhours worked part time employee excess regular pattern work circumstance written record agreed variation particular rostered shift deleting clause 27 1 inserting time taking rest meal break duration meal break form part roster subject agreement reached clause 12 2 regarding part time employee regular pattern work agreed variation pursuant sub clause 12 3 12 4 may include variation time taking rest meal break b determination come operation insert date accordance withs 165 3 thefair work act 2009this determination take effect start first full pay period start insert date presidentprinted authority commonwealth government printer pr 1 2019 fwcfb 272 2 ibid 151 3 ibid 152 4 ibid 154 5 2017 fwcfb 3541at 645 6 2019 fwcfb 4679 7 ibid 140 146 8 sda submission 20 june 2019 14 9 february decision 155 citing 2017 fwcfb 3541 10 finding sought ai group 9 july 2018 24 11 ibid 25 12 nra submission 15 july 2019 paragraph 4 9 13 2019 fwcfb 4679at 73 14 ibid 15 ibid 78 16 ai group submission 18 july 2019 paragraph 8 17 2019 fwcfb 4679at paragraph 67 77 18 ibid 19 2019 fwcfb 467920printed authority commonwealth government printer pr712778 2019 fwcfb 6673 21 ma000003
1602555 (Refugee) [2016] AATA 3811 (9 May 2016).txt	1602555 refugee 2016 aata 3811 9 may 2016 1602555 refugee 2016 aata 3811 9 may 2016 last updated 24 may 20161602555 refugee 2016 aata 3811 9 may 2016 decision recorddivision migration refugee divisioncase number 1602555country reference chinamember lesley huntdate 9 may 2016place decision brisbanedecision tribunal affirms decision grant applicant protection visa statement made 09 may 2016 1 07pmany reference appearing square bracket indicate information omitted decision pursuant tosection 431of themigration act 1958and replaced generic information allow identification applicant relative dependant statement decision reasonsapplication reviewthis application review decision made delegate minister immigration february 2016 refuse grant applicant protection visa unders 65of themigration act 1958 act applicant claim citizen china applied visa september 2015 delegate refused grant visa basis applicant face real chance serious harm real risk significant harm china criterion protection visathe criterion protection visa set in 36of act schedule 2 themigration regulation 1994 regulation applicant visa must meet one alternative criterion 36 2 aa b c either person respect australia protection obligation refugee criterion complementary protection ground member family unit person person hold protection visa class section 36 2 provides criterion protection visa applicant visa non citizen australia respect minister satisfied australia protection obligation person refugee person refugee case person nationality outside country nationality owing well founded fear persecution unable unwilling avail themself protection country 5h 1 case person without nationality refugee outside country former habitual residence owing well founded fear persecution unable unwilling return country 5h 1 b 5j 1 person well founded fear persecution fear persecuted reason race religion nationality membership particular social group political opinion real chance would persecuted one reason real chance persecution relates area relevant country additional requirement relating well founded fear persecution circumstance person taken fear set s 5j 2 6 s 5k la extracted attachment decision person found meet refugee criterion 36 2 may nevertheless meet criterion grant visa non citizen australia respect minister satisfied australia protection obligation minister substantial ground believing necessary foreseeable consequence removed australia receiving country real risk suffer significant harm 36 2 aa complementary protection criterion meaning significant harm circumstance person taken face real risk significant harm set s 36 2a 2b extracted attachment decision mandatory considerationsin accordance ministerial direction 56 made 499 act tribunal taken account policy guideline prepared department immigration pam3 refugee humanitarian complementary protection guideline pam3 refugee humanitarian refugee law guideline relevant country information assessment prepared department foreign affair trade expressly protection status determination purpose extent relevant decision consideration consideration claim evidencethe issuesthe issue case whether applicant real chance serious harm real risk significant harm political opinion research criticism senior officer china following reason tribunal concluded decision review affirmed backgroundthe applicant arrived australia may 2014 holder passport issued name government people republic china china entered australia holder class tx subclass 771 transit visa applicant detained september 2015 held centre applied protection september 2015 country nationalitythe applicant state sometime entry australia lost passport decision record delegate state basis departmental record satisfied regard applicant claimed identity nationality applicant precluded australia protection 91w 2 evidence tribunal indicate case evidence indicate applicant right enter reside country china tribunal find accordingly applicant national china purpose 36 2 china applicant receiving country purpose 36 2 aa tribunal assessed claim china accordingly claim protectionthe applicant claim protection set departmental file number tribunal additional claim submitted review application applicant appeared hearing tribunal 5 may 2016 claim generally consistent claim outlined initial application protection interview delegate held december 2015 applicant state involved accident 2005 suffered injury affected memory personality clarified hearing memory still affected however capacity provide evidence present argument support application impaired tribunal taken consideration assessing applicant claim following summary applicant claim born year city 1 hebei china lived parent city 1 life however couple year prior coming australia sometimes rented apartment nearby also spent approximately one month city 2 mid 2014 prior approximately one month another city applicant travelled country 1 2012 country 2013 country 2 2013 country 1 2014 applicant formally employed china effect accident however worked private capacity parent financed overseas holiday sometime 2010 applicant made video ridiculing dictatorship likening mao zedong adolf hitler joseph stalin parent showed video friend near home two policeman took parent police station interrogated police subordinate senior officer mr public security bureau hebei province humiliating interrogation applicant parent released without charge action taken applicant parent tell police son created video video published applicant confirmed hearing name ever associated video sometime later mr child involved accident tried leave scene accident detail deleted lot medium coverage incident time government banned medium coverage mr child eventually convicted court law sentenced number year imprisonment payment compensation victim family applicant angry situation corruption research mr found mr wife lot money owned lot property took photograph property went one unit block mr wife owned rented unit spoke people pretended interested buying unit told people spoke keen know sort people lived committed buying way found thing mr applicant obtained lot information someone apartment block however person started ask applicant money stopped going applicant also tried investigate mr bank account research around end 2010 beginning 2011 period time applicant started think followed happened city 1 train station city applicant belief mr henchman following thought must identified security camera apartment block research mr also followed video camera applicant state assaulted number men one city way meet someone swore used foul language hit left side head managed escape get taxi hearing tribunal asked applicant possible could random attack attempted robbery responded mr henchman said attacking challenging bos mr also recognised one men someone followed train station previously applicant stated thought assault occurred early 2014 clarified time physically attacked applicant clarified followed three time one men followed three occasion another men followed twice applicant stated hearing obtained lot information indicating mr corrupt accumulated lot wealth unlawfully stated published article line internet forum mr corruption wealth applicant clarified put name article published internet café used false identification internet café applicant clarified time published anything stated subsequently destroyed information compiled mr deleted line article deleted line forum account stated careful could identified information way however concerned belief captured face security camera apartment block research belief men videoed following applicant stated tried disguise appearance followed anyway applicant stated tried relocating away city 1 city place always found followed applicant clarified hearing longer concerned video made caused parent interrogated police confirmed parent questioned police certain parent give name police connected way video confirmed tribunal longer worried video however still concerned mr harm return china applicant clarified obtained passport 2013 without difficulty passport issued hebei police department applicant clarified difficulty exiting entering china overseas travel applicant stated government fear fear mr operates outside law tribunal put applicant difficult accept mr men would followed 2012 2014 given undertook research 2010 2011 difficult accept people would able find identify city 1 city heavily populated place applicant stated belief always following able locate place stated belief know name know face tribunal put applicant difficult accept constantly following reasonable assume would noticed three occasion claim seen following also difficult accept would follow three four year given stopped compiling research mr 2011 tribunal put applicant 2016 five year compiled information mr evidence mr henchman know applicant name destroyed information compiled mr applicant name never linked published information mr corrupt activity reason difficult accept applicant face real chance serious harm real risk significant harm china arising claim applicant responded spotted henchman came australia april 2014 fear show china mr henchman harass harm beginning hearing tribunal asked applicant arrival australia transit visa applicant stated knew visa allowed australia three day stayed longer three day travel agent messed onward ticket country 2 ticket paper able take flight tribunal asked applicant remained australia one half year applying protection tribunal put applicant delay could indication genuine fear harm china applicant responded intention always go country 2 live live peacefully never intention live australia clarified homeless australia stated went immigration department sometime 2015 asked people immigration send country finding cold australia told could identification took fingerprint let go detained month later early september 2015 told could go back china advised applying protection visa finding reasonsthe applicant claim protection consistent throughout processing application tribunal found applicant credible witness applicant genuinely belief claim consistent giving evidence tribunal find applicant subjective fear harmed china however following reason tribunal satisfied applicant face real chance serious harm real risk significant harm china tribunal accepts applicant made video criticised mao zedong resulted applicant parent interrogated humiliated police city 1 tribunal also accepts applicant evidence associated video way video published tribunal note applicant longer fear harmed result making video tribunal find applicant subjective fear harm arising claim follows well founded fear persecution arising claim tribunal accepts applicant angered action mr child mr accumulation wealth property tribunal note independent source information confirm applicant claim regarding mr position senior officer city 1 public security bureau child involvement accident child conviction sentencing 2011 government attempt control medium coverage 1 tribunal accepts applicant compiled information mr wife accumulated wealth property published article line forum tribunal also accepts applicant careful ensure could identified way article subsequently deleted destroyed information compiled mr wife tribunal note since publishing line article applicant issued passport name relevant authority hebei exited entered china number time without difficulty tribunal satisfied applicant perceived anti chinese government political opinion tribunal satisfied applicant face real chance serious harm china result publication article line put applicant hearing tribunal difficulty accepting assaulted followed mr henchman claimed tribunal accepts applicant hold genuine fear regard however tribunal accept plausible credible mr men would follow applicant 2011 2012 2014 assault applicant tribunal base finding fact information mr compiled applicant researched end 2010 beginning 2011 information published line applicant clear name could associated line article applicant definite careful prevent name associated article applicant state base fear fact security camera unit block questioned people occupant owner unit asked mr wife belief people following also camera tribunal view implausible applicant would identified image appearance heavily populated area city claim saw people following tribunal put applicant hearing response spotted shopping centre regularly attended may known regularly went shopping centre also stated men must following continuously spotted three different city three four year research departed china also stated men assaulted 2014 abusive told challenge mr tribunal accept credible men assaulted would say city 2 2014 based possibility face caught security camera asking question mr wife property end 2010 early 2011 three year earlier city 1 150 kilometre city 2 tribunal accept plausible applicant claim men must following continually spotted three different city period three four year tribunal find applicant claim regard credible tribunal also accept credible applicant claim spotted mr men came australia april 2014 tribunal view reasonable assume applicant action undertaking research heartfelt criticism mr corruption caused fear reprisal mr given five year passed since applicant compiled information mr applicant longer information would discredit mr nothing adverse happened mr result applicant research applicant evidence think mr know applicant name tribunal find applicant face real chance serious harm mr men acting behalf reasonably foreseeable future china assessing evidence considering applicant claim individually cumulatively tribunal satisfied applicant face real chance serious harm china political opinion research criticism senior officer mr follows fear persecution regard well founded reason given tribunal satisfied applicant person respect australia protection obligation 36 2 concluded applicant meet refugee criterion 36 2 tribunal considered alternative criterion 36 2 aa tribunal considered whether substantial ground believing necessary foreseeable consequence applicant removed australia china real risk suffer significant harm defined 36 2a 5 1 inmiac v szqrb full federal court held real risk test imposes standard real chance test applicable assessment well founded fear refugee convention definition 2 given tribunal finding applicant face real chance serious harm china tribunal satisfied applicant face real risk tribunal therefore satisfied applicant person respect australia protection obligation 36 2 aa suggestion applicant satisfies 36 2 basis member family unit person satisfies 36 2 aa hold protection visa accordingly applicant satisfy criterion 36 2 decisionthe tribunal affirms decision grant applicant protection visa lesley huntmemberattachment extract frommigration act 19585 1 interpretation cruel inhuman treatment punishmentmeans act omission severe pain suffering whether physical mental intentionally inflicted person b pain suffering whether physical mental intentionally inflicted person long circumstance act omission could reasonably regarded cruel inhuman nature include act omission c inconsistent article 7 covenant arising inherent incidental lawful sanction inconsistent article covenant degrading treatment punishmentmeans act omission cause intended cause extreme humiliation unreasonable include act omission inconsistent article 7 covenant b cause intended cause extreme humiliation arising inherent incidental lawful sanction inconsistent article covenant torturemeans act omission severe pain suffering whether physical mental intentionally inflicted person purpose obtaining person third person information confession b purpose punishing person act person third person committed suspected committed c purpose intimidating coercing person third person purpose related purpose mentioned paragraph b c e reason based discrimination inconsistent article covenant include act omission arising inherent incidental lawful sanction inconsistent article covenant receiving country relation non citizen mean country non citizen national determined solely reference law relevant country b non citizen country nationality country former habitual residence regardless whether would possible return non citizen country 5j meaning well founded fear persecution 1 purpose application act regulation particular person person well founded fear persecution person fear persecuted reason race religion nationality membership particular social group political opinion b real chance person returned receiving country person would persecuted one reason mentioned paragraph c real chance persecution relates area receiving country note membership particular social group see section 5k 5l 2 person well founded fear persecution effective protection measure available person receiving country note effective protection measure see section 5la 3 person well founded fear persecution person could take reasonable step modify behaviour avoid real chance persecution receiving country modification would conflict characteristic fundamental person identity conscience b conceal innate immutable characteristic person c without limiting paragraph b require person following alter religious belief including renouncing religious conversion conceal true religious belief cease involved practice faith ii conceal true race ethnicity nationality country origin iii alter political belief conceal true political belief iv conceal physical psychological intellectual disability v enter remain marriage person opposed accept forced marriage child vi alter sexual orientation gender identity conceal true sexual orientation gender identity intersex status 4 person fear persecution one reason mentioned paragraph 1 reason must essential significant reason reason must essential significant reason persecution b persecution must involve serious harm person c persecution must involve systematic discriminatory conduct 5 without limiting serious harm purpose paragraph 4 b following instance serious harm purpose paragraph threat person life liberty b significant physical harassment person c significant physical illtreatment person significant economic hardship threatens person capacity subsist e denial access basic service denial threatens person capacity subsist f denial capacity earn livelihood kind denial threatens person capacity subsist 6 determining whether person wellfounded fear persecution one reason mentioned paragraph 1 conduct engaged person australia disregarded unless person satisfies minister person engaged conduct otherwise purpose strengthening person claim refugee 5k membership particular social group consisting familyfor purpose application act regulation particular person first person determining whether first person wellfounded fear persecution reason membership particular social group consists first person family disregard fear persecution persecution member former member whether alive dead family ever experienced reason fear persecution reason mentioned paragraph 5j 1 b disregard fear persecution persecution first person ever experienced ii member former member whether alive dead family ever experienced reasonable conclude fear persecution would exist assumed fear persecution mentioned paragraph never existed note section 5gmay relevant determining family relationship purpose section 5l membership particular social group familyfor purpose application act regulation particular person person treated member particular social group person family characteristic shared member group b person share perceived sharing characteristic c following apply characteristic innate immutable characteristic ii characteristic fundamental member identity conscience member forced renounce iii characteristic distinguishes group society characteristic fear persecution 5la effective protection measure 1 purpose application act regulation particular person effective protection measure available person receiving country protection persecution could provided person relevant state ii party organisation including international organisation control relevant state substantial part territory relevant state b relevant state party organisation mentioned paragraph willing able offer protection 2 relevant state party organisation mentioned paragraph 1 taken able offer protection persecution person person access protection b protection durable c case protection provided relevant state protection consists appropriate criminal law reasonably effective police force impartial judicial system 36 protection visa criterion provided act 2a noncitizen suffersignificant harmif noncitizen arbitrarily deprived life b death penalty carried noncitizen c noncitizen subjected torture noncitizen subjected cruel inhuman treatment punishment e noncitizen subjected degrading treatment punishment 2b however taken real risk noncitizen suffer significant harm country minister satisfied would reasonable noncitizen relocate area country would real risk noncitizen suffer significant harm b noncitizen could obtain authority country protection would real risk noncitizen suffer significant harm c real risk one faced population country generally faced noncitizen personally 1 information deleted 2 miac v szqrb 2013 fcafc 33 2013 210 fcr 505per lander gordon jj 246 besanko jagot jj 297 flick j 342
BONES and RIDDLE [2021] FCWA 60 (16 April 2021).txt	bone riddle 2021 fcwa 60 16 april 2021 last updated 6 october 2021jurisdiction family court western australiaact family court act 1997location geraldtoncitation bone riddle 2021 fcwa 60coram tyson jheard 8 9 10 26 march 2021delivered 16 april 2021file ptw 5520 2017between m bonesapplicantandmr riddlerespondentfamily law child related proceeding one child aged 13 year child complex mental health issue child exposed family violence neglect abuse care mother department community territory family involved child risk remaining mother care best interest case turn factslegislation family court act 1997 wa 5 9a 66c 70a 89aa 5 category reportablerepresentation counsel applicant self represented litigantrespondent self represented litigantindependent child lawyer m dasssolicitors applicant self represented litigantrespondent self represented litigantindependent child lawyer klimek das family lawcase referred decision tyson j word square bracket replace word used original judgment party name identifying detail changedit noted publication judgment court pseudonymbones riddlehas approved family court western australia pursuant tos 243 8 g thefamily court act 1997 wa 1 proceeding concern child child 13 year age child mother m bone father mr riddle short relationship ended prior child birth 2 child vulnerable child experienced significant instability difficulty life diagnosed medical condition medical condition b medical condition c medical condition medical condition e question whether child may medical condition f whether exposed cannabis drug mother pregnancy yet assessed 3 child difficulty regulating behaviour poor emotional regulation rapidly escalates term aggressive violent behaviour time child behaviour unpredictable volatile impulsive threatened carried self harm including holding scissors knife neck banging head wall desk guarded slow trust struggle many aspect life 4 child initially lived mother geraldton following repeated concern child well intervention department community 2017 child moved live father geraldton subsequently relocated state 5 late 2019 state became involved family due incident child half sister child b march 2020 parent agreed child return mother care geraldton condition mother ensured child continued take medication prescribed receive ongoing counselling educational support common ground mother complied condition 6 mother seek child continue live father independent child lawyer icl seek child return live father must make parenting order consider best interest child deciding child best interest circumstance case two key issue require determination child risk harm either parent care capacity parent provide child complex need agreed 7 commencement trial party agreed number order proposed icl contained minute filed 25 february 2021 agreed various order including exchange information child attend mental health professional take medication prescribed access funding child educational need access service meet child health educational requirement party agreed various injunction 1 share cost associated child travelling geraldton state satisfied consent order best interest child supported available evidence set full conclusion reason 8 26 march 2021 party agreed interim order child travel state 10 30 april 2021 spend time father proposal party 9 icl father seek child live father sole parental responsibility propose child spend time mother 10 day school holiday 10 mother seek child live spend time father 10 day term one three three week summer school holiday seek father supervise child time sibling father home evidence relied upon 11 father relied affidavit filed 18 february 2021 affidavit partner m z filed 18 february 2021 mother relied affidavit filed 24 february 2021 icl relied affidavit dr x filed 3 march 2021 icl helpfully prepared circulated tender bundle prior trial became exhibit 1 supplementary tender bundle prepared icl first day trial became exhibit 2 number document tendered evidence dr x required cross examination accept unchallenged evidence conduct trial12 parent self represented litigant father attended trial way video link state mother attended trial person first day trial large number subpoenaed document produced party icl given time inspect material mother icl inspected document court arrangement made father inspect document registry federal circuit court australia state wish extend gratitude staff court assisting process 13 explained trial procedure parent provided self represented litigant booklet aware guideline regarding manner judicial officer deal unrepresented litigant 2 applied guideline course proceeding satisfied trial fair parent able fully participate assessment party witness 14 mother attempted give evidence honest manner albeit consider gave truth saw mother made number concession self interest admitted continuing use methamphetamine cannabis acknowledged complied order undergo hair strand analysis conceded complied order administer child medication access mental health counselling educational assistance child 15 mother reliable historian struggled recall date event time visibly defensive combative gave evidence view outcome sought mother evidence highlighted lack insight need child return later reason example mother said harm child suffered care intentional normal 16 father man word gave evidence honest direct manner offer explanation expand answer unless pressed consider gave evidence truthful manner struggled time recall date detail clear relies depends m z frank explaining difficulty m z experienced agreed child returning mother 17 found m z open balanced honest witness criticize mother despite multiple opportunity accurate reliable historian m z gave evidence careful considered manner readily able identify challenge father would face child return care hearing m z evidence evident significantly involved child care presented practical warm child focused parent acutely aware child plethora need work required meet m z impressive witness hesitation accepting evidence 18 family consultant attended trial cross examined icl mother gave evidence professional helpful manner seriously challenged cross examination background fact 19 father born 1976 45 year age employed painter father life rental accommodation state home five bedroom two bathroom father relationship m z since 2015 20 father previously married m father m three child child c born 2003 currently 17 year age child born 2009 currently 12 year age child b born 2011 currently nine year age 21 child c life geraldton child b child live father m z son child e born 2008 currently 12 year age child e appropriate grade age special need attends school 22 child medical condition g mild intellectual disability medical condition c child attends school provides special support care psychiatrist counsellor child carer take outing fortnight regularly attends speech therapist occupational therapist receipt national disability insurance scheme ndis funding 23 child b medical condition medical condition b medical condition h child b currently assessed medical condition g year 4 attending counselling support service sexual assault support service 24 although entirely clear evidence appears child b child time child c came father full time care stage august 2017 march 2019 coinciding m charged possession illicit drug 3 prior father shared care child m 4 25 m z father adult daughter independent 26 mother born 1976 mother life partner mr v farm regional town outside geraldton child life mother catch bus school mother recently commenced work casual basis otherwise receipt government benefit child support father 27 mother previously relationship mr w two child child f born 2004 currently 16 year age child g born 2002 currently 18 year age since 2013 child g child f lived father 28 mother father brief relationship 2007 separated mother around six month pregnant following child birth 2007 lived mother limited contact father working fly fly basis child approximately three month old father relocated state 29 april 2009 father returned geraldton july 2009 resumed spending time child including overnight basis 30 since 2010 department extensive involvement family multiple concern raised mother care child including child presenting unexplained poorly explained injury family violence neglect 5 child subject four child safety investigation 31 2010 child day care reported department three separate occasion child two year age injury including multiple bruise bite mark suspected deliberately inflicted 6 32 2011 department investigated allegation neglect due mother excessive use alcohol child exposure family violence 7 alleged mother prioritising finance purchase alcohol home unhygienic contained significant rubbish mother denied allegation refused engage service offered department substantiated child harmed result neglect intensive family support provided 33 2012 maternal grandmother died tragic circumstance mother case struggled grief anxiety following traumatic circumstance mother died commenced using illicit substance alcohol excess 34 second half 2012 concern raised department mother exposed child sibling family violence neglect context mother continuing abuse alcohol illicit drug additionally department concerned mother taking child g medical condition medication together sedative get high cross examination mother admitted taking child g medication 8 visit caseworker department raise concern child presented clean tidy 9 2013 child began spending increased time father 35 february 2013 notification made department asserting mother using drug neglecting child may 2013 safety meeting recorded following concern among others child using sexualised language mother exposing child family violence context drug use child rarely attending school child getting enough food child head louse 10 36 15 may 2013 child interviewed made disclosure nevertheless department put place safety plan including communicating parent child left unsupervised around child department recorded despite mother agreement undertake drug testing chosen want written record drug use 11 37 june 2013 department investigated concern child sibling subject sexual emotional abuse 12 concern raised state mother home drug use mother verbally chastising child child displaying sexualised behaviour mother pregnant concern raised unborn child 13 mother confirmed continuing use cannabis methamphetamine told department three child problem suggesting mother used previous pregnancy department advised father seek family court order relation child 38 department investigation recorded mother displayed limited insight around impact behaviour child well reluctance allow child live father department found acting protectively 14 department substantiated child harmed mother result emotional abuse neglect intensive family support provided father recommended pursue child live 39 2013 child f child g moved live father mr w 40 june 2014 child went care father department raised concern welfare december 2014 father agreed return child live mother satisfied mother stopped using drug mother relocated child regional town b later regional town c without notice father father limited contact child say mother facilitate child attending school regular basis 41 april 2015 child returned geraldton time lived mr w child g child f father october 2015 child spending extended period time father father involved meeting school relation concern child falling behind truanting behavioural difficulty reported mother frequently failed collect child school provide food 42 2017 child year four school b began see school psychologist m u school reported child regularly expressing fear sadness isolation anger rapidly escalating aggressive behaviour including throwing chair desk bin leaving classroom refusing participate various activity difficulty trusting new teacher staff blaming frequently running away 15 child placed individual behaviour management plan 43 child referred support service b saw dr visiting child psychiatrist m senior mental health professional 44 2017 department commenced investigation relation child suffering emotional abuse exposure family domestic violence mother care 16 child reported living abandoned home mother continuing use drug seen mother physically abused partner including hit smacked yelled mother reportedly went missing six day school holiday struggling find accommodation school recorded child displaying frequent dangerous impulsive behaviour aspect schooling 17 child trashed classroom abusive staff student run away school suspended 10 day 45 mother reported difficult abusive school questioned whether child may undiagnosed medical condition father obtained referral support service b school confirmed father m z providing child food bought new glass 46 may 2017 school psychologist reported child appeared experienced significant trauma relating neglect abandonment witnessed repeated act domestic violence mother child described withdrawn reserved evidence dissociative symptom child expressed thought self harm feeling lonely mother care fearful afraid psychologist considered child anxiety depression together social thought problem 18 47 20 june 2017 father commenced proceeding seeking recovery order father deposed mother homeless violent relationship mr v child witnessed family violence drug use mother partner 27 june 2017 order made mother deliver child father care 48 june 2017 dr confirmed child likely met criterion diagnosis medical condition comorbid depressive symptom including low mood suicidal ideation 19 child continued attend school b engaged support service b educational assistant regularly attended school psychologist 49 12 february 2018 order made requiring mother file responding document undergo supervised broad screen drug urine analysis test 50 3 april 2018 consequence mother failure file responding document pursuant order made preceding date final order made father sole parental responsibility child live father spend time mother agreed sexualised behaviours51 historical report child displaying sexualised behaviour number year 52 2013 child six year old using sexualised word like dicking suck doodle department notified child inappropriately touched three year old boy child h son mother friend m r child h disclosed grandmother child allegedly pulled pant sucked doodle 20 53 department interviewed child considered language possibly picked older sibling school department discussed parent establishing safety plan including use protective behaviour language ensuring child left unsupervised around child extending child support network ensuring child slept room bathed alone child undertake protective behaviour program receive counselling despite department recommendation 54 mother suggested time incident child father care reject evidence instead prefer evidence father adamant child care time case even child father physical care time incident establish child sexualised behaviour father fault mother appeared contend 55 mother friend spoke child advised parent happened department queried whether child exposed pornography sexual behaviour mother care drug affected mother told department child behaviour normal 21 mother asked cross examination obtain counselling child explained think much probably slipped mind 56 2013 reported child inappropriately touched cousin unclear occurred advised action taken time 57 2017 mother say child caught playing adult game niece say sister spoke child end matter detail provided mother occurred action taken 58 appear reported incident december 2019 refer detail shortly arrangement child care father59 father moved state child attended school c placed individual education plan school obtained funding allowed child attend enrichment hub 60 child continued display challenging behaviour school including meltdown throwing item hitting head desk wall child behaviour described explosive one occasion child held sharp object throat child wait list counselling support service child gp referred support service c assessment possible therapy school obtained full time educational assistant child school counsellor saw child referred another service considered child need complex manage 61 2 april 2019 child attended dr x paediatrician confirmed diagnosis medical condition b medical condition medical condition identified child experienced disrupted attachment questioned whether child exposed alcohol cannabis use mother pregnancy 22 62 dr x noted child displaying aggressive threatening behaviour towards student teacher threatened self harm targeted student including pretending point gun head run finger across throat knife described child struggling read social cue sensitive perceived criticism guarded child year six significantly behind peer term reading writing math self conscious 63 dr x considered previous 18 month child safe stable loving home environment father stepmother predicted child recovery long standing trauma would difficult take time commenced child number medication medical condition recommended child obtain mental health care plan access psychological support continue engage individual education plan attend paediatric assessment monitor progress recommended child avoid highly processed food soft drink confectionery screen time limited 64 april 2019 dr x reviewed child reported experiencing better concentration le disrupted sleep le aggression home school complained dizziness dr x modified child medication suggested review took place september 2019 child reported increased difficulty anxiety aggression self harming banging head frustration hurting child question whether child disappointment mother cancelling proposed visit exacerbated child feeling worthlessness two child prescription ceased replaced two new medication medical condition dr x maintained recommendation ongoing medication intensive psychological therapy 65 m z gave evidence dr x subsequently changed child medication long acting medication m z father gave evidence child taking medication better able regulate emotion le prone outburst child reported better able concentrate medicated 23 66 parent agreed child spending time mother state supervision service subject mother providing clear urine analysis sample arrangement made visit occur proceed mother say car broke 67 father suspended child telephone call mother became distressing child mother frequently upset cry shouting yelling discussing proceeding child case assessment conference68 20 february 2019 party attended case assessment conference family consultant 69 mother mr v facing criminal charge consultant recorded mr v held extensive criminal history including 30 drug related charge relating driving prescribed illicit substance possession multiple illicit substance addition armed robbery charge 2001 mother number historical driving offence including several charge driving without authority 2018 driving prescribed illicit substance father historical drink driving offence last dated 2005 70 mother confirmed opposed child living father advised mr v planning relocate state b 71 father reported agreeable child spending time mother provided clean hair follicle test 72 father detailed step taken assist child mother considered child behaviour caused child away proper accommodation mother acknowledged unresolved issue relating mental health following death mother prescribed antidepressant attending drug counselling hospital admitted using cannabis regular basis history intravenous methamphetamine use mother confirmed mr v also used methamphetamine intravenously reported stopped using drug week ago 73 police information identified numerous incident family violence mother mr v mother asserted never fear life mr v mr v never intentionally hurt fault mr v argued 74 consultant support change child arrangement wrote mother extensive history drug use prolonged history department community involvement since 2010 mother would like court believe difficulty life manifested due death mother 2012 although significant traumatic event mother life evident department involvement two year prior concerning risk parenting child resulting neglect substantiated 2011 department conducted 10 safety well assessment since 2010 mother two teenage boy live father mr w mother ongoing relationship child child f child g mother drug use significant concern convinced caused finality methamphetamine use highly inconceivable mental determination immediately cease methamphetamine use january 2019 never use dynamic life destined result spiral drug use chaotic dysfunctional violent relationship projection traumatic event life inclusion young traumatised child life juncture would unsafe fro sic child mother minimized violence relationship mr v blamed violence mother may limited insight toxicity relationship lifestyle risk pose posed young vulnerable child would appear child immensely challenging childhood led diagnosis medical condition associated externalised internalised behaviour associated experiencing trauma child experienced significant traumatic event life concern documented school b demonstrate child expressing symptom adversity trauma mother care requires significant period stability structure nurturing therapy ensure begin process healing adverse experience allow begin reach educational goal achieve childhood developmental milestone exposure parent continually using drug relationship allegedly caused trauma child would appropriate would responsibility mother demonstrate court measurable action goal said begin show lifestyle longer risk child december 201975 late december 2019 child child b home m z child b told m z child penetrated vagina bottom finger playing swimming pool child b eight year old child 12 year old child b upset cry child b reported thing happened around month prior afraid say anything child told bad person m z see incident 24 76 m z asked child happened child became upset grabbed sharp object held throat said know alive know alive everybody hate 25 m z told child would call police drop object started cry lay floor child said knew done bad thing know done 77 m z rang father whose employer arranged return state following day m z rang state department reported happened child sent aunt home night 78 child told father one mother boyfriend done done child b later retracted child made similar statement m z 26 m z considers child likely withdrew remark want get mother trouble m z rang mother late december 2020 reported happened child child b 79 father returned state commenced stress leave employer arranged father child child b attend counselling mr q private psychologist father attended gp psychiatrist m z also accessed counselling 80 family met case worker state department arranged child complete protective behaviour course safety plan established required child supervised 24 hour day child sleep downstairs child b sleep upstairs child b referred sexual assault support service counselling enquiry made counselling child child phone removed prevent accessing pornography sharp object removed father home prevent risk child self harming 27 81 child b attended doctor raised concern child b considered family acting protectively doctor recorded child remorseful action considered would require support 82 january 2020 mother filed application seeking child live geraldton also filed notice risk deposed child sexually interfered child b child previously caught playing adult game mother niece 2017 found child sexually experimenting friend son 83 january 2020 m z asked child help clean toilet accident child became angry dysregulated upset threw bottle disinfectant smashed cut m z toe child started scream threatened run away m z grabbed child around waist arm effort stop hurting child continued scream struggle m z let child go ran away m z rang father 84 father m z went looking child called police advised taken child care pursuant relevant state act report made police spoke m z child following day well child child interviewed made disclosure presented withdrawn told police felt safe wanted return m z father care child asked anything police could help family asked could get dad job police described m z upset shocked suggestion hurt child m z explained child behaviour difficult manage struggling access support child 28 charge laid 85 time child young access service support service still waiting commence counselling support service b sexual assault support service prepared provide counselling child since assisting child b child labelled perpetrator sexual abuse state department referred family intensive youth support service 29 86 late january 2020 child attended police station refused go home angry could attend school m z attempted convince child return home father unable contacted 30 87 29 january 2020 multi agency meeting arranged formulate safety plan child attendance school due commenced high school present meeting m z mr p psychologist mr assistant principal inclusive education m n senior child protection practitioner state department teacher school c child previously attended together representative charity state department state school state police 31 88 charity agreed provide child individual support school two hour day 10 week assist family apply ndis funding support service agreed meet child begin risk assessment commence weekly counselling school planning case management meeting aimed ensure child safety safety student support service e providing counselling m z family 89 february 2020 m z found child masturbating family dog redirected child told father m z called child psychologist recommended child removed home risk child m z said frightened recommendation struggling supervise child 24 hour day managing complex need m z rang state department reported occurred described child behaviour unpredictable sought respite care child night told nothing available state department conducted safety assessment assessed child behaviour red zone 32 requiring immediate protection support 33 90 child commenced attending half day school supervised worker charity school assessing could increase child school attendance manner ensured safety peer 91 february 2020 meeting held state department police sexual assault support service 92 next day m z told state department child broken upstairs overnight stolen food m z advised father spoken child maternal grandfather lived regional town c agreed care child give individual attention required case worker raised concern lack mental health service available regional town c 34 93 mr p support service seeing child recommended child referred psychiatrist cognitive testing medical condition f assessment also intended speak sexual assault support service supporting child considered child behaviour consistent trauma exposure pornography 35 mr q child private psychologist supported psychiatric referral specialised treatment 94 child interviewed case worker said wanted live grandfather would easier everyone would le stress family 36 said child confirmed felt safe father home 95 m z spoke dr x 17 february 2020 advised sending child away would worst outcome would another source rejection abandonment case worker echoed concern advised plan would need carefully considered 37 discussion whether current support available child could transferred western australia particularly child live regional location like geraldton 96 26 february 2020 m z spoke dr x confirmed child continue existing medication regime take lunch time tablet previously compulsory appointment child dr x scheduled march 2020 child continuing attend mr q weekly counselling addition support service 97 late february 2020 parent agreed child would return geraldton live mother 26 february 2020 m z advised state department decision 98 27 february 2020 mr p support service completed risk assessment pushing sexual assault support service assist basis child may also victim sexual abuse enquiry still foot find forensic psychiatrist 38 mr p reported state department child wanted mother would important parent carefully manage change care ensure child feel sense rejection 99 mid march 2020 multi agency meeting held attended m z representative school support service state department charity child continuing attend school 11 00 day could individually supervised school applied extreme behaviour funding child agreed child required forensic assessment school child attended would need complete risk assessment m z advised father could afford fight mother application child returned care continued concern mother circumstance confirmed mother would required complete drug testing would ongoing welfare check agreed child would practice remembering phone number needed contact anyone help mother care 39 100 paternal grandparent travelled state brought child geraldton late march 2020 mother care 101 state department closed file recording concern child return mother highly concerning child returning mother care given significant child protection history child subject whilst care previously child extremely vulnerable evidenced multiple diagnosis including medical condition medical condition b coupled complex behaviour state department concerned child return mother care without making necessary change keep child safe unable protect child neglect abuse might regress behaviour likelihood harm occuring child mother care made significant change regard long standing issue violence drug alcohol use homelessness time state department fully aware change mother made mother acknowledged still seeking accommodation denied state department currently using drug alcohol 40 102 state department completed interstate notification department community advising child returning mother care 103 father evidence time m z agreed child returning mother overwhelmed struggling cope father explained wanted give mother chance right thing child give chance mother believe father m z expected mother would continue engage child counselling support started adhere medication regime department response mother notice risk104 february 2020 department received mother notice however respond december 2020 due complexity staff rotation leaf department referred child diagnosis medical condition consequence exposure family violence mother relationship mr v concern mother using excessive discipline administering child medication personally using 105 department found limited credible evidence father contributed towards child sexualised behaviour department found specific credible evidence child risk harm due misuse alcohol father partner concluded child significant trauma throughout life including significant volatility year whilst primary carer mother information file suggests volatility continuing combination ongoing concern received department relation mother primary care child appear conducive ongoing development 41 arrangement child care mother106 mother spoke state department least two occasion child returned care mid march 2020 mother advised looking appropriate accommodation mr v living shed mr v mother home mother asked housing assistance denied case worker using drug alcohol 42 107 case worker informed mother child required forensic psycho social assessment seeking ndis funding ongoing access support service enable child continue counselling mother told would need liaise child proposed school completing risk assessment mother asked case worker send list service said never occurred state department provide record information department community 17 march 2020 mr p referred child support service b geraldton 43 108 consent order made 4 march 2020 parent equal shared parental responsible child child live mother spend time communicate father agreed order made mother comply request made icl undertake drug testing b ensure child took medication prescribed c enrol child necessary special education service geraldton consistent possible attending state ensure child attend mental health professional regularly manner consistent arrangement place state 109 child travelled state april 2021 school holiday telephone contact father m z living mother 110 mother adduced limited evidence arrangement child care initially appears child lived mother partner shed home mr v mother around september 2020 mother obtained current rental accommodation described big old farmhouse four bedroom two bathroom rural property regional town outside geraldton recently obtained internet access late 2020 111 mother enrolled child year seven school appears child commenced school mid may 2020 noting covid 19 restriction imposed march april 2020 apparent information mother provided school term risk assessment recommended child resumed school 112 child attended four appointment m support service b april june 2020 mother stopped session asserted child longer wanted attend mother considered child ready counselling maintained support service b consider child required counselling consider unlikely given information school supported correspondence support service b mother relied simply refers closed child file hoping child manages transition back school okay able secure accommodation child referred support service b needed 44 113 may 2020 child referred hospital paediatric appointment 45 mother say appointment scheduled may 2021 note complaint delay however mother conceded taken step appointment expedited view failure reflective mother lack insight child complex need importance seeking prompt treatment support 114 child prescribed 46 two medication medical condition daily basis mother stopped administering child medication around month half came care accept child medical condition consider requires medication questioned whether medication contributed sexualised disruptive behaviour admissible evidence support mother concern 115 mother admitted cross examination mr v taken child medication recreational pursuit time despite mother administering child medication asked dr x script august 2020 refused mother recommended contact local gp paediatrician child 47 mother say took child see gp dr around august 2020 corroborative evidence appointment 116 mother asserted child well school concern behaviour achievement consistent evidence school confirms child continued display challenging difficult behaviour 48 117 june 2020 school raised concern child behaviour included child pushing shoving classmate antagonising peer displaying little resilience capacity problem solve reported often retaliate speak loudly invade personal space 49 school noted child disruptive class physically aggressive towards staff student regularly walking classroom swearing yelling shouting refusing follow instruction amongst matter 118 child identified student educational risk attendance rate semester two 76 6 42 2 child school absence authorised 50 119 june 2020 school sought support student service manage child behaviour 51 meeting held mother school psychologist school mid june 2020 mother told school would stopping child medication would continuing attendance support service b would engaging child counselling school referred mother court order requiring child medicated attend counselling noted mum reported little concern around meeting condition place counselling medication child discussed expressed concern desire compliance 52 120 mother insists aware school unable access funding educational assistant child unless attending support service b child access additional educational support geraldton state 121 mother deposed child bullied school described child behaviour normal school kid stuff school record note child frequently aggressor reported incident 122 late 2020 child suspended school mother asked attend meeting child would permitted return school mother said could drive transport result meeting child return school delayed week half 123 child participated activity outside school since mother care child told father m z often left home alone extended period time frightened lonely reported access telephone internet mother care result father sent child mobile telephone mother asked mr w child g child f father care child night said needed travel perth mother collect child four day mother decision leave child mr w care sat uncomfortably evidence cross examination sits smoke bong day mother drug use drug tests124 mother extensive history using illicit substance admits ongoing drug use way example mother deposed using small amount cannabis meth november december 2019 53 b mother wrote father january 2020 said like need drug make dishonest unfit prioritielss sic heartless mother anything equipped skill knowledge insure three son make better choice life goal parent 54 c september 2020 mother told father recreational pastime cannabis warrant action sic dept 55 september 2020 mother solicitor disclosed mother used methamphetamine around 5 6 week prior stopped police anticipated losing licence 56 125 trial mother admitted recreational drug use deposed used methamphetamine intravenously every month smoked cannabis every couple day longer used heroin admitted drinking beer rum occasion mother insisted child care used illicit drug however unable specify child time one example asked mother child used methamphetamine new year eve 57 mother first response school pointed child could school school holiday period unable offer explanation 126 mother multiple conviction 58 driving prescribed illicit drug system including methamphetamine 59 offence committed july 2020 march 2019 january 2019 july 2018 127 march 2020 mother required comply request made icl undertake drug testing whether way urine hair mid june 2020 icl requested mother undertake hair follicle test three month period funded legal aid 60 september 2020 mother ordered undertake hair follicle test drug testing agency within 28 day 8 february 2021 mother ordered forthwith comply previous order hair strand testing provide test result prior trial commencing mother failed comply request 128 mother deposed unable travel perth undertake hair follicle testing accept explanation circumstance mother conceded cross examination travelled perth school holiday january 2021 visit friend 129 mother undertaken number urine analysis test date result set 12 february 2018 clean 61 b 8 october 2019 clean 62 c 19 september 2019 also clean 63 18 september 2020 result clean substance except cannabis required testing conducted 64 130 context mother admission ongoing drug use clean largely historical urine drug test produced mother irrelevant 131 text message 11 january 2021 65 28 january 2021 66 icl requested mother undertake drug urine analysis testing mother comply request law 132 determining parenting order made child best interest paramount consideration 67 court required make finding fact every factual dispute raised party 68 paramount issue court determine order best interest child circumstance case process court cannot diverted supposed need arrive definitive conclusion every factual dispute 69 133 making parenting order involves exercise judicial discretion assessment consideration set legislation reference circumstance case involves value judgment respect may room reasonable difference opinion overall assessment best interest child 70 134 parent married accordingly proceeding determined pursuant thefamily court act 1997 wa part 5sets object principle matter must considered determining parenting order proper court bound proposal party subject requirement procedural fairness party given notice possibility order made unless making order obviously open known material 71 135section 70aprovides presumption best interest child parent equal shared parental responsibility presumption apply reasonable ground believe parent relevant adult engaged abuse child family violence phrase reasonable ground believe important statutory presumption inapplicable necessary abuse family violence proven sufficient reasonable ground believe parent engaged behaviour nature 136 even statutory presumption applies may rebutted evidence satisfies court would best interest child parent equal shared parental responsibility 137 order equal shared parental responsibility made court required consider whether child spending equal time parent best interest whether arrangement would reasonably practicable court required consider making order 138 background order equal shared parental responsibility made court make order child spend equal time parent court required consider whether spending substantial significant time term defined act parent would best interest reasonably practicable court required consider making order 139 determining whether reasonably practicable child spend equal time substantial significant time parent 89aa 5 act requires court regard far apart parent live b parent current future capacity implement arrangement child spending equal time substantial significant time parent c parent current future capacity communicate resolve difficulty might arise implementing arrangement kind impact arrangement kind would child e matter court considers relevant 140 determining parenting order best interest child court required consider matter set in 66cof act although may specifically discus reason subparagraph relevant section considered section required making determination 72 141 object principle act make clear court concerned amongst thing child right cared parent safe occur court must give greater weight need protect child harm subjected exposed abuse neglect family violence 142 abuse defined in 5of act includes assault causing child suffer serious psychological harm including harm caused child subjected exposed family violence serious neglect 143 family violence defined in 9aof act mean violent threatening behaviour person coerces control member person family cause family fearful includes assault intentional damage destruction property amongst matter 144 case involving allegation abuse family violence positive finding abuse made unless court satisfied balance probability regard inherent unlikelihood occurrence given description gravity consequence flowing particular finding proof reasonable satisfaction court produced inexact proof indefinite testimony indirect inference 73 145 full court family court inbant clayton 2019 famcafc 198 2019 flc 93 924 reviewed role court assessing risk confirmed 40 process risk identified magnitude measured cannot parenting case subject rigid mathematical empirical assessment court stressed importance analysing whole evidence stating 51 conclusion existence magnitude risk based fact circumstance honour referred would proper approach task analysing fact circumstance see whether particular fact would support conclusion honour came word counsel father atomise evidence rather conclusion formed consideration aspect taking account necessary element prediction assumption future court spoke incdj v vaj citation omitted primary considerations146 child best interest maintain meaningful relationship parent provided safe harm 147 readily satisfied child unacceptable risk harm mother care family violence serious neglect reached conclusion following reason mother longstanding difficulty illicit drug use case continues use methamphetamine cannabis extent mother drug use known consequence failure comply order undertake testing mother insisted used drug child care accept evidence consider likely child exposed mother use illicit substance given totality evidence confidence mother self reporting drug use event mother evidence child care following use illicit substance exposed coming using methamphetamine b satisfied mother relationship partner mr v violent following reason information police confirmed mother assaulted mr v example april 2020 member public rang police describing violent assault mr v punched head butted mother mr v admitted police mother argued denied physical assault mother refused provide statement police 74 january 2020 mother mr v reported heated argument course mother punched fence 75 child disclosure assessment department confirm child exposed family violence mr v mother mother case mr v continue use illicit substance including intravenous methamphetamine cannabis mr v also taken child prescription medication neither mother mr v seemingly attended counselling course respect family violence behaviour change mother evidence demonstrated insight dysfunction relationship conceded included argument pushing shoving child exposed mother acknowledged exposed family violence child described normal part life acknowledgement mother need address matter escalates risk child exposed ongoing violence c child risk serious neglect mother care failed attend need including failure ensure child ongoing attendance counselling support service b despite court order school advice refusal administer child prescribed medication unilateral decision stop medication without medical advice failure proactively engage child education take step recommended school obtain funding assist child mother failure ensure child attended school regular basis child seemingly left alone unsupervised extended period time made feel unsafe despite mother expressed concern child sexualised behaviour towards child b mother taken step obtain professional assistance child risk child exacerbated mother lack insight inability prioritise child need failure comply court order designed protect support child mother say comply order previous conduct evidence give confidence given failure date scrutiny court e mother evidence consistently denied minimised justified deflected sought attribute blame father others difficulty child experienced mother focused various diagnosis service father obtained child suggested reflective issue occurred home reject evidence totality evidence support finding child suffered significant abuse neglect mother care led intervention department child father care step taken identify address need 148 satisfied child risk harm care father mother alleged father drank excess independent evidence support concern current driver licence required undergo regular testing drug alcohol part employment father denied used alcohol excess accept evidence 149 consider child safe care father m z department community satisfied child well cared state department consider evidence child suffered abuse father care 76 150 incident child child b clearly concerning inappropriate child hurt child b step taken father m z appropriate protective actively sought professional assistance entire family reported incident state department openly engaged case worker followed advice obtain therapeutic assistance child child b child home obtained private counselling father employer facilitated child participating protective behaviour course additional considerations151 address additional consideration insofar relevant 152 child 13 year age already referred diagnosis medical condition medical condition b medical condition disorganised attachment suspected antenatal exposure alcohol yet assessed medical condition f 153 child met family consultant october 2020 described child cautious visible rapidly changing mood swing throughout interview child restless time avoided answering question child told consultant preferred live mother however unwilling provide reason preference consultant noted child articulated reason preferable live mother including dislike mother partner mother frequently cry screaming mother partner arguing yelling one another mother limited access fund mum need smoke le money resulting able participate activity care lack internet mother home nothing lack help receiving school 154 contrast child described positive term living father m z activity enjoyed positive relationship m z child child b child expressed able enjoy activity living father extra assistance received school medication took helped child said longer took medication mother consider needed 155 child explained lived father encouraged speak mother mother would go dad child reported reluctant speak father mother care explaining mother yell describing angry took away consultant confirmed child identified mother person trigger conflict 156 consultant concluded child presented upbeat positive speaking father family living state felt secure enjoyed stable predictable routine sibling play enriched environment plenty child described feeling bored stimulated unfulfilled mother care child described good relationship mother disliked partner unwilling speak reason consultant concluded child description mother presentation conflict mother partner indicated child developmental need met would preferable child return father care 157 given child awareness parent competing proposal desire avoid conflict parent consider highly likely child expressed view influenced matter 158 child able develop warm loving relationship m z actively involved care child enjoys good relationship child telling consultant got along shared similar interest child reported good relationship child b described difficult relationship child e complaining scratched pulled hair appears normal sibling rivalry tension child child e unsurprising given age 159 child relationship mr v le clear child comment consultant suggest enjoy good relationship mother conceded child relationship mr v difficult claimed improved recent time mr v presented witness therefore unable clarify matter 160 father demonstrated commitment ensuring child various need met would appear department community father slow take step child care despite clear recommendation father credit 2017 march 2020 actively attended child physical intellectual emotional need father demonstrated commitment care child proactively seek professional assistance supported m z 161 father m z determined child would better living mother march 2020 hoped would continue engage child professional service place state hope misplaced mother clearly love child able adequately attend medical emotional intellectual physical need 162 parent taken opportunity participate making decision major long term issue concerning child respective care party poor relationship limited capacity communicate hindered exchange information 163 mother poor opinion attitude towards father impacted child ability maintain relationship father mother care father supported child relationship mother reflected child comment consultant 164 party involved litigation extended period time 165 question likely effect change child circumstance important consideration child remains mother care satisfied attend child need given conduct heard evidence mother dismissive child medical diagnosis unilaterally ceased medication failed ensure child continue counselling obtain assistance mental health mother enabled school access funding service child 166 child life father child return state part father home m z child b child child e satisfied father attend child need given previous conduct light evidence m z m z father accept child diagnosis support child returning care dr x comply recommendation including medication intend engage child support service take step see child referred psychiatrist testing approach school required enrol child intend seek funding ndis child deposed would contact state department seek ongoing support assistance child 167 father state intends remain mother geraldton intends remain practical difficulty expense term child spending time parent term distance well cost time travel state geraldton one way flight perth state cost around 350 child would also required travel geraldton perth take around hour plane four hour car longer bus mother current driver licence reliable motor vehicle mother expects licence reinstated october 2021 168 parent limited financial mean father work full time basis support family including m z child child b child e m z receipt government benefit mother working casual basis otherwise receipt government benefit partner also employed 169 child requires professional assistance intervention including paediatric psychological educational support father intends engage service apart child attending four session support service b mother making appointment child see paediatrician yet take place mother taken step seek service child requires heard evidence convinced mother belief service required benefit child 170 father pay child support assessed mother currently meet cost associated child care child lived father met cost 171 satisfied given evidence father capacity meet child need significant concern mother capacity meet child need reason already identified 172 already referred child age maturity child child experienced significant trauma instability disruption short life unfortunately child received ongoing medical psychological assistance mother care despite order court 173 parent love child accept parent want best child mother capacity meet child need impaired 174 parent poor relationship mother present high degree animosity anger towards father parent limited capacity communicate child 175 preferable make order least likely lead institution proceeding party urged court make final order benefit reflecting evidence concluded child best interest make final order important end uncertainty child living arrangement satisfied bringing litigation end making final order child best interest conclusions176 reasonable ground believe family violence presumption equal shared parental responsibility apply given history matter relationship mother father child best interest make order parent equal shared parental responsibility satisfied child best interest father sole parental responsibility father trusted make child focused major long term decision child 177 reflected evidence taking consideration primary additional consideration concluded child best interest live father recommended family consultant icl satisfied father m z support best placed cater child need child risk harm father home father member father household accept child complex need may give rise child engaging difficult challenging behaviour however also satisfied risk difficult behaviour prejudicing child placement father home mitigated 1 counselling support father m z ready put place child upon return state 2 father working locally state 3 m z assuming full time caring role home 4 father m z acutely aware challenge face child live 178 father m z supportive stable relationship managed combine caring need four child complex demanding need responded promptly protectively appropriately following incident child child b continued engage child b support service ensure safety 179 satisfied father m z provide child safe home environment ensuring safety child care given strategy service intend engage 180 child best interest put place arrangement provide certainty security future change child living arrangement risk causing child distress anxiety compounding trauma already experienced child benefit stability living father 181 father m z agreed child returning mother care accept evidence time significant pressure felt overwhelmed pressure included father loss employment attending financial difficulty overwhelming demand four child care requirement engage multiple service agency family meeting safety planning requirement supervision child 24 hour day time m z working part time basis child attending limited period day pending provision additional service assessment enable resume attending school full time basis accept mother filed application seeking child return agreed engage service support child father considered arrangement may best child time 182 despite mother consent continue access professional medical psychological educational service child failed 183 satisfied heard evidence father m z confident care child m z detailed length strategy father employ manage safety child care ensure child resume counselling support service arrange attend dr x previous paediatrician comply recommendation make child treatment including medication liaising state department required engaging school access funding support service assist child return school including assessment forensic psychiatrist m z made enquiry child obtain counselling assist addressing sexualised behaviour 184 m z relayed discussion child b counsellor prospect child returning home yet discussed child pending determination proceeding accept m z father benefit professional assistance inform explain child b child child e prior child returning home arrangement ensure everyone safety 185 short satisfied child best interest live father child family face ongoing challenge address plethora need confident father support m z best placed 186 turning question child contact mother icl father proposed child spend 10 day school holiday mother extensive telephone electronic contact child reflected evidence satisfied order child best interest time accept child love mother doubt miss concern transition child return live father managed 187 expect mother bitterly disappointed decision confident mother able regulate emotion reaction speaking child contact child remains risk spending time mother continues use illicit substance fails take step address long standing concern family violence relationship health continues display little insight child need impact choice 188 child require time significant professional intervention support living father manage health address behavioural emotional difficulty impossible predict long may take work required circumstance none previous intervention put place child continued year child mother care anticipate transition child father household challenging child requires benefit stability certainty supported father m z professional intend engage concerned contact child mother time risk destabilising child care undermining arrangement cannot best interest 189subject hearing party propose make order child spend time communicate mother term decided father father trusted make appropriate child focused decision benefit input child treating health practitioner father able provide reason 190 father considers child best interest supported child treating health practitioner telephone facetime electronic contact mother contact need supervised father m z terminate call mother raise inappropriate topic cause child become distressed 191 family consultant considered child would benefit knowing would spend time mother benefit child need balanced need protect harm consultant advantage hearing evidence emerged trial establishes child remains risk care mother suggested given child age able protect satisfied child put position unacceptable risk exposed harm vulnerable young boy sadly experienced significant trauma neglect abuse short life incumbent child protect obligation mother demonstrate parent child need safety wellbeing assured would child best interest maintain relationship mother provided safe 192 satisfied child best interest spend unsupervised time mother able demonstrate significant change circumstance including able refrain using illicit substance extended period time evidenced clean hair strand test le six month evidence actively engaged drug rehabilitation service b undertaken intensive consistent therapy skilled psychologist counsellor experienced domestic violence impact violence child c evidence proactively managed mental health including attendance upon doctor psychologist follow recommendation made manage health acknowledgement problematic behaviour impact child 193 position agitated party trial result propose tohear partiesabout order propose 194 grant injunction sought father icl restrain party discussing proceeding child given evidence readily satisfied order required best interest 195 make order facilitate child travelling father given intend order father sole parental responsibility intend adopt icl proposal mother required consent child travel arrangement require father inform mother arrangement 196 propose foreshadowed trial absence objection provide reason order department community state department given involvement family proposed orders1 previous parenting order discharged 2 father sole parental responsibility child child born 2007 child 3 child live father 4 subject hearing party child spend time communicate mother term condition determined father benefit input child treating health practitioner 5 subject hearing party event father agrees child communicating mother contact speakerphone supervised father partner liberty terminate call event mother speaks inappropriate manner child child becomes distressed 6 consent father ensure child attends upon mental health professional psychological counselling support b child attends upon medical professional regular basis c child take medication prescribed access funding child educational need e access service child health education required 7 consent party liberty attend schooling event extracurricular activity attended child 8 consent party ensure keep notified time current land line mobile telephone number b mobile telephone battery charged handset available use 9 consent party communicate email text message regarding issue pertaining child 10 father notify mother immediately event child hospitalised suffers serious health problem whilst care b provide mother current residential address email address mobile telephone number keep mother informed change address mobile telephone number 11 consent father provide mother copy child school report sporting merit certificate relevant information 12 consent father authorise keep authorised educational medical establishment child regularly engaged provide mother duplicate copy document report regularly supplied parent 13 consent father ensure educational medical establishment child regularly engaged provided contact information mother 14 father liberty travel child 15 mother restrained removing child father care school activity save except spend time child pursuant order 16 consent sub paragraph inclusive consent sub paragraph e party restrained injunction injunction granted restraining consuming excessive alcohol using illicit drug whilst child care permitting allowing person b consuming excessive alcohol using illicit drug 12 hour prior spending time child c denigrating permitting person denigrate party either presence child denigrating permitting person denigrate party family partner either presence child social medium e discussing court proceeding child social medium 17 copy order reason distributed department community state department 18 subject hearing party father leave provide reason order child treating health practitioner including limited paediatrician psychologist psychiatrist 19 subject institution appeal party independent child lawyer independent child lawyer discharged 20 document produced named person pursuant subpoena returned destroyed accordance request named person expiration 42 day date hereof 21 relation material tendered exhibit evidence proceeding expiration 42 day date hereof material tendered exhibit evidence save except material produced pursuant subpoena destroyed court without notice party 22 event appeal lodged prior expiration period 42 day paragraph 20 21 apply 23 application response dismissed certify preceding paragraph comprise reason decision family court western australia cdassociate17 april 2021 1 parent agreed order term paragraph 19 minute prepared icl mother raised concern paragraph 19 e injunction restraining parent discussing court proceeding child given age explained child aware attending court asked question 2 associated discussion contained inre f litigant person guideline 2001 famca 348 2001 flc 93 072 209 253 inclusive 3 seemingly worth 1 million since convicted 4 refer father case information affidavit filed 15 august 2017 item 10 11 father case information affidavit filed 19 march 2019 item 10 11 5 exhibit 2 supplementary tender bundle page 35 37 6 exhibit 5 page 2 case closure approved outcome report interaction dated 27 may 2010 7 exhibit 6 child centred family approved outcome report intake date 2011 8 exhibit 7 page 1 safety wellbeing assessment approved outcome report interaction date 31 july 2012 9 exhibit 7 page 3 4 safety wellbeing assessment approved outcome report 10 exhibit 8 safety meeting form 11 exhibit 8 case note dated 15 may 2013 12 exhibit 2 page 36 department community memorandum dated 15 december 2020 also exhibit 3 13 exhibit 2 page 36 department community memorandum dated 15 december 2020 14 exhibit 2 page 36 department community memorandum dated 15 december 2020 15 exhibit 1 page 45 note department education letter school b 16 exhibit 9 interaction report intake date 28 april 2017 17 exhibit 9 page 4 6 interaction report intake date 28 april 2017 18 exhibit 1 page 143 school psychologist report letter support service b school psychologist 19 exhibit 1 page 141 142 divider 5 letter support service b dated 27 june 2017 20 exhibit 3 safety wellbeing assessment approved outcome report intake date 3 may 2013 redacted version exhibit 8 initial inquiry approved outcome report intake date 11 march 2013 21 exhibit 16 page 9 546 extract state department file intake commencing 30 december 2019 page 4 12 inclusive 22 exhibit 2 page 6 supplementary tender bundle affidavit dr x filed 3 march 2021 23 exhibit 2 page 47 child inclusive conference memorandum dated 28 october 2020 24 exhibit 16 page 4 12 inclusive extract state department file intake commencing 30 december 2019 25 exhibit 19 page 310 546 extract state department file investigation safety assessment report 26 exhibit 18 page 99 546 extract state department file 27 exhibit 19 page 318 546 extract state department file investigation safety assessment report 28 exhibit 18 page 97 546 extract state department file 29 exhibit 19 page 305 308 546 extract state department file state department referral form intensive youth support service 30 exhibit 18 page 103 546 extract state department file 31 exhibit 18 page 105 546 extract state department file 32 traffic light system 33 exhibit 17 page 21 546 extract state department file intake commencing 15 february 2020 34 exhibit 4 page 125 546 progress note search result state department file 35 exhibit 4 page 125 546 progress note search result state department file 36 exhibit 4 page 124 546 progress note search result state department file 37 exhibit 4 page 124 546 progress note search result state department file 38 exhibit 4 page 129 546 progress note search result state department file 39 exhibit 4 page 132 133 546 progress note search result state department file 40 exhibit 19 page 323 546 extract state department form intensive youth referral form page 305 324 inclusive 41 exhibit 2 page 36 37 department community memorandum dated 15 december 2020 42 exhibit 4 page 134 546 progress note search result state department file 43 exhibit 4 page 135 546 progress note search result state department file 44 exhibit 1 page 139 letter health service dated 5 june 2020 45 exhibit 1 page 140 letter support service b dated 21 may 2020 46 exhibit 2 page 15 affidavit dr x filed 3 march 2021 47 exhibit 2 page 15 affidavit dr x filed 3 march 2021 48 example see exhibit 1 page 31 36 note department education example 49 exhibit 1 page 133 134 department education record 50 exhibit 1 page 8 note department education 51 exhibit 1 page 131 note department education 52 exhibit 1 page 131 135 note department education 53 mother affidavit filed 28 january 2020 29 54 exhibit 1 page 160 mother email father dated 2 january 2020 55 exhibit 1 page 171 mother email father dated 18 september 2020 56 transcript proceeding justice brien 21 september 2020 commencing 10 33am page 4 57 31 december 2020 58 exhibit 10 information produced wapol mother list charge history court report 59 exhibit 11 wapol statement material fact regarding incident 30 july 2020 relation applicant 60 exhibit 1 page 163 email icl mother solicitor dated 29 june 2020 61 exhibit 1 page 157 urinalysis test 62 exhibit 1 page 152 urinalysis test 63 exhibit 1 page 153 urinalysis test 64 exhibit 1 page 154 urinalysis test 65 exhibit 1 page 174 text message icl mother dated 21 january 2021 66 exhibit 1 page 178 text message icl mother dated 28 january 2021 67 am v aif 1999 flc 92 852 277 193 68 baghti baghti or 2015 famcafc 71at 63 69 v 1988 166 clr 69at 76 70 bondelmonte v bondelmonte 2017 hca 8 2016 259 clr 662 71 stott holgar 2017 famcafc 152at 26 72 bank bank 2015 famcafc 36 2015 flc 93 637 73 v supra citingbriginshaw v briginshaw 1938 hca 34 1938 60 clr 336 362 dixon j 74 exhibit 14 wapol information regarding incident april 2020 75 exhibit 12 wapol statement material fact incident january 2020 regarding applicant 76 exhibit 18 page 105 546 extract state department file
Review of Secrecy Laws [2009] ALRCDP 74.txt	review secrecy law 2009 alrcdp 74alrc discussion paper 74review secrecy lawscontentsterms referencelist participantslist proposal questions1 introduction inquirybackgroundscope inquiryprocess reformdiscussion paper 742 open government secrecy public interestintroductionwhy secrecy towards opennessthe idea accountabilitysecrecy law australianconstitutionthe public interest3 sharing commonwealth informationintroductionframework information sharingoutcomes information sharing4 freedom information privacy secrecyintroductionfreedom informationarchivesprivacy5 overview current secrecy lawsintroductioncommon law dutiesstatutory secrecy provisionsgeneral criminal offencescomment6 need general secrecy offenceintroductioncriminal civil administrative penaltiesthe need general secrecy offence7 general secrecy offence harm public interestsintroductionduty disclose informationharm identified public interests8 general secrecy offence elementsintroductionwhose conduct regulated initial subsequent disclosureswhat conduct regulated information protected 9 general secrecy offence exception penaltiesexceptions defencesexceptions defence inclusion general secrecy offencepublic interest disclosurepenaltiesother issues10 specific secrecy offence elementsintroductionreasonable likelihood harmwhose conduct regulated conduct regulated information protected 11 specific secrecy offence exception penaltiesintroductionexceptions defencespenaltiesconsistency penaltieslevel maximum penalty12 specific secrecy offence simplification consistencyintroductionreplication secrecy offencesidentifying example substantial replicationcase study crime act 1914 cth 79consistency secrecy offencesconsolidation secrecy offencesimplementation13 administrative obligation australian public serviceintroductionthe australian public serviceframework secrecy obligation apsprejudice effective working governmentinformation communicated confidenceexceptions defencespenaltiesprocesses dealing breaches14 regulating beyond thepublic service actintroductioncommonwealth employee outside apsformer commonwealth employeespersons outside commonwealth employmentlawful reasonable employer directions15 fostering effective information handling practicesintroductionan effective information handling culturerisk factor inappropriate information handlingagency policy guidelinesmemorandums understandingtraining development programsoaths affirmation acknowledgement secrecyinformation communication technology systemsavenues employee query concernsfostering effective information handling agency levelfostering effective information handling private sectorappendix 1 list submissionsappendix 2 list agency organisation individual consultedappendix 3 list abbreviationsappendix 4 table secrecy provisionsappendix 5 extract key secrecy provisionsthis discussion paper reflects law 1 june 2009 commonwealth australia 2009this work copyright information reproducing document whole part please refer alrc scopyright statement isbn 978 0 9804153 6 0commission reference dp 74the australian law reform commission established 1 january 1975 thelaw reform commission act 1973 cth reconstituted theaustralian law reform commission act 1996 cth office alrc level 25 135 king street sydney nsw 2000 australia alrc publication made available range accessible format people disability require assistance please contact alrc telephone within australia 02 8238 6333international 61 2 8238 6333tty 02 8238 6379facsimile within australia 02 8238 6363international 61 2 8238 6363e mail info alrc gov aualrc homepage www alrc gov aumaking submissionany public contribution inquiry called submission actively sought alrc broad cross section community well special interest inquiry submission usually written set format need formal document possible submission electronic format preferred would helpful comment addressed specific question numbered paragraph paper open inquiry policyin interest informed public debate alrc committed open access information submission provide important evidence inquiry common alrc draw upon content submission quote refer publication part alrc policy non confidential submission made available person organisation upon request completion inquiry also may published alrc website purpose policy inquiry considered completed final report tabled parliament however alrc also accepts submission made confidence confidential submission may include personal experience wish retain privacy sensitive information commercial confidence material request access confidential submission determined accordance federalfreedom information act 1982 provision designed protect sensitive information given confidence absence clear indication submission intended confidential alrc treat submission non confidential submission sent executive directoraustralian law reform commissiongpo box 3708sydney nsw 2001e mail secrecy alrc gov ausubmissions may also made using theonline formon alrc homepage www alrc gov auor via talk u secrecy website closing date submission response dp 74 7 august 2009 return top term referencereview secrecy lawsi robert mcclelland attorney general australia regard desirability comprehensive consistent workable law practice relation protection commonwealth information increased need share information within government private sector importance balancing need protect commonwealth information public interest open accountable system government andprevious report including previous report commission identified need reform arearefer australian law reform commission inquiry report pursuant tosubsection 20 1 theaustralian law reform commission act 1996 option ensuring consistent approach across government protection commonwealth information balanced need maintain open accountable government providing appropriate access information 1 carrying review commission consider relevant law practice relating protection commonwealth information including scope appropriateness legislative provision regarding secrecy confidentiality b whether need consolidate modernise relevant provision currently thecrimes act 1914and commonwealth legislation inclusion thecriminal code c way secrecy law thecrimes actinteract law practice including relating secrecy privacy freedom information archiving whistle blowing data matching whether different consideration secrecy law relating protection national security sensitive commonwealth information ande related matter 2 carrying review commission identify consult key stakeholder including relevant commonwealth state territory agency private sector body 3 commission provide final report 31 october 2009 dated 5 august 2008robert mcclellandattorney general return top list participantsaustralian law reform commissiondivisionsenior legal officerslegal officersconsultantresearch managerlibrarianproject assistantlegal internsadvisory committee memberslist participantsaustralian law reform commissiondivisionthe division alrc constituted theaustralian law reform commission act 1996 cth purpose inquiry comprises following professor david weisbrot president professor le mccrimmon commissioner professor rosalind croucher commissioner charge justice berna collier part time commissioner justice susan kenny part time commissioner senior legal officerscarolyn adamsbruce alstonlegal officersanna dziedziclisa ecksteinconsultantamie griersonresearch managerjonathan dobinsonlibrariancarolyn kearneyproject assistanttina brienlegal internsmichael evrystephanie fuscokelvin liewisley markmankaty mcgreelarisa michalkotracy naunaomi orebchristina raykatie schafermichael wellssmriti sriramyi shun teohrebecca zamanadvisory committee membersms lynelle briggs australian public service commissionermr ian carnell inspector general intelligence securitymr chris craigie sc commonwealth director public prosecutionsprofessor robin creyke college law australian national universitymr simon daley australian government solicitormr chris erskine sc blackburn chambersjustice paul finn federal court australiamr kevin fitzpatrick chief tax counsel australian taxation officemr stephen gageler sc solicitor general australiamr john mcginness director national judicial college australiaprofessor john mcmillan commonwealth ombudsmanmr andrew metcalfe secretary department immigration citizenshipassociate professor moira patterson law faculty monash universitymr peter timmins timmins consultingms annette willing australian government attorney general department return top list proposal questions4 freedom information privacy secrecy6 need general secrecy offence7 general secrecy offence harm public interests8 general secrecy offence elements9 general secrecy offence exception penalties10 specific secrecy offence elements11 specific secrecy offence exception penalties12 specific secrecy offence simplification consistency13 administrative obligation australian public service14 regulating beyond public service act15 fostering effective information handling practiceslist proposal questions4 freedom information privacy secrecyproposal 4 1reflecting commitment open government ensure claim exemption considered case case basis rather mechanism global exemption secrecy provision 38of thefreedom information act 1982 cth repealed proposal 4 2the office parliamentary counsel issue drafting direction proposed secrecy provision must indicate expressly whether override thefreedom information act 1982 cth proposal 4 3ifs 38of thefreedom information act 1982 cth repealed thefoi guideline exemption section foi actissued department prime minister cabinet proposed information commissioner guideline updated inform freedom information officer existence secrecy provision relevant factor consider deciding whether disclose document proposal 4 4ifs 38of thefreedom information act 1982 cth retained responsible minister proposed freedom information commissioner ensure list secrecy provision sch 3 act regularly reviewed updated proposal 4 5complementing idea access underpins thearchives act 1983 cth thefreedom information act 1982 cth 33 3 thearchives actshould repealed proposal 4 6thearchives act 1983 cth amended include provision modelled ons 59 effect record enters open access period non disclosure provision applicable record cease effect unless expressly stated relevant legislation proposal 4 7the office parliamentary counsel issue drafting direction proposed non disclosure provision indicate expressly whether override thearchives act 1983 cth open access period 6 need general secrecy offenceproposal 6 1sections 70 79 3 thecrimes act 1914 cth repealed replaced new offence thecriminal code cth regulates disclosure commonwealth information commonwealth officer general secrecy offence 7 general secrecy offence harm public interestsproposal 7 1the proposed general secrecy offence require disclosure commonwealth information reasonably likely intended harm national security defence international relation commonwealth b prejudice prevention detection investigation prosecution punishment criminal offence breach law imposing penalty sanction enforcement law relating confiscation proceeds crime protection public revenue c endanger life physical safety person pose serious threat public health public safety e substantial adverse effect personal privacy f substantial adverse effect person respect lawful business professional affair business commercial financial affair organisation proposal 7 2the proposed general secrecy offence consist three tier follows first tier unauthorised disclosure caused reasonably likely cause harm one specified public interest strict liability attache result b second tier commonwealth officer reckless whether knew intended disclosure would substantial adverse effect personal privacy ii substantial adverse effect person respect lawful business professional affair business commercial financial affair organisation c third tier commonwealth officer reckless whether knew intended disclosure would harm national security defence international relation commonwealth ii prejudice prevention detection investigation prosecution punishment criminal offence breach law imposing penalty sanction enforcement law relating confiscation proceeds crime protection public revenue iii endanger life physical safety person iv pose serious threat public health public safety proposal 7 3the first tier offence include defence circumstance commonwealth officer prove neither knew could reasonably expected known disclosure information likely harm specified public interest 8 general secrecy offence elementsproposal 8 1the proposed general secrecy offence regulate conduct commonwealth officer defined follows governor general b minister parliamentary secretary c australian public service employee individual appointed engaged thepublic service act 1999 cth individual employed commonwealth otherwise thepublic service act e member australian defence force f member special member australian federal police g individual hold perform duty office established law commonwealth h officer employee commonwealth authority individual exercise power perform function conferred law commonwealth j individual entity contracted service provider commonwealth contract k individual officer employee contracted service provider commonwealth contract provide service purpose whether direct indirect commonwealth contract proposal 8 2the proposed general secrecy offence shouldnotregulate conduct judicial officer exercising judicial power commonwealth member australian parliament minister parliamentary secretary proposal 8 3there new offence thecriminal code cth subsequent disclosure offence subsequent disclosure commonwealth information person information disclosed commonwealth officer breach proposed general secrecy offence b person know reckless whether information disclosed breach proposed general secrecy offence c person know intends reckless whether subsequent disclosure information harm reasonably likely harm one public interest set proposal 7 1 proposal 8 4the proposed subsequent disclosure offence include express exception disclosure information already public domain result lawful disclosure proposal 8 5the proposed general secrecy offence regulate disclosure commonwealth information fault element attaching disclosure intention proposal 8 6the proposed general secrecy offence apply information person access reason commonwealth officer defined proposal 8 1 9 general secrecy offence exception penaltiesproposal 9 1the proposed general secrecy offence expressly include exception applying disclosure course commonwealth officer function duty b authorised relevant agency head minister agency head minister certifies disclosure public interest c information already public domain result lawful disclosure proposal 9 2the proposed general secrecy offence include note cross referencing immunity provided proposed commonwealth public interest disclosure legislation proposal 9 3the general secrecy offence three tier three penalty level strict liability attache requirement prove harm penalty maximum two year imprisonment pecuniary penalty exceeding 120 penalty unit b commonwealth officer know reckless whether intends disclosure commonwealth information substantial adverse effect personal privacy ii substantial adverse effect person respect lawful business professional affair business commercial financial affair organisation penalty maximum five year imprisonment pecuniary penalty exceeding 300 penalty unit c commonwealth officer know reckless whether intends disclosure commonwealth information harm national security defence international relation commonwealth ii prejudice prevention detection investigation prosecution punishment criminal offence breach law imposing penalty sanction enforcement law relating confiscation proceeds crime protection public revenue iii endanger life physical safety person iv pose serious threat public health public safetythe penalty maximum seven year imprisonment pecuniary penalty exceeding 420 penalty unit proposal 9 4where person know reckless whether commonwealth information disclosed breach general secrecy offence discloses information knowing reckless whether intending subsequent disclosure commonwealth information substantial adverse effect personal privacy b substantial adverse effect person respect lawful business professional affair business commercial financial affair organisation penalty maximum five year imprisonment pecuniary penalty exceeding 300 penalty unit proposal 9 5where person know reckless whether commonwealth information disclosed breach general secrecy offence discloses information knowing reckless whether intending subsequent disclosure commonwealth information harm national security defence international relation commonwealth b prejudice prevention detection investigation prosecution punishment criminal offence breach law imposing penalty sanction enforcement law relating confiscation proceeds crime protection public revenue c endanger life physical safety person pose serious threat public health public safety penalty maximum seven year imprisonment pecuniary penalty exceeding 420 penalty unit proposal 9 6the proposed general secrecy offence subsequent disclosure offence provide court satisfied person disclosed disclose information contravention provision court may grant injunction restrain disclosure 10 specific secrecy offence elementsproposal 10 1specific secrecy offence generally incorporate requirement offence committed must reasonable likelihood disclosure information cause harm specified public interest except clear countervailing public interest question 10 1in circumstance inappropriate secrecy offence require disclosure reasonably likely cause harm example relation disclosure national security classified information information concerning defence international relation commonwealth proposal 10 2 specific secrecy offence incorporate reasonable likelihood harm requirement recklessness generally fault element offence punishable imprisonment maximum two year b offence strict liability apply relation likelihood harm proposal 10 3specific secrecy offence stated apply person reviewed establish whether offence apply commonwealth officer subsequent disclosure defined general secrecy offence subsequent disclosure offence proposal 8 1 8 3 proposal 10 4specific secrecy offence apply commonwealth officer reviewed establish whether offence stated apply also former commonwealth officer proposal 10 5specific secrecy offence generally extend conduct disclosure information making record receiving possessing protected information proposal 10 6specific secrecy offence generally require intention fault element disclosure information proposal 10 7specific secrecy offence provide strict liability applies one physical element reviewed establish whether application strict liability remains justified proposal 10 8specific secrecy offence apply commonwealth officer generally apply information commonwealth officer access reason commonwealth officer 11 specific secrecy offence exception penaltiesproposal 11 1specific secrecy offence include defence reviewed ass whether defence appropriate view general principle criminal responsibility set ch 2 thecriminal code defence found appropriate consideration given recasting provision exception rather defence proposal 11 2specific secrecy offence include extensive codification permissible disclosure reviewed establish whether exception necessary view desirability simplifying secrecy offence proposal 11 3specific secrecy offence apply commonwealth officer generally accompanied note cross referencing immunity provided proposed commonwealth public interest disclosure legislation proposal 11 4in order ensure consistency secrecy offence provision specify fine individual corporation different would apply formula set thecrimes act 1914 cth adopted b penalty different would apply alternate penalty proceeding summarily indictable offence set thecrimes actwere adopted c penalty punishable summary conviction thecrimes act offence carrying maximum penalty would otherwise tried jury indictment proposal 11 5the penalty specific secrecy offence reviewed consistency general secrecy offence subsequent disclosure offence proposal 9 3 9 5 accordance proposal 11 7 11 11 proposal 11 6the maximum penalty initial subsequent unauthorised handling commonwealth information specific secrecy offence generally subject relevant difference relation fault element reasonable likelihood harm proposal 11 7guidance benchmark penalty specific secrecy offence consistent proposal 11 8 11 11 incorporated attorney general department sguide framing commonwealth offence civil penalty enforcement power proposal 11 8subject proposal 11 9 11 10 specific secrecy offence generally provide maximum penalty two year imprisonment pecuniary penalty exceeding 120 penalty unit proposal 11 9specific secrecy offence generally provide person know reckless whether intends disclosure commonwealth information substantial adverse effect personal privacy b substantial adverse effect person respect lawful business professional affair business commercial financial affair organisation penalty maximum five year imprisonment pecuniary penalty exceeding 300 penalty unit proposal 11 10specific secrecy offence generally provide person know reckless whether intends disclosure commonwealth information harm national security defence international relation commonwealth b prejudice prevention detection investigation prosecution punishment criminal offence breach law imposing penalty sanction enforcement law relating confiscation proceeds crime protection public revenue c endanger life physical safety person pose serious threat public health public safetythe penalty maximum seven year imprisonment pecuniary penalty exceeding 420 penalty unit proposal 11 11specific secrecy offence provide maximum penalty imprisonment le six month pecuniary penalty reviewed considered repeal 12 specific secrecy offence simplification consistencyproposal 12 1commonwealth secrecy offence generally repealed scope offence substantially replicates proposed general secrecy offence b retained offence differ significant necessary way proposed general secrecy offence proposal 12 2section 79 thecrimes act 1914 cth repealed new provision inserted thecriminal code cth making offence person without lawful authority intending prejudice commonwealth security defence disclose obtain information concerning commonwealth security defence b fail comply direction given lawful authority respect use information concerning commonwealth security defence offence punishable maximum penalty ten year imprisonment fine 600 penalty unit proposal 12 3the australian government review commonwealth secrecy offence retained view consolidation possible single provision part multiple secrecy provision exist act b one act multiple secrecy provision exist one act australian government agency agency responsible proposal 12 4the australian government review commonwealth secrecy offence retained consistency proposed general secrecy offence accordance proposal 10 1 10 8 11 1 11 11 12 1 12 3 proposal 12 5the attorney general department incorporate guidance theguide framing commonwealth offence civil penalty enforcement powersdealing circumstance enactment specific secrecy offence may justified b drafting secrecy provision specific secrecy provision consistent replicate scope general secrecy offence guidance incorporate drafting advice contained proposal 10 1 10 8 11 1 11 11 12 1 12 3 13 administrative obligation australian public serviceproposal 13 1regulation 2 1of thepublic service regulation 1999 cth amended apply information australian public service employee access reason employment b disclosure reasonably likely prejudice effective working government proposal 13 2regulation 2 1of thepublic service regulation 1999 cth specify determining whether disclosure information reasonably likely prejudice effective working government disciplinary authority regard factor nature information disclosed including likelihood would subject release thefreedom information act 1982 cth mean b circumstance disclosure made including whether australian public service employee took reasonable step comply agency information handling policy lawful reasonable direction concerning disclosure information proposal 13 3the express prohibitionon disclosure information communicated confidence set reg 2 1 4 thepublic service regulation 1999 cth removed proposal 13 4regulation 2 1of thepublic service regulation 1999 cth include note cross referencing immunity provided proposed commonwealth public interest disclosure legislation proposal 13 5the information handling policy developed australian government agency accordance proposal 15 1 clearly set disciplinary penalty could result breach secrecy obligation including factor considered determining penalty proposal 13 6thepublic service act 1999 cth provide evidence information given document produced australian public service employee purpose administrative disciplinary proceeding respect secrecy obligation admissible criminal proceeding employee substantially conduct 14 regulating beyond thepublic service actproposal 14 1australian government agency employ person thepublic service act 1999 cth including agency prescribed thefinancial management accountability act 1997 cth body subject thecommonwealth authority company act 1997 cth include agency term condition employment requirement set reg 2 1 thepublic service regulation 1999 cth extent requirement consistent agency function structure b adopt safeguard set thepublic service actfor dealing suspected breach reg 2 1 extent safeguard consistent agency function structure proposal 14 2australian government agency remind employee termination continuing liability general secrecy offence relevant specific secrecy offence obligation equitable duty confidence proposal 14 3an australian government agency enters contract service involving access commonwealth information include contract confidentiality clause clearly set category information confidential commonwealth information b requires person commonwealth employee access confidential commonwealth information reason contract agree comply contractual confidentiality requirement c permit disclosure confidential commonwealth information disclosure amount public interest disclosure proposed commonwealth public interest disclosure legislation proposal 14 4the australian government include term condition appointment member board committee secrecy requirement equivalent imposed commonwealth employee related employment context extent requirement consistent board committee function structure b right terminate appointment member event breach secrecy obligation question 14 1are situation neither administrative penalty contractual remedy apply unauthorised disclosure commonwealth information civil penalty suitable way address gap application better way dealing situation proposal 14 5australian government agency review administrative secrecy requirement differ revised reg 2 1 thepublic service regulation 1999 cth including lawful reasonable direction issued employee ensure consistent implied constitutional freedom political communication 15 fostering effective information handling practicesproposal 15 1australian government agency develop implement policy clarifying application relevant secrecy law information holding policy include type information employee lawfully disclose performance duty b type information employee must obtain authority disclosure including potential unauthorised disclosure result disciplinary action c circumstance unauthorised handling information could lead criminal proceeding avenue employee raise query concern including process make public interest disclosure proposal 15 2australian government agency make information handling policy publicly available save certain exceptional case would unreasonable impractical proposal 15 3australiangovernment agency regularly share information agency body enter memorandum understanding setting term condition exchange information proposal 15 4australian government agency develop administer training development program employee induction regular interval thereafter information handling obligation relevant position includingthe circumstance appropriate share information avenue making public interest disclosure proposal 15 5any australian government agency administers oath affirmation declaration secrecy ensure properly reflect required relevant commonwealth secrecy law proposal 15 6australian government agency put place maintain information communication technology system facilitate secure convenient handling commonwealth information including access control audit mechanism proposal 15 7private sector organisation thatperform service behalf australian government contract take step ensure employee access commonwealth information aware obligation secrecy including circumstance criminal civil administrative liability could result return top 1 introduction inquirybackgroundrecommendations reviewa plethora provisionsscope inquiryterms referencedefinitionsmapping secrecy lawsmatters outside inquiryprocess reformtimeframe inquiryadvisory committeeissues paper 34inquiry snapshotcommunity consultationwritten submissionsdiscussion paper 74overviewchapter structure1 introduction inquirybackground1 1 5 august 2008 attorney general australia hon robert mcclelland mp asked australian law reform commission alrc conduct inquiry option ensuring consistent approach across government protection commonwealth information balanced need maintain open accountable government providing appropriate access information term reference set front discussion paper headed review secrecy law 1 2 secrecy law collectively provision protect commonwealth information imposing obligation handle general provision 70 thecrimes act 1914 cth 1 person commonwealth officer publishes communicates except person authorized publish communicate fact document come knowledge possession virtue commonwealth officer duty disclose shall guilty offence 2 person commonwealth officer publishes communicates without lawful authority excuse proof whereof shall lie upon fact document came knowledge possession virtue commonwealth officer time ceased commonwealth officer duty disclose shall guilty offence penalty imprisonment 2 year 1 3 section 70 described pretty wide provision 1 also alone imposing obligation commonwealth officer respect handling information course inquiry date alrc identified 507 provision described secrecy provision 358 create secrecy offence recommendation review1 4 report supporting introduction thefreedom information act 1982 cth foi act senate standing committee legal constitutional affair urged australian government reconsiders 70 implausible enact presumption openness leaving untouched provision likesection 70that provide legal foundation system discretionary secrecy presently exists 2 committee also noted many secrecy provision conflicted diametrically philosophy espoused freedom information bill 1978 cth 3 1 5 commonwealth secrecy law considered number review inquiry either directly indirectly 1983 human right commission reviewed thecrimes actand found 70 could operate manner inconsistent art 19 theinternational covenant civil political right freedom expression commission recommended 70 amended limit operation kind information respect restriction may imposed art 19 3 protection national security public order public health moral 4 1 6 1991 committee chaired sir harry gibbs undertook review commonwealth criminal law gibbs committee 5 including secrecy provision imposed criminal sanction committee concluded undesirable sanction machinery criminal law applied relation unauthorised disclosure form official information avoided possible 6 1 7 gibbs committee recommended 70 thecrimes actas well 79 deal unauthorised communication official secret repealed thatthe application criminal sanction general criminal law commonwealth disclosure official information limited certain category information widely stated strictly required effective functioning government 7 1 8 gibbs committee went consider category information protected criminal sanction included information relating intelligence security service defence foreign relation information obtained confidence government international organisation 8 1 9 1994 senate select committee public interest whistleblowing recommended existing provision thecrimes actbe amended allow disclosure information public interest defence prosecution 9 1 10 1995 house representative standing committee legal constitutional affair considered operation s 70 79 noted longstanding call reform 10 committee identified number problem section included lack precision drafting particularly since duty disclose referred 70 located thecrimes actitself application section officer employed thepublic service act 1922 cth 11 committee also noted lack consistency drafting penalty across secrecy provision commonwealth statute 12 committee recommended existing secrecy provision rationalised consolidated general offence within thecrimes act 13 1 11 protection whistleblower became focus attention release february 2009 report house representative standing committee legal constitutional affair house representative standing committee whistleblower protection comprehensive scheme commonwealth public sector recommended public interest disclosure bill introduced parliament matter priority 14 explained chair committee mark dreyfus qc mp recommendation reportreflect committee considers primary legislative priority promote integrity public administration support open accountable government informed view legislation based clear commonsense principle provide reasonable certainty person reading yet legislation alone sufficient shift culture need take place foster open public sector receptive question way thing done 15 1 12 principal focus recommendation house representative standing committee protect broad range employee public sector well contractor consultant make public interest disclosure may subject secrecy provision committee recommended whistleblower protection provide immunity criminal liability including secrecy offence 16 1 13 alrc occasion comment secrecy law three prior review first 1995 alrc administrative review council recommended thorough review commonwealth legislative provision prohibiting disclosure government held information public servant conducted ensure provision prevent disclosure information exempt foi act 17 1 14 secondly 2004 inkeeping secret protection classified security sensitive information alrc 98 alrc recommended australian government review legislative regulatory provision giving rise duty disclose official information including particularregulation 2 1of thepublic service regulation ensure duty secrecy imposed relation information genuinely requires protection unauthorised disclosure likely harm public interest 18 1 15 thirdly 2008 infor information australian privacy law practice alrc 108 alrc recommended australian government undertake review secrecy provision federal legislation review consider among matter provision interacts theprivacy act 19 1 16 recommendation review secrecy law prompted large measure great number diverse range secrecy provision plethora provisions1 17 term reference attorney general listed first matter regard desirability comprehensive consistent workable law practice relation protection commonwealth information 20 1 18 noted alrc identified 507 secrecy provision introduced different time different language often widely ranging penalty john mcginness noted expansion commonwealth role mid 1940s area taxation health education welfare scientific research industry assistance regulation secrecy provision increased number reflection increase personal commercially sensitive information collected government 21 1 19 lack consistency among many provision remarked upon 1991 professor paul finn one amalgamates plethora statutory provision regulation code administrative instruction common law rule one left almost every australian jurisdiction ill fitting sometimes unintelligible mosaic prescription proscription individual official consequence conflicting sometimes quite unacceptable legal demand trivial criminalised important left state lamentable uncertainty 22 1 20 several intertwined issue finn observation provide relevant backdrop inquiry desire achieve comprehensive consistent workable law first basic practical matter identify plethora provision without work wilderness remarked early consultation 23 map produced alrc described provides thorough picture relevant provision basis comparison analysis throughout inquiry 24 1 21 secondly key challenge identify core principle value underpinning mosaic prescription proscription noted finn 25 distinguish value play relation commonwealth provision concerning information 1 22 information handling management protection commonwealth context expressed spectrum continuum open government end spectrum find information disclosed matter course common practice commonwealth department agency maintain website provide enormous amount information desirable interest promoting open accountable government democratic society well practical efficient information readily available public way fewer request question foi application departmental officer handle information available mechanism request foi act also includes information normally available public example covered exception foi disclosure rule nevertheless may disclosed exercise discretion departmental head senior officer moving towards protected information end one find information shared specific agreement protocol legislative arrangement amongst government agency private sector partner otherwise protected confidentiality secrecy provision finally information strictly secret closely protected obviously information relating national security ongoing law enforcement operation also many category information exempt foi legislation even end spectrum however may circumstance information otherwise secret revealed prescribed public interest disclosure whistleblower mechanism 1 23 thirdly consequence provision individual officer need examined closely penalty regime appropriate fit restricted proscribed individual left state lamentable uncertainty 26 respect conduct relation commonwealth information aspect problem identified alrc 98 also recommended conducting review secrecy provision clear distinction drawn conduct give rise administrative sanction conduct give rise criminal sanction scope inquiryterms reference1 24 term reference reproduced beginning discussion paper alrc directed focus option ensuring consistent approach across government protection commonwealth information well providing appropriate access information interest maintaining open accountable government 1 25 course inquiry alrc directed consider relevant law practice relating protection commonwealth information including scope appropriateness legislative provision regarding secrecy confidentiality b whether need consolidate modernise relevant provision currently thecrimes act 1914 cth commonwealth legislation inclusion thecriminal code cth c way secrecy law thecrimes actinteract law practice including relating secrecy privacy freedom information archiving whistle blowing data matching whether different consideration secrecy law relating protection national security sensitive commonwealth information ande related matter definitions1 26 inquiry concern secrecy law relation commonwealth information often hand commonwealth officer expression requires definition secrecy laws1 27 key preliminary step inquiry identify provision included concept secrecy provision established definition term secrecy law secrecy provision 1 28 commonwealth secrecy provision information protect varied offence general application like 70 thecrimes act prohibit disclosure ofanyinformation government officer obtained official capacity duty disclose provision quite specific prohibit disclosure identified classified sensitive personal information 1 29 reviewing range provision considered inquiry alrc identified example provision deal communicating disclosing information provision receiving information secret concerning misuse information issue secrecy also aspect management information administrative sense well subject specific prescription legislation 1 30 purpose inquiry alrc adopted broad approach characterisation secrecy provision defined secrecy provision provision act subordinate legislation imposes secrecy confidentiality obligation 1 31 secrecy provision limited restricting disclosure information may cover chain conduct lead possible disclosure soliciting obtaining copying using retaining divulging communicating information also may include provision dealing receipt disclosed information provision identified however focused protecting confidentiality information 1 32 related provision sit outside definition principal focus protection information obligation confidentiality secrecy included concept secrecy law purpose inquiry example include provision prohibit misuse information personal gain principal concern provision fraud protection confidentiality information 27 concern storage modifying destroying information andpermit disclosure example personal information certain circumstance core aim concern privacy personal information 1 33 aspect practice procedure regarding protection information management information handling also relevant considered separately chapter 15 commonwealth information1 34 commonwealth information may also called government information information developed received collected behalf commonwealth government includes information commonwealth receives individual personal information provided agency like centrelink information developed house example intelligence report information generated foreign government shared commonwealth government 1 35 commonwealth information may classified number category based upon sensitivity theaustralian government protective security manual psm 28 bind commonwealth agency series procedure designed protect commonwealth information including classified information sensitive information psm also refers official information includes information received collected behalf government agency contractor 29 1 36 information classified marked accordingly given various form protection including restricting access people security clearance appropriate level physical protection storage approved container sufficient strength meeting security standard restriction may transferred one person another chapter 15 discus detail psm manual policy guideline relating information handling commonwealth officer person made privy commonwealth information subject protection classified security sensitive information also considered alrc 98 30 1 37 outside classification process document prepared use commonwealth cabinet formulate policy make decision given special protection basis unauthorised disclosure would damage fullness frankness discussion cabinet room would thereby inhibit process good government document marked cabinet confidence regardless security consideration cabinet handbook stipulates cabinet confidence document require level protection least equivalent given document classified protected guideline set psm 31 1 38 however fact information neither classified cabinet document mean freely available legislation common law duty confidence may also protect commonwealth information certain circumstance although foi act give public right access government held government controlled information subject number exception exemption 32 commonwealth officer1 39 individual may subject secrecy obligation relation commonwealth information sometimes referred commonwealth officer sometimes public service employee similar term 1 40 thecrimes actincludes general prohibition unauthorised disclosure official information current former commonwealth officer 33 commonwealth officer defined including appointed engaged thepublic service act 1999 cth holding office employed commonwealth perform service behalf commonwealth 34 1 41 thepublic service actrefers australian public service aps employee includes employed australian government department statutory agency commonwealth officer defined thecrimes act includes wider aps employee definition discussed detail chapter 8 1 42 purpose inquiry wider expression used unless context requires narrower term whistleblower1 43 term whistleblower relatively recent origin macquarie dictionary suggests term emerged united state second half 1960s phrase blow whistle commonly used even official context example house representative standing committee report referred 35 16 thepublic service act 1 44 inquiry term whistleblower used refer someone make public interest disclosure example alleging conduct commonwealth officer agency corrupt involves maladministration topic discussed greater detail chapter 9 mapping secrecy laws1 45 part background research work inquiry alrc undertook mapping exercise identify analyse secrecy provision noted purpose inquiry alrc defined secrecy provision broadly provision primary subordinate legislation imposes secrecy confidentiality obligation 1 46 507 secrecy provision identified alrc scattered throughout 175 piece primary subordinate legislation provision listed table appendix 4 approximately 70 statutory secrecy provision identified expressly impose criminal penalty breach secrecy confidentiality obligation provision listed first section table appendix 4 remaining provision set duty secrecy confidentiality establish rule handling protected information may provide civil administrative penalty breach duty provision listed second section table appendix 4 provision create offence 70 thecrimes actmay operate attach criminal sanction breach commonwealth officer provision 1 47 table include provision merely clarify inform operation secrecy provision exception provision set circumstance handling commonwealth information breach secrecy provision 1 48 alrc used map secrecy law basis comparing analysing scope current secrecy law inform development proposed reform figure drawn data expressed throughout discussion paper approximate percentage value usually rounded nearest 5 percentage value differ according whether assessment includes secrecy provision offence provision matter outside inquiry1 49 reviewing commonwealth secrecy provision term reference ask alrc consider relevant law practice relating protection commonwealth information idea protecting commonwealth information conceived broadly encompass issue varied file document physically protected whether classification process appropriate effective extent production commonwealth information compelled commonwealth officer course investigation legal proceeding could also encompass rule evidence certain information cannot adduced court tribunal 1 50 alrc approach inquiry informed emphasis term reference increased need share information within government private sector namely business government rather business court tribunal addition alrc addressed use government information court tribunal extent prior report 1 51 alrc 98 alrc considered protection classified security sensitive information context court tribunal proceeding 36 alrc recommended introduction new national security information procedure act would apply australian court tribunal many recommendation implemented enactment thenational security information criminal civil proceeding act2004
Applicant: Jenny Ratcliffe Principal: Paul Anthony Ratcliffe IRT Reference: W94_00710 #number 4043 [1994] IRTA 4043 (7 July 1994).txt	applicant jenny ratcliffe principal paul anthony ratcliffe irt reference w94 00710 number 4043 1994 irta 4043 7 july 1994 paul anthony ratcliffedecision magdeline fadjiar senior member delivered perth 29 july 1994 class 100 spouse visa tribunal satisfied marriage genuine continuing applicant overstayed earlier visitor visa comply visa condition therefore subject 12 month exclusion period waiver exclusion period available whether compassionate compelling circumstance exist justify application waiver evidence spouse difficult financial condition caused financial commitment made party full knowledge applicant former illegal status adverse effect separation health tribunal satisfied evidence compassionate circumstance warrant waiver exclusion period assurance support requiredmigration act 1958 s 118 122migration 1993 regulation r 1 3 cl 100 333 5004migration review 1993 regulation r 36brewer irt decision 2179 9 june 1993 minister immigration local government ethnic affair v dhillon full court federal court 8 may 1990 unreported prasad v minister immigration local government ethnic affair federal court jenkinson j 22 march 1993 unreported decision reason decisionirt reference w94 00710 4043 docapplicant jennyratcliffeprincipal paul anthonyratcliffetribunal m fadjiar senior memberdate 29 july 1994place perthdecision pursuant power undersection 118 4 ba themigration act 1958 cth amended tribunal remit matter reconsideration direction paul anthony ratcliffe satisfied criterion prescribed grant class 100 spouse visa exception criterion relating public interest clause 104 334 schedule 2 themigration 1993 regulation reason decisionon 30 may 1994 tribunal received application jenny ratcliffe applicant australian citizen regulation 36 4 migration review 1993 regulation seeking review decision made 7 february 1994 primary decision delegate minister immigration ethnic affair refusing grant husband paul anthony ratcliffe principal class 100 spouse visa applicant since unsuccessfully sought review migration internal review office miro principal thirty two year old english national 16 november 1993 lodged application migration australia original application overseas post department immigration ethnic affair department australian consulate manchester application founded marriage applicant accompanied various supporting document including marriage certificate indicating married perth 14 march 1992 sponsorship form signed applicant 11 november 1993 full particular document may found department file file submitted tribunal pursuant tosection 122 2 themigration act 1958 cth act content file oral evidence given oath applicant brother frank demarte hearing held 21 july 1994 form part evidence tribunal relied making decision applicant accompanied solicitor hearing various criterion must satisfied class 100 spouse visa may granted prescribed inpart 100of schedule 2 migration 1993 regulation regulation criterion satisfied time lodgement original application see subdivision 100 32 others time decision see subdivision 100 33 main criterion must satisfied time application context case principal spouse australian citizen permanent resident sponsored spouse regulation 1 3 defines spouse person entered marriage recognised valid purpose act marriage ended divorce death one party ii party living separately apart permanent basis far relevant criterion must satisfied time decision require sponsorship still force marital relationship shared principal applicant genuine continuing acceptable assurance support may required principal satisfies public interest criterion includes relevant health requirement set clause 4001 4004 4007 4009 given principal previously australia specific entry criterion found clause 5001 5002 5004 5006 5009 5010 also relevant reason become apparent due course principal subject requirement prescribed clause 5004 read follows 5004 applicant person left australia otherwise deportee following compliance action immigration resulting detection whereabouts person illegal entrant prohibited non citizen b cancellation temporary entry permit held person result holder found immigration worked without authority c determination minister person failed comply terminating condition temporary entry permit held person subject result entry permit ceased force either application made 12 month departure person australia e minister satisfied particular case compassionate compelling circumstance justify waiver requirement paragraph principal australia 1989 1993 arrived perth 14 august 1989 holding visitor visa granted permission remain period six month visa subject condition work prohibited 5 february 1990 granted extension stay 14 august 1990 principal neither left australia date abide condition visa indeed departed australia albeit voluntarily detection department compliance section evidence suggests principal working aerobics instructor painter decorator throughout authorised unauthorised stay australia mid 1990 met applicant aerobics centre working started dating steady basis december year engaged september following year applicant told tribunal initially whole family opposed relationship principal trying utmost split come strict italian background principal first non italian ever dated couple managed overcome opposition principal eventually accepted part family 14 march 1992 couple married spent honeymoon port douglas commenced residing together house perth suburb yokine house purchased applicant october 1991 partly funded 70 000 bank loan told tribunal balance paid loan 30 000 parent principal living even married following sale property end 1992 couple moved applicant parent month later profit applicant made sale yokine house bought block land currambine joint name 14 september 1993 couple signed 90 000 building contract applicant father retired builder building house funded bank loan full amount although principal may contributed towards purchase land evidence indicates intention wife service loan jointly respective income applicant told tribunal husband time clearing 500 per week whereas nett monthly income 1400 3 november 1993 principal detected compliance action served l101 notice advising certain action may taken result illegal status australia departed australia 12 november 1993 original application spouse visa lodged four day later manchester application refused 7 february 1994 essentially ground principal caught specific entry criterion therefore subject twelve month exclusion period able lodge application primary decision maker considered waiver proviso decided exercising although neither primary miro decision maker made finding couple relationship think doubt regard departure australia applicant husband spoke telephone twice week following hearing copy telephone account tendered support applicant since visited england see husband six week november december last year although party presently physically apart tribunal satisfied living separately apart permanent basis current separation due process immigration matter resolved little doubt principal join wife australia always intention party purpose subdivision 100 32 tribunal satisfied time lodgement original application principal spouse australian citizen also lodged valid sponsorship relation application clause 100 333 requires time making decision tribunal satisfied couple genuine continuing relationship full court federal court inminister immigration local government ethnic affair vdhillon full court federal court 8 may 1990 unreported found true test whether marriage genuine whether time matter decided said party mutual commitment shared life husband wife exclusion others instance tribunal find test met nothing evidence give rise doubt relationship party genuine continuing one principal however still required surmount twelve month exclusion period arising clause 5004 schedule 5 regulation easter 1991 month relationship become serious one principal revealed applicant actually illegally australia although reaction one shock applicant told tribunal naive fully appreciated consequence could flow principal told proceeded engaged married twelve month made financial commitment clearly could met without principal income given status contingency remote one find rather curious applicant particular taken account enquiry made relation regularising principal status friend principal detected departed australia november 1993 applicant found situation might wait least twelve month husband would reunited importantly service housing loan income alone monthly mortgage repayment 710 commenced march 1994 assessment financial situation carried chartered accountant february 1994 suggests applicant finding difficult make end meet presently staying home parent rely financial assistance given loan pay car loan costing 500 per month addition applicant told tribunal mother buying clothes occasionally little doubt applicant missing husband undergoing emotional trauma result husband around said would go least week movie meal nowadays socialise much would go perhaps month mainly single friend none aware situation consequently put front friend also work unhappy time unable resign financial situation home situation much different said try brave parent become upset upset father weak heart fitted pacemaker well given approved union first place beginning make negative remark principal applicant endure silence people applicant could talk brother wife family comfort could provide applicant understandably somewhat limited applicant told tribunal difficulty sleeping reluctant take medication doctor prescribed dr hilary snell saw february year found anxious state extreme ongoing stress demonstrating symptom anxiety applicant also found experiencing uncontrollable outbreak tearfulness case hearing paragraph special entry criterion clause 5004 provides exclusion period may waived compassionate compelling circumstance neither word compassionate compelling legislatively defined must therefore accorded ordinary meaning respect tribunal agrees finding honour jenkinson j inprasadv minister immigration local government ethnic affair federal court 22 march 1993 unreported dealing word compassionate context regulation 131a 1 migration regulation unamended quoted approval meaning word found theoxford english dictionary 2nd ed feeling emotion person moved suffering distress another desire relieve pity incline one spare succour paragraph 8 2 relevant pam booklet people excluded admission australiaadopts interpretation along similar line word compelling denotes use force towards particular course action circumstance surrounding usually involuntary generated necessity amount compassionate compelling circumstance would justify waiver restriction principal entry australia instance question fact degree determined according circumstance case although principal circumstance example reason overstayed period three half year may relevant notper sedeterminative critical issue seems unreasonable suggest generally speaking circumstance relating australian party instance applicant would greater persuasive value process determining whether compassionate compelling justify waiver restriction seems unfortunate applicant find present predicament result would consider irresponsible behaviour part husband inre brewer irt decision 2179 9 june 1993 noted mere existence de facto spouse relationshipper seis sufficient justify waiver exclusion period instance however evidence suggests emotional stress applicant undergoing result separation husband exacerbated inability cope financial situation without someone able share feeling made difficult well put front home work described present situation nightmare want wake brother told tribunal since departure principal sister longer person baby family whole family rather upset situation hurt see suffering said close knit family brother lived home got married evidence tribunal satisfied compassionate circumstance warrant waiver exclusion period prescribed special entry criterion clause 5004 far criterion relating provision assurance support concerned given applicant presently employed regard principal vocation tribunal find one need provided unlikely would become unacceptable burden australian community pursuant power section 118 4 ba act amended tribunal accordingly remit application reconsideration direction principal satisfied criterion prescribed grant class 100 spouse visa exception relevant criterion relating public interest includes health assessment ____________ms fadjiarsenior member
BOX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 277 (29 April 2022).txt	box17 v minister immigration citizenship migrant service multicultural affair 2022 fedcfamc2g 277 29 april 2022 last updated 29 april 2022federal circuit family court australia division 2 box17 v minister immigration citizenship migrant service multicultural affair 2022 fedcfamc2g 277file number mlg 738 2017judgment judge lucevdate judgment 29 april 2022catchwords migration judicial review decision administrative appeal tribunal protection class xa subclass 866 visa citizen sri lanka whether evidence misconstrued whether failure properly consider claim whether jurisdictional errorlegislation migration act 1958 cth div 5 pt 5 s 36 474 476cases cited afp21 v minister immigration citizenship migrant service multicultural affair 2021 fcca 1322applicantwaee v minister immigration multicultural indigenous affair 2003 fcafc 184 2003 236 fcr 593 2003 75 ald 630dranichnikov v minister immigration multicultural affair 2003 hca 26 2003 77 aljr 1088 2003 197 alr 389 2003 73 ald 321eva17 v minister immigration border protection 2018 fcafc 214 2018 262 fcr 304htun v minister immigration multicultural affair 2001 fca 1802 2001 233 fcr 136 2001 194 alr 244lafu v minister immigration citizenship 2009 fcafc 140 2009 112 ald 1ludgero v minister immigration citizenship migrant service multicultural affair 2021 fcca 1060 2021 358 flr 215maroun v minister immigration citizenship 2009 fca 1284 2009 112 ald 424minister immigration multicultural affair v yusuf 2001 hca 30 2001 206 clr 323 2001 75 aljr 1105 2001 180 alr 1 2001 62 ald 225minister immigration ethnic affair v wu liang or 1996 hca 6 1996 185 clr 259 1996 70 aljr 568 1996 136 alr 481 1996 41 ald 1mzapc v minister immigration border protection 2021 hca 17 2021 95 aljr 441plaintiffs157 2002v commonwealth 2003 hca 2 2003 211 clr 476 2003 77 aljr 454 2003 195 alr 24 2003 72 ald 1rajmohan v minister immigration citizenship migrant service multicultural affair 2021 fcca 1556re minister immigration multicultural affair ex parte durairajasingham 2000 hca 1 2000 74 aljr 405 2000 168 alr 407 2000 58 ald 609singh v minister home affair 2019 fcafc 3 2019 267 fcr 200vaad v minister immigration multicultural indigenous affair 2005 fcafc 117division division 2 general federal lawnumber paragraph 31date last submission 3 march 2022date hearing 3 march 2022place perthcounsel applicant m yusolicitor applicant erskine rodan associatescounsel first respondent mr cunynghamesolicitor first respondent sparke helmorethe second respondent submitting appearance save costsordersmlg 738 2017federal circuit family court australia division 2 box17applicantand minister immigration citizenship migrant service multicultural affairsfirst respondentadministrative appeal tribunalsecond respondentorder made judge lucevdate order 29 april 2022the court order 1 originating application filed 12 april 2017 amended amended originating application filed 1 february 2022 amended amended originating application filed 7 february 2022 dismissed note form order subject entry court record note court may vary set aside judgment order remedy minor typographical grammatical error r 17 05 2 g federal circuit family court australia division 2 general federal law rule 2021 cth record variation order pursuant r 17 05federal circuit family court australia division 2 general federal law rule 2021 cth reason judgmentjudge lucevintroduction1 court application filed applicant box17 melbourne registry court styled federal circuit court australia 12 april 2017 unders 476of themigration act 1958 cth migration act judicial review application judicial review application concern decision administrative appeal tribunal tribunal decision tribunal respectively handed 24 march 2017 tribunal affirmed decision delegate delegate decision delegate respectively first respondent minister immigration border protection minister immigration citizenship migrant service multicultural affair minister refuse grant box17 protection class xa subclass 866 visa protection visa 2 1 february 2022 box17 filed amended judicial review application amended judicial review application amended judicial review application contained two ground box17 sought obtained leave court 15 february 2022 filing 7 february 2022 amended judicial review application amended judicial review application abandoning ground 2 amended judicial review application sole remaining ground review set 12 ground 1 3 following material court court book cb numbering 281 page exhibit 1 b box17 written submission filed 2 february 2022 box17 submission c minister written submission filed 17 february 2022 minister submission amended judicial review applicationbackground4 relevant background amended judicial review application follows 15 august 2006 box17 citizen sri lanka first entered australia student visa b seven half year later 24 february 2014 box17 applied protection visa cb 15 41 protection visa application c cb 33 36 box17 claim protection visa application set follows borrowed much money brother gambling drinking smoking habit melbourne brother angry tried hit returned sri lanka scared brother would kill ii difficulty facing friend community acne scar face claimed people talk ask face claimed tried kill past feared may kill returned sri lanka iii family angry in2012 cb 38 last time went sri lanka stayed house former secretary leader liberation tiger tamil eelam ltte brother father rejected racist iv work experience would able find job returned sri lanka v mental health condition returned sri lanka able see psychologist doctor able understand vi sri lankan authority could protect father brother power know politician police well included protection visa application psychological report dated 29 april 2013 psychologist report set 20 cb 45 report seemingly requested box17 cb 44 see 21 e 15 april 2015 delegate decision refuse grant protection visa cb 92 106 delegate accept box17 claim fear harm accordingly found 36 2 aa themigration actwere satisfied f 4 may 2015 box17 applied review refugee review tribunal cb 107 108 appointed migration agent represent cb 114 116 g 25 february 2017 box17 submitted statutory declaration tribunal claiming converted christianity in2016 cb 137 138 claimed would emotionally physically harmed returned sri lanka family buddhist background ii attack everywhere christian sri lanka since change government 2015 submitted article persecution christian sri lanka letter support church leader various community member counsellor cb 142 152 h 7 march 2017 box17 appeared tribunal give evidence present argument cb 155 158 10 march 2017 box17 provided migration agent submission tribunal pastor attached article regarding persecution christian sri lanka post tribunal hearing submission cb 166 220 pastor witness box17 tribunal hearing cb 221 tribunal decision5 tribunal decision tribunal accepted box17 may argument brother money box17 spent accept box17 harmed argument noting box17 stated brother tried hit actually cb 233 51 b accept box17 faced real chance serious harm real risk significant harm family member including brother box17 wasted money drug alcohol gambling whilst australia cb 233 234 52 c noted box17 evidence box17 believed familial dispute large resolved money repaid brother mother level rapprochement family therefore tribunal accept box17 family member would seek hit kill otherwise harm money wasted cb 234 53 found box17 fear return sri lanka reason wasted money drug alcohol gambling speculative based objective basis cb 234 54 e found box17 face real chance serious harm real risk significant harm arising debt family member concern relation wasted money drug alcohol gambling cb 234 54 f indicated sympathy box17 desire spoken rudely joking way appearance consider spoken manner constituted serious significant harm particular regard number relevant qualification suite skill acquired whilst australia found box17 could live freely work sri lanka despite concern appearance would ostracised discriminated reason cb 234 235 56 g accept box17 would harm appearance cb 234 235 56 h found box17 face real chance serious harm real risk significant harm reason appearance cb 234 235 56 considered box17 health concern broadly based psychologist report found box17 would able manage anxiety return sri lanka successfully reintegrate back sri lankan society therefore found box17 real chance serious harm real risk significant harm reason cb 235 57 j accepted box17 stayed house friend mother short period 2012 association friend senior officer friend done work cb 235 58 senior officer liked box17 family senior officer activity war including killing buddhist monk cb 235 59 although expressly stated tribunal court infers box17 claim see 4 c iii tribunal finding cb 235 58 59 senior officer likely senior officer ltte k noted box17 evidence friend done work senior officer harmed community cb 235 236 61 available evidence found box17 would real chance serious harm real risk significant harm friendship friend association senior officer cb 235 236 61 l accepted box17 converted christianity genuine religious interest cb 236 63 accepted box17 family faithful buddhist attend temple regularly cb 237 69 based available evidence relevant country information accept box17 would harmed family return sri lanka conversion practice christian cb 237 68 69 tribunal noted country information indicated box17 may ostracised family found constitute serious significant harm cb 237 238 69 71 n found box17 face real chance serious harm real risk significant harm family arising conversion practice christianity cb 237 68 69 238 71 73 based available evidence relevant country information also accept box17 would harmed community conversion christianity practising christian sri lanka cb 241 85 p found violence minority fact reducing sri lanka christian may targeted church leader proselytisers box17 made claim church leader proselytiser accordingly tribunal accept real chance serious harm real risk serious harm arising conversion practice christianity sri lanka cb 241 242 85 88 q regard circumstance finding individually cumulatively found box17 face real chance serious harm sri lanka arising family difficulty either wasting money drug alcohol gambling appearance friendship friend association senior officer new claim arising conversion christianity practice christian cb 242 89 r found box17 meet 36 2 aa themigration act cb 242 243 93 95 6 aspect tribunal decision relevant background matter set greater detail hereunder see 20 25 belowlitigation history7 relevant litigation history matter follows stated 1 box17 filed judicial review application melbourne registry court 12 april 2017 b 25 october 2017 consent order made registrar court usual first court date programming order listing matter final hearing judge melbourne registry 5 february 2020 c 30 august 2019 email sent party chamber judge melbourne registry attaching letter adjournment advising proceeding transferred melbourne migration docket ii party notified due course new listing date federal circuit court australia appears matter transferred national migration docket new listing date advised melbourne registry due well known acknowledged significant delay allocating migration judicial review application melbourne registry court judge hearing afp21 v minister immigration citizenship migrant service multicultural affair 2021 fcca 1322at 25 per chief judge alstergren andrajmohan v minister immigration citizenship migrant service multicultural affair 2021 fcca 1556at 7 per judge lucev november 2021 matter transferred perth registry court listed court presently constituted 19 november 2021 direction hearing whereat order made listing matter hearing 3 march 2022 jurisdictional error required8 court may set aside tribunal decision upon judicial review affected jurisdictional error migration act s 474and476 plaintiffs157 2002v commonwealth 2003 hca 2 2003 211 clr 476 2003 77 aljr 454 2003 195 alr 24 2003 72 ald 1 instance tribunal identifies wrong issue b asks wrong question c ignores relevant material relies irrelevant material way tribunal exercise purported exercise power thus affected resulting decision exceeding failure exercise authority power given tribunal themigration act may constitute jurisdictional error minister immigration multicultural affair v yusuf 2001 hca 30 2001 206 clr 323 2001 75 aljr 1105 2001 180 alr 1 2001 62 ald 225 yusuf 82 per mchugh gummow hayne jj recognised category jurisdictional error issue 9 constitute jurisdictional error error must material requisite sense explained inmzapc v minister immigration border protection 2021 hca 17 2021 95 aljr 441 mzapc 2 per kiefel cj gageler keane gleeson jj follows materiality explained inminister immigration border protection v szmta 2019 hca 3 2019 264 clr 421to involve realistic possibility decision fact made could different breach condition occurred existence non existence realistic possibility decision could different explained question fact respect plaintiff application judicial review decision ground jurisdictional error bear onus proof 10 onus upon box17 establish jurisdictional error tribunal decision vaad v minister immigration multicultural indigenous affair 2005 fcafc 117at 45 per hill sundberg stone jj maroun v minister immigration citizenship 2009 fca 1284 2009 112 ald 424 11 court jurisdiction review merit tribunal decision determine box17 claim protection visa minister immigration ethnic affair v wu liang or 1996 hca 6 1996 185 clr 259 1996 70 aljr 568 1996 136 alr 481 1996 41 ald 1 wu liang clr 272 per brennan cj toohey mchugh gummow jj ground 112 ground 1 judicial review application follows 1 second respondent tribunal misconstrued applicant evidence failed properly consider claim particularsin applying protection visa applicant claimed fear harm reason including physical appearance mental ill health inability reintegrate sri lankan society cb 96 relevantly decision record delegate first respondent recorded applicant made following claim would receive mental health treatment requires sri lanka doctor sri lanka understand may kill return sri lanka due ostracised society due acne scar andthat may able integrate sri lankan society australia 8 year tribunal 57 decision found among thing applicant psychologist provided letter given department demonstrated would able manage anxiety return sri lanka successfully integrate back society consequently found applicant face real chance serious harm real risk significant harm reason relating physical appearance mental health making finding referred b tribunal misconstrued evidence contained psychologist letter cb 45 psychologist opinion qualified following passage provided maintains skill taught believe able manage anxiety sufficient well enable successfully integrate sri lankan culture would strongly recommend seek mentor counsellor outside family domain sic making finding referred b tribunal made finding whether applicant would able maintain requisite skill find requisite mentor counsellor outside family domain accordance psychologist recommendation consequently tribunal decision affected jurisdictional error box17 submissions13 relation ground 1 box17 submitted misstatement consequent failure deal claim raised applicant constitutes jurisdictional error dranichnikov v minister immigration multicultural affair 2003 hca 26 2003 77 aljr 1088 2003 197 alr 389 2003 73 ald 321 dranichnikov 23 24 per gummow callinan jj similarly decision maker required consider claim integer claim expressly articulated necessarily arise material eva17 v minister immigration border protection 2018 fcafc 214 2018 262 fcr 304 eva17 36 per perry derrington wheelahan jj box17 claimed fear harm reason including physical appearance mental ill health inability reintegrate sri lankan society recorded delegate decision refuse protection visa application cb 96 despite introduced additional claim relating conversion christianity review tribunal earlier claim abandoned box17 point review b tribunal decision cb 235 57 tribunal purported consider aspect claim found real chance real risk serious significant harm box17 reason finding real chance real risk serious significant harm faced box17 sri lanka result tribunal stated applicant psychologist provided letter given department demonstrated would able manage anxiety return sri lanka successfully integrate back society c letter referred tribunal decision cb 235 57 psychologist report cb 45 making finding cb 235 57 tribunal misconstrued content psychologist report opinion expressed psychologist report box17 ability manage mental health condition reintegrate sri lankan society qualified following passage provided maintains skill taught believe able manage anxiety sufficient well enable successfully integrate sri lankan culture would strongly recommend seek mentor counsellor outside family domain tribunal decision demonstrate engagement aspect psychologist report evident tribunal decision made finding whether box17 would able maintain requisite skill find requisite mentor counsellor outside family domain accordance recommendation psychologist report court ought find tribunal erred misconstruing aspect box17 evidence therefore failed properly consider claim minister submissions14 submission asserting ground 1 establish jurisdictional error tribunal decision minister submitted box17 claimed mental health diminished acne scar face would receive mental health treatment need sri lanka doctor sri lanka would understand may kill returned sri lanka due ostracised society due acne scar cb 34 36 95 box17 elaborate claim statutory declaration provided tribunal cb 143 144 b tribunal squarely dealt claim concerning box17 appearance cb 228 19 20 234 235 55 56 tribunal accept box17 would face real chance real risk serious significant harm found could live freely work sri lanka despite concern appearance would ostracised discriminated reason cb 234 235 55 56 finding open reason gave c tribunal finding cb 235 57 concerned box17 mental health broadly respect anxiety reference psychologist report unsurprising circumstance psychologist report directed towards psychologist session box17 manage reduce anxiety significantly psychologist report also note box17 fear concern physical appearance addressed cognitive behaviour therapy cb 45 considering corroborative material tribunal obliged refute line line relevant material minister immigration multicultural affair ex parte durairajasingham 2000 hca 1 2000 74 aljr 405 2000 168 alr 407 2000 58 ald 609at 67 per mchugh j tribunal required expressly refer every individual piece evidence provided applicant make finding regarding piece evidence yusufat 67 68 73 74 77 89 91 per mchugh gummow hayne jj e case tribunal clearly considered psychologist report expressly referring cb 235 57 simply inference available content overlooked misunderstood tribunal required expressly refer reject reason psychologist belief box17 would able manage anxiety enable successful reintegration sri lankan culture provided maintained skill taught circumstance recommendation engage mentor counsellor particularly box17 made claim would unable maintain skill taught could access mentor counsellor return contrary box17 suggested delegate mental health improved see cb 99 tribunal dealt claim box17 claimed fear harm return account mental health physical appearance error revealed consideration ground 115 well established failure consider integer applicant claim may constitute jurisdictional error claim relates mandatorily relevant criterion themigration act dranichnikovat 24 25 per gummow callinan jj htun v minister immigration multicultural affair 2001 fca 1802 2001 233 fcr 136 2001 194 alr 244 htun 42 per allsop j ludgero v minister immigration citizenship migrant service multicultural affair 2021 fcca 1060 2021 358 flr 215at 47 50 per judge lucev inhtunat 42 per allsop j said make decision without considered claim fail complete exercise jurisdiction embarked 16 full court federal court insingh v minister home affair 2019 fcafc 3 2019 267 fcr 200 singh full court 34 per reef callaghan thawley jj observed follows tribunal charged review may commit jurisdictional error failing exercise jurisdiction contemplated would exercise example engage active intellectual process give proper genuine realistic consideration substantial clearly articulated argument relying upon established fact see dranichnikov v minister immigration multicultural affair 2003 197 alr 389 24 per gummow callinan jj hayne j agreed claim raised evidence contention resolved one way would could dispositive review see nabe v minister immigration multicultural indigenous affair 2 2004 fcafc 263 2004 144 fcr 1at 63 per black cj french selway jj os matter essential integer applicant claim would dispositive review see eta067 v republic nauru 2018 hca 46 2018 360 alr 228at 14 per bell keane gordon jj 17 tribunal required engage active intellectual process directed claim criterion lafu v minister immigration citizenship 2009 fcafc 140 2009 112 ald 1 lafu 45 46 per lindgren rares foster jj court infer failure consider claim tribunal expressly mention claim tribunal decision must read reason tribunal decision whole inference ought readily drawn reasoning tribunal decision otherwise comprehensive issue least identified point applicantwaee v minister immigration multicultural indigenous affair 2003 fcafc 184 2003 236 fcr 593 2003 75 ald 630 waee 47 per french sackville hely jj may unnecessary make finding particular matter subsumed finding greater generality waeeat 47 per french sackville hely jj 18 ineva17at 36 per perry derrington wheelahan jj full court federal court observed follows undoubtedly failure consider relevant component integer claim may appropriate circumstance constitute jurisdictional error bzafb v minister immigration border protection 2018 fca 995at 9 per flick j necessarily decision maker also required consider claim integer thereof expressly articulated necessarily arise material nabe v minister immigration multicultural indigenous affair 2 2004 fcafc 263 2004 144 fcr 1at 61 inapplicant waee v minister immigration multicultural indigenous affair 2003 fcafc 184 2003 236 fcr 593at 46 47 french sackville hely jj held 46 plainly necessary tribunal refer every piece evidence every contention made applicant written reason may evidence irrelevant criterion contention misconceived moreover distinction tribunal failing advert evidence accepted might led make different finding fact cfminister immigration multicultural affair v yusuf 2001 hca 30 2001 206 clr 323 62 ald 225 180 alr 1at 87 97 failure tribunal address contention accepted might establish applicant well founded fear persecution convention reason tribunal court administrative body operating environment requires expeditious determination high volume application application decides course great importance decision may literally life death decision applicant nevertheless administrative body court reason scrutinised eye keenly attuned error necessarily required provide reason kind might expected court law 47 inference tribunal failed consider issue may drawn failure expressly deal issue reason inference readily drawn reason otherwise comprehensive issue least identified point may unnecessary make finding particular matter subsumed finding greater generality factual premise upon contention rest rejected however issue raised evidence advanced behalf applicant contention made applicant issue resolved one way would dispositive tribunal review delegate decision failure deal published reason may raise strong inference overlooked factual material19 central claim made box17 psychologist report psychologist report appears cb 45 provides follows psychologist name qualification registration detail omitted client box17 29 year old male sri lankan resident australia student graduate six year seeing box17 sporadically last eighteen month originally presented moderately depressed high level anxiety initially living car anxious gambling habit time also using alcohol smoking cigarette initial session used provide method managing reducing anxiety also provided support reducing substance abuse meditation bio feedback training used improved significantly depression anxiety reduced mild moderate respectively point visit underlying contributor anxiety depression began emerge pressure feeling financial indebtedness due gambling consequent distortion relationship family back sri lanka spent money sent tuition fee repayment debt stress dealing australian immigration authority relation visa would enable gain work experience graduating degree compounded lack cognitive clarity due pre existing anxiety contacted break eight month effort help deal immediate level distress hi effort gain visa succeeded began clear cause anxiety reality return sri lanka six year away felt would difficult integrate sri lankan culture fear family place substantial emotional psychological pressure additionally concern physical appearance fear concern addressed cognitive behaviour therapy intention prepare deal issue confronted return sri lanka provided maintains skill taught believe able manage anxiety sufficient sic well enable successfully integrate sri lankan culture would strongly recommend seek mentor counsellor outside family domain box17 survivor successfully completed tertiary study foreign country sought help distress managed find way forward psychologist name omitted 20 psychologist report accompanied letter psychologist concerned dated 29 april 2013 appearing cb 44 said dear box17 report requested wish well return sri lanka thank opportunity work hope value future life always skype skype handle omitted sincerely psychologist name omitted 21 april 2015 delegate decision cb 96 delegate summarised box17 claim including claim significant number acne scar face prevent associating friend family community resulting diminished level mental health fear receive mental health treatment requires sri lanka doctor sri lanka understand 22 letter support dated 23 november 2016 homework l2p program coordinator south east community link melbourne appearing cb 147 indicated box17 current volunteer mentor young people migrant background learning drive box17 dedicated volunteer supporting program great enthusiasm passion received positive feedback box17 learner regarding mentor support formed strong healthy mentor learner relationship time box17 resourceful mentor enhancing learner driving skill well assisting social interpersonal skill includes remaining calm composed difficult challenging situation wonderful box17 l2p program given cultural awareness able gain strong rapport young people especially migrant refugee background box17 provides excellent role model many positive role model life reinforces importance community work volunteering inspiration learner broader community 23 post tribunal hearing submission made 10 march 2017 pastor appeared witness box17 tribunal hearing set material relation persecution christian buddhist sri lanka possibility box17 risk family friend returned sri lanka pastor also observed cb 167 reproduced unaltered concern previous mental health issue anxiety depression including suicide risk effect stress move back sri lanka 24 tribunal decision 24 march 2017 cb 228 19 20 tribunal said follows 19 applicant made following claim application left sri lanka study brother financing bad habit australia gambling drinking smoking borrow much brother really angry applicant tried hit belief brother kill upset brother powerful connected politician father let go home work experience find hard get work many hotel near family home friend family reject difficulty community facial appearance caused acne scar may kill face condition ostracised hard go back much time australia bad mental health condition get good treatment sri lanka doctor would understand 20 applicant provided psychological report april 2013 saw psychologist assist reducing anxiety substance abuse alcohol concern reintegrating sri lankan society however psychologist belief would able manage anxiety sufficiently well successfully integrate sri lankan culture psychologist wished well return sri lanka also provided business card name omitted counselling centre applicant claim attended mental health treatment twelve fifteen occasion footnote omitted b cb 229 25 tribunal said follows delegate considered applicant claim arising family relationship including debt potential continue family business friendship name omitted name omitted mental health issue reintegration concern delegate noted delay lodging protection visa application delegate noted applicant returned sri lanka two occasion delegate determined applicant owed protection obligation c cb 229 28 tribunal referred post tribunal hearing submission concerning box17 conversion christianity context coming strict buddhist family indication information concerning buddhist hostility christian sri lanka tribunal said follows thought returning sri lanka cause stress applicant submission noted applicant made significant contribution community including sri lankan background broadly cb 234 235 55 57 tribunal said follows 55 applicant also raised issue appearance face visibly affected acne blemish applicant expressed concern regarding would treated appearance applicant noted problem sri lanka occasionally people would comment upon making joke saw plastic surgeon return sri lanka told nothing could done applicant stated receive comment community australia tribunal confirmed worked sri lanka prior coming australia appearance 56 tribunal sympathetic applicant desire spoken rudely joking manner appearance however tribunal consider spoken manner claimed constitutes serious significant harm defined 91r 2 36 2a act tribunal considered whether applicant appearance may cause discriminated return sri lanka tribunal accept applicant discriminated ostracised community appearance return sri lanka tribunal note applicant come australia completed number relevant qualification australia cookery hospitality management business provides suite skill would able use return sri lanka tribunal considers applicant appearance stop gaining employment field given qualification qualification reason applicant coming australia first place applicant even concern appearance came australia gain qualification first instance tribunal considers applicant able live freely work chooses sri lanka despite concern appearance ostracised discriminated reason tribunal accept applicant harm appearance tribunal find applicant face real chance serious harm real risk significant harm reason 57 tribunal considered applicant health concern broadly tribunal note applicant psychologist provided letter given department demonstrated would able manage anxiety return sri lanka successfully integrate back society tribunal considers applicant real chance serious harm real risk significant harm reason footnote omitted e tribunal dealt claim made box17 concerning risk posed return sri lanka conversion christianity whilst australia tribunal discussed issue accommodation employment tourism hospitality industry existence suitable christian community box17 join particularly area tourism hospitality industry might afford employment noted box17 skill assist dealing anxiety issue detailed psychologist cb 237 238 70 f cb 242 91 context possible ministerial referral tribunal said follows applicant supporter provided information detailing applicant involvement local community applicant appears popular active member syndal baptist church surrounding outreach activity applicant action community commended letter pastor name omitted name omitted south east community link detail contribution made area last year applicant australia extended period since 2006 made strong connection community period waywardness information would demonstrate experience become catalyst assist vulnerable people community particular migrant background whether claim made25 court view tribunal set claim made box17 factual material relevant claim summary provided psychologist report cb 235 57 said relation psychologist report cb 237 238 70 inaccurate rendering passage demonstrate tribunal considered issue box17 would cope upon return sri lanka whether could reintegrate sri lankan society part thereof ground 1 advanced behalf box17 argues tribunal needed go consider alleged claim whether order cope upon return sri lanka box17 would able first maintain skill taught psychologist second find requisite mentor counsellor outside family domain assist 26 substantial clearly articulated argument relying upon established fact suggest box17 would maintain skill able find event needed requisite mentor counsellor assist actual claim box17 would maintain skill able find mentor counsellor assist term psychologist report short single page posit claim suggestion evidence box17 would maintain skill able find mentor counsellor assist despite plethora material subsequently submitted tribunal pre post tribunal hearing concerning variety matter particular possibility box17 might persecuted buddhist sri lanka consequence conversion christianity nowhere material make claim suggest provide evidence upon return sri lanka box17 would maintain skill able find mentor counsellor assist 27 follows court view claim box17 would maintain skill able find mentor counsellor assist made claim inferred material tribunal set evidence material tribunal suggest box17 would maintain skill able find mentor counsellor assist contention seems put tribunal thus even claim made evidence material tribunal would enabled made 28 claim made upon return sri lanka box17 might suffer anxiety depression claimed associated consequence plainly set tribunal cb 228 19 20 229 25 28 dealt tribunal reference amongst thing substance single page psychologist report cb 234 235 55 57 cb 237 238 70 plain tribunal read single page psychologist report unnecessary tribunal set quote content waeeat 46 per french sackville hely jj failure tribunal appreciate nature box17 claim contrasteva17at 39 per perry derrington wheelahan jj 29 follows ground 1 therefore made establish jurisdictional error tribunal decision conclusion orders30 court concluded ground 1 made establish jurisdictional error tribunal decision follows amended judicial review application must dismissed order accordingly 31 court hear party cost certify preceding thirty one 31 numbered paragraph true copy reason judgment judge lucev associate dated 29 april 2022
Gonzalez Gonzalez (Migration) [2021] AATA 4860 (16 September 2021).txt	gonzalez gonzalez migration 2021 aata 4860 16 september 2021 last updated 6 january 2022gonzalez gonzalez migration 2021 aata 4860 16 september 2021 decision recorddivision migration refugee divisionapplicant mr edson daniel gonzalez gonzalezcase number 2014655home affair reference bcc2020 1802087member antoinette younesdate 16 september 2021place decision sydneydecision tribunal affirms decision cancel applicant subclass 500 student visa statement made 16 september 2021 10 55 amcatchwordsmigration cancellation student temporary class tu visa subclass 500 student ground cancellation convicted offence supply prohibited drug consideration discretion compelling reason stay completion study degree hardship circumstance giving rise non compliance serious offending conduct decision review affirmedlegislationmigration act 1958 cth 116migration regulation 1994 cth r 2 43casesgong v minister immigration border protection 2016 fcca 561leota v minister immigration citizenship migrant service multicultural affair 2020 fca 1120minister immigration multicultural affair v srt 1999 fca 1197 1999 91 fcr 234statement decision reasonsapplication review1 application review decision dated 23 september 2020 made delegate minister home affair cancel applicant subclass 500 student visa unders 116of themigration act 1958 act 2 delegate cancelled visa unders 116 1 g applicant convicted offence nsw issue present case whether ground cancellation made whether visa cancelled 3 theapplicant appeared tribunal 9 september 2021 give evidence present argument 4 applicant represented relation review registered migration agent 5 following reason tribunal concluded decision cancel applicant visa beaffirmed consideration claim evidence6 unders 116of act minister may cancel visa satisfied certain ground specified provision made relevantly case include ground set in 116 1 g satisfied ground cancellation made decision maker must proceed consider whether visa cancelled regard relevant circumstance may include matter government policy ground cancellation exist section 116 1 g prescribed ground7 visa may cancelled unders 116 1 g minister satisfied prescribed ground cancelling visa applies applicant prescribed ground cancellation set reg 2 43 themigration regulation 1994 regulation present case ground reg 2 43 1 oa relevant 8 section 116provides 1 subject subsection 2 3 minister may cancel visa satisfied g prescribed ground cancelling visa applies holder 9 prescribed ground cancellation unders 116 1 g found reg 2 43 1 oa regulation provides 1 purpose paragraph 116 1 g act deal circumstance minister may cancel visa ground prescribed following oa case holder temporary visa subclass 050 bridging general visa subclass 051 bridging protection visa applicant visa subclass 444 special category visa minister satisfied holder convicted offence law commonwealth state territory whether holder held visa time conviction regardless penalty imposed 10 first hearing tribunal discussed applicant information contained delegate decision record copy applicant provided tribunal 11 delegate decision record indicates department received information australian criminal intelligence commission indicating 15 may 2020 applicant convicted downing centre local court nsw offence supply prohibited drug indictable commercial quantity t1andsupply prohibited drug small indictable quantity t1 12 information indicates court imposed following penalty intensive correction order period 9 month commencing 15 may 2020 concluding 14 february 2021 supervision 9 month commencing 15 may 2020 concluding 14 february 2021 supervised community correction service community service work 50 hour fine 1 000 community correction order 2 year commencing 15 may 2020 concluding 14 may 2022 supervision 2 year commencing 15 may 2020 concluding 14 may 2022 supervised community correction service notice intention consider cancellation noicc notice response13 4 september 2020 department sent applicant noicc based conviction suggested 116 1 g enlivened 14 10 september 2020 applicant responded noicc follows acknowledges seriousness conduct court impose custodial sentence applicant person excellent character prior conviction applicant former employer attests good character behaviour grossly character attributable anxiety depression period leading offence applicant struggling increased stress depression causing act recklessly anxiety depression due pressure performing well study applicant worked hard saved money education marketing communication sydney cooperative arrested police surrendered illicit drug voluntarily apologetically section 501 6 c theactstates person meet character test person good character regard past present criminal general conduct section 501 6 act provides person pas character test significant risk would suffer significant financial emotional psychological hardship mexico present significant risk term covid 19 mexico rank number world active case 15 applicant provided document support department tribunal including submission former employer reference letter applicant cv article relating covid 19 pandemic mexico 16 hearing applicant agreed convicted sentenced outlined tribunal referred submission relating 501 explained applicant visa cancelled 116 1 g 501 tribunal indicated tribunal must accept finding court conviction indicate ground cancellation appears exist 17 tribunal advised applicant tribunal considered offence serious applicant apologised behaviour said aware consequence 18 dispute applicant convicted offence law nsw therefore 116 1 g enlivened prescribed ground cancelling applicant visa contemplated reg 2 43 1 oa 19 reason tribunal satisfied ground cancellation 116 1 g exists ground require mandatory cancellation 116 3 tribunal must proceed consider whether visa cancelled consideration discretion20 matter specified act regulation must considered exercise discretion tribunal regard circumstance case including matter raised applicant matter department procedure advice manual pam3 general visa cancellation power purpose visa holder travel stay australia whether visa holder compelling need travel remain australia21 applicant granted student visa enable undertake study australia came australia stated main purpose obtaining education english speaking country enhance career prospect mexico applicant bachelor business marketing mexico came australia pursue marketing communication study 22 applicant gave evidence supported information delegate decision record based provider registration international student management system prism currently enrolled macquarie education group studying certificate iv marketing communication leading diploma applicant gave evidence 4 term course third term indicated would like undertake study diploma advanced diploma marketing communication order improve prospect employment mexico 23 submission tribunal contended applicant fully complaint visa condition weight given applicant purpose stay australia applicant intention study australia go beyond initial course enrolment student visa uncommon student australia hold successive student visa order complete intended education plan 24 tribunal accepts applicant travelled australia undertake study marketing communication completed several unit consistent purpose travelling australia tribunal accepts applicant staying australia want complete study compelling reason stay australia 25 tribunal give weight consideration favour applicant extent compliance visa conditions26 evidence breach visa condition tribunal view compliance visa condition legitimate expectation tribunal give neutral weight consideration degree hardship may caused financial psychological emotional hardship 27 applicant 35 year old single child partner parent brother live mexico submission noted applicant formed friendship relationship considers significant 28 tribunal asked applicant claimed depression anxiety applicant stated talking doctor mexico also friend said intends seek person assistance health practitioner australia lockdown due covid 19 resolved submission noted applicant made personal commitment improving mental health sentencing sufficient deterrent respect risk applicant reoffending tribunal find hard accept applicant claimed commitment improving mental health evidence person assistance sought due covid 19 restriction although understandable explain sought assistance health care provider via telephone mean covid 19 restriction nsw 29 submission relating risk relevant s 501 116 1 e cancellation nevertheless address claim tribunal observes term risk subject judicial consideration mostly relation s 501 116 1 e ingong v minister immigration border protection 1 judge smith held provision require solid certain foundation cancellation power arise decision cancel based legally reasonable inference 41 inleota v minister immigration citizenship migrant service multicultural affair 2 courtobserved concept risk element futurity reliance past offending alone may sufficient justify cancellation visa department procedural guideline concerning visa cancellation 116 1 e reiterate term risk defined act nature speculative uncertain 30 tribunal observes applicant committed serious drug related offence whilst holder temporary visa within year arrival australia tribunal view plausible risk offending despite contention among thing sentencing sufficient deterrent respect risk reoffending sentencing deterrent case 31 submission contended able complete study would cause applicant significant hardship need considered context obtaining qualification english speaking country australia submitted situation covid 19 mexico pose heath employment hardship situation nsw regarding covid 19 worsened recently tribunal give weight applicant favour far situation regarding covid 19 mexico concerned 32 tribunal acknowledges cancellation applicant visa potential cause applicant worsening mental health issue could result hardship including psychological financial employment emotional tribunal accepts cancellation would disrupt applicant study australia might challenge applicant able complete study another english speaking country outside australia 33 tribunal give weight consideration applicant favour circumstance ground cancellation arose cancellation considered relationship breakdown whether relationship broken result family violence guideline indicate general rule visa cancelled circumstance ground cancellation arose beyond visa holder control34 circumstance cancellation arose result applicant convicted several offence outlined tribunal take view offence serious 35 applicant acknowledged seriousness offending apologised conduct contended prior conviction person excellent character behaviour grossly character attributable anxiety depression cooperated police pose risk offending applicant noted former employer attests good character course hearing tribunal asked applicant confirmed former employer provided refence letter aware conviction mean tribunal place limited weight letter submitted period leading offence applicant struggling increased stress depression causing act recklessly anxiety depression due pressure performing well study 36 tribunal noted applicant explanation plausible applicant stressed depressed without intending harsh persuasive however contend applicant acted recklessly result tribunal accepts evidence prior conviction applicant convicted drug offence tribunal considers serious 37 mentioned earlier submission relating risk relevant s 501 116 1 e specifically whether power cancel enlivened case visa cancelled 116 1 g court finding applicant committed offence charged court imposed sentence court considered appropriate open tribunal go beyond finding court inminister immigration multicultural affairsvsrt 1999 fca 1197 1999 91 fcr 234 full federal court held conviction sentence imposed result conviction matter criminal law procedure review administrative tribunal honour branson lindgren emmett held 45 impugn sentencing process way bad matter public policy improbable legislature intended administrative tribunal wide investigatorial power bound rule evidence free inform source review essential factual base conviction resulting sentence policy must conviction sentence imposed result conviction matter criminal law procedure sentence like conviction otherwise accordance law right appeal available remedy miscarriage justice new fresh evidence come hand criminal procedure availed 46 stand conviction sentence must conclusive far least concern tribunal reviewing decision take conviction sentence starting point 38 although explanation applicant conduct tribunal satisfied applicant behaviour beyond control moreover open tribunal critically evaluate question conclusion finding court tribunal must accept finding conclusion tribunal view reasonable assume court took relevant matter account 39 tribunal considers applicant offending conduct serious 40 tribunal give significant weight consideration favour cancellation past present behaviour visa holder towards department41 applicant responded matter raised noicc 42 tribunal give aspect weight favour applicant whether would consequential cancellation 14043 evidence consequential cancellation 140 44 tribunal give consideration weight favour cancellation whether mandatory legal consequence whether cancellation would result visa holder unlawful liable detention removal whether detention possible consequence cancellation long whether provision act prevent person making valid visa application without minister intervention45 cancellation applicant visa could result applicant detention potential removal australia applicant would also impacted 48 act mean could face difficulty applying certain visa australia also subject pic 4013 46 submission contended apunitiveelement cancellation contrary doctrine double jeopardy tribunal view although potential adverse consequence visa cancellation scheme intended punitive intended among thing maintain integrity migration program ensure visa holder comply australia law legitimate expectation moreover cancellation visa entirely different process criminal justice system difficult see double jeopardy relevant case 47 tribunal considers applicant case potential detention removal australia impact 48 pic 4013 bar intended legislative consequence 48 tribunal give consideration neutral weight whether international obligation including non refoulement family unity best interest child primary consideration would breached result cancellation49 evidence tribunal case cancellation would breach australia international obligation including non refoulement 50 tribunal give aspect neutral weight permanent visa whether former visa holder strong family business tie australia51 student visa permanent visa tribunal dealt applicant circumstance separate consideration relevant matters52 applicant made submission essentially contending delegate failed consider relevant matter give consideration appropriate weight tribunal note submission although tribunal give regard delegate assessment bound tribunal independent must reach conclusion based assessment 53 relevant matter concluding remarks54 tribunal carefully considered material independently cumulatively tribunal satisfied balance consideration favourable cancellation outweigh favour applicant consideration favourable applicant relate circumstance degree hardship personal consequence outweigh favour cancellation applicant committed serious offence whilst holder temporary visa within year arrival australia 55 considering circumstance tribunal concludes visa cancelled decision56 tribunal affirms decision cancel applicant subclass 500 student visa antoinette younessenior member 1 gong v minister immigration border protection 2016 fcca 561 2 leota v minister immigration citizenship migrant service multicultural affair 2020 fca 11205 august 2020
Kvaerner Oil and Gas Australia Pty Limited v Egis Consulting Australia Limited [2003] NSWSC 36 (12 February 2003).txt	kvaerner oil gas australia pty limited v egis consulting australia limited 2003 nswsc 36 12 february 2003 last updated 25 february 2003new south wale supreme courtcitation kvaerner oil gas australia pty limited v egis consulting australia limited 2003 nswsc 36current jurisdiction equity divisionfile number 50136 00hearing date 3 02 03 4 02 03 5 02 03judgment date 12 02 2003parties kvaerner oil gas australia pty limited plaintiff egis consulting australia limited defendant storebrand skadeforsikring second cross defendant judgment einstein jlower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel mr b cole qc mr ashhurst plaintiff second cross defendant mr c gee qc mr n j kidd defendant solicitor michael samios plaintiff second cross defendant colin biggers paisley defendant catchword joint ventureliability third partyjoint venture agreement entered plaintiff defendantproceedings brought joint venture victoria third partycounterclaim brought joint venture third partydefendant assigned benefit counterclaim plaintiffproceedings victoria settledprinciples contributionconstruction joint venture agreementwhether defendant liable contribute 50 per cent settlement sumwhether liability joint venture caused plaintiffwhether settlement counterclaim used set joint venture liabilityacts cited trade practice act 1974 nsw decision short minute order brought injudgment supreme courtof new south walesequity divisioncommercial listeinstein j12 february 200350136 00 kvaerner oil gas australia pty limited v egis consulting australia limited anorjudgmentthe joint venture agreement1 proceeding concern joint venture agreement entered plaintiff kvaerner oil gas australia pty ltd kvaerner defendant egis consulting australia pty ltd egis joint venture agreement entered purpose providing consulting engineering managerial service relation construction onshore offshore pipeline supporting facility within australia 2 joint venture agreement constituted deed dated 3 february 1986 first joint venture deed deed dated 15 march 1991 second joint venture deed deed dated 15 june 1994 termination deed first joint venture agreement three year period period extended five year second joint venture agreement termination deed terminated joint venture convenient course append first joint venture deed judgment appendix kvaerner3 kvaerner australian arm large norwegian based group company kvaerner group operates throughout europe america asia middle east specializes shipbuilding oil gas exploration production contracting worldwide 4 kvaerner time first joint venture agreement known r j brown associate australia pty ltd time second joint venture agreement become kvaerner oil rj brown associate pty ltd egis5 egis time first second joint venture agreement known crook michell peacock stewart pty ltd time termination deed become known cmps f pty ltd contract john holland construction engineering6 common ground pursuant joint venture agreement kvaerner egis joint venturer entered various contract john holland construction engineering pty ltd john holland respect design construction pipeline supporting facility woodside petroleum wanea cossack project situated approximately 125 km offshore north west dampier western australia part north west shelf gas project contract entailed detailed design procurement fabrication delivery mechanical process skid floating production storage loading vessel including pre bid agreement 1 september 1993 design agreement 4 february 1994 pre bid service carried march 1993 august 1993 7 woodside offshore petroleum pty limited woodside offshore company delegated operator acting behalf joint venturer north west shelf gas project woodside offshore entered consultancy agreement john holland 5 april 1993 pursuant john holland perform definition phase engineering service develop subject oil field use floating production storage loading facility 8 definition phase engineering form basis detailed design procurement application process facility 9 joint venture provided john holland definition phase engineering design engineering service pre bid service 13 week pre tender period john holland woodside offshore agreement request john holland 10 approximately 2 july 1993 john holland submitted tender project woodside petroleum amount 51 332 395 tender accepted approximately 8 october 1993 11 joint venture asserted pre bid agreement entered upon common assumption term pre bid agreement require joint venture provide john holland additional information provided prior 1 september 1993 clause 4 pre bid agreement expressed retrospective effect 5 april 1993 time john holland joint venture first began collaborate purpose project 12 joint venture request john holland provided design engineering service facility john holland december 1994 dispute john holland13 dispute john holland joint venture constituted agreement pursuant design service would provided 14 john holland brought proceeding kvaerner egis joint venturer unincorporated joint venture supreme court victoria proceeding 6844 1995 victorian proceeding john holland claimed joint venture negligently carried preliminary engineering john holland tender price based lower would preliminary engineering accurately reflected necessary detailed design procurement fabrication delivery process facility alleged reason negligence joint venture john holland become contractually bound carry project inadequate price 15 proceeding john holland made various claim joint venture including claim damage breach pre bid agreement design agreement adjustment lump sum design agreement account negative variation damage alleged breach duty care said owed joint venture john holland damage alleged misleading deceptive conduct joint venture said breach thetrade practice act damage alleged negligent misstatement interest nature damage detail ultimate allegation set amended statement claim exhibit px vol 5 tab 154 progress litigation settlement reached16 joint venture defended claim john holland initially represented marshall mark kennedy joint venture member apparently became concerned defence mounted firm joint venture partner agreed legal representation joint venture changed kvaerner wished use mallesons stephen jaques mallesons egis wished use ebsworth ebsworth 17 cost marshall mark kennedy apparently paid equally behalf kvaerner egis 18 kvaerner insisted mallesons briefed represent joint venture proceeding egis eventually object 19 mallesons proceeded represent joint venture proceeding generally relation defence primary claim well relation joint venture fee claim john holland outstanding fee 3 300 748 39 latter claim agreed joint venture partner claim would pursued kvaerner sole risk including cost basis proceeds received would sole benefit kvaerner 20 mallesons rendered fee defence victorian proceeding sum 1 960 806 93 paid progressive basis 21 proceeding brought john holland settled 30 may 1997 following mediation conducted sir laurence street agreement reached joint venture member mediation settlement money would paid joint venture agree settle claim john holland egis agreeing ultimate settlement figure 3 745 000 reasonable figure 22 dispute arose mediation john holland kvaerner whether offer made john holland prior mediation pay sum 1 2 million satisfaction fee claim still foot dispute subject litigation subsequently resolved kvaerner agreeing accept sum 1 million fee claim 23 joint venture liability john holland discharged payment progressively john holland totalling 2 745 million comprising 2 245 million mallesons trust account 500 000 kvaerner net amount liability joint venture john holland setting entitlement joint venture paid 1 million john holland 24 kvaerner insurer storebrand 3 july 1997 remitted sum 3 745 million mallesons trust account 3 july 1997 mallesons sent trust account cheque 2 245 million solicitor john holland difference amount paid solicitor john holland settlement figure 1 5 million sum represented amount kvaerner claimed value counterclaim agreed john holland 25 dispute whether counterclaim settled amount alleged kvaerner resulted kvaerner paying john holland 500 000 disputed 1 5 millionthe present proceedings26 present proceeding concern right liability kvaerner egis flowing relation payment made settlement proceeding kvaerner claim settlement proceedingsitpaid sum 3 745 000 john holland behalf kvaerner egis defending settling proceeding brought john holland kvaerner claim paid liable pay 1960 806 93 behalf kvaerner egis term john holland money used summons second cross claim refer sum 27 explained kvaerner overview preliminary submission alleges payment 3 745 million john holland 2 245 million 3 july 1997 500 000 17 march 1998 1 million allocated kvaerner counterclaim legal expense 1 960 806 93 incurred defending claim constitute liability expense joint venture kvaerner contends therefore egis liable half sum pleadingsthe stance taken egis28 egis pleaded following matter many either overlap put alternative defence first cross claim kvaerner oil denial payment said made kvaerner oil29 egis denies kvaerner paid john holland sum 3 745 000 00 settlement john holland proceeding identity payer30 egis claim relevant payment made settlement john holland proceeding made storebrand norwegian insurance company pursuant insurance policy 842 3873 issued 10 june 1993 policybothparties joint venture said indemnified consequence egis claim avoid circuity action summons requires dismissed amount liability31 egis denies joint venture liability john holland sum 3 745 000 00 asserts relevant liability joint venture john holland sum 2 745 000 00 said thenetamount liability joint venture john holland setting entitlement joint venture paid 1 000 000 00 john hollandconstruction issues32 egis make series claim often overlapping put alternative rely upon proper construction consequential application joint venture agreement egis claim upon proper construction joint venture agreement money paid john holland john holland money constitute loss within article ix joint venture agreement egis claim proper construction joint venture agreement possible determine liability contribute 50 amount towards payment john holland money without first determining whether liability joint venture pay john holland money caused conduct plaintiff staff employee agent contractors33 claim made egis joint venture liability john holland caused conduct kvaerner staff employee agent contractor 34 alternatively conduct said constituted either breach article xi joint venture agreement fallen article xx agreement 35 proposition put egis effect material provision joint venture agreement namely article ii e xii b c e xi b xx kvaerner egis joint venture liability damage cost caused conduct kvaerner staff employee agent contractor kvaerner egis remains liable satisfy liability extent egis contribute joint venture satisfaction liability egis entitled indemnified carver damage tantamount indemnity hence claim liability kvaerner john holland money alternatively claim entitled set reason matter referred cross claim kvaerner express term36 issue pleading express term joint venture agreement loss incurred sustained performance joint venture contract agreement entered joint venture borne equally kvaerner egis issue arose proper construction word loss regard first cross claim37 egis cross claim kvaerner relying initially upon allegation joint venture liability john holland caused conduct kvaerner staff employee agent contractor relying upon allegation conduct constituted breach article xi joint venture agreement constituted conduct falling article xx agreement 38 claim extent egis liable contribute 50 amount satisfy liability joint venture john holland money egis entitled indemnified kvaerner damage tantamount indemnity failure renew joint professional indemnity insurance policy september 199439 claim pleaded relied upon allegation kvaerner failed agree renewal joint venture joint professional indemnity insurance policy respect joint venture activity result failure policy renewed 40 claim pleaded asserted including september 1994 joint venture held policy september 1994 egis requested carver agree renewal policy kvaerner refused agree result policy renewed 41 allegation september 1994 kvaerner aware circumstance might give rise claim policy failed disclose circumstance either court joint venture insurer advised egis circumstance existed 42 allegation result joint venture policy respond john holland claim made 43 submission addressed egis support claim therefore regarded litigated second cross claim44 egis failed second cross claim determined judgment delivered ex tempore 4 march 2003 determined separate question concerning proper construction storebrand policy judgment summarises content cross claim submission egis45 overview submission egis serve expand flesh case submission inter alia include following construction joint venture agreement approaching question proper interpretation joint venture agreement important principle whole instrument considered kvaerner egis wish enter relationship partnership principal agent article xx instead party agreed associate joint venture article iii joint venture agreement essentially recorded coming together business competitor purpose pursing profit making activity jointly much maintaining separate business activity party outside scope joint venture class work undertaken joint venture defined limited article iii work covered agreement principle limited activity relating oil gas offshore pipeline express agreement joint venture seek enter construction contract work falling within class defined described scope work work defined regarded scope work although association way joint venture party characteristic partnership party pain provide expressly partnership relationship equally clearly association purpose work relatively limited character question party embarking range activity would devote entire effort normal partnership contrary independence indeed separateness contracting party evident reading joint venture agreement whole limited character joint venture separate capacity partner continue carry work covered agreement particularly evident article v party careful enter relationship partnership scope agreement work together relatively speaking limited became necessary make explicit provision contribution capital distribution profit loss matter dealt article vii viii ix x article vii called equal contribution operating capital requirement joint venture article viii provided application income joint venture meet operating cost particularly amount payable either party service provided equal distribution net profit correspondingly loss incurred borne equally party result performance contract entered joint venture article ix article x provides asset joint venture regarded owned party equal share tenant common article made necessary determination party regard partner provide equality capital contribution profit sharing loss bearing might provided capital contribution profit loss sharing proportion equality article ix dealing loss plainly provision deal situation might arise application income joint venture pursuant article viii produced surplus distributed pursuant article viii b deficit nothing article dealt intended deal question legal liability might arise either joint venture contract operation law problem liability inter se dealt joint venture agreement separately differently equality provided article vii x starting point party covenanted perform reasonable care skill work carried benefit purpose joint venture contract agreement entered joint venture third party provide staff joint venture relating area expertise article xi party agreed appropriate specialised work would assigned one party would faithful article xi b party agreed would required perform service common benefit joint venture article xii neither party permitted seek service joint venture staff purpose article xii b v thus contemplated party would provide special skill joint venture joint venture work would undertaken party regarded special skill field body joint venture staff would created maintained contract entered third party joint venture much contemplated agreement one party would de facto responsible contract although performed equal profit party case jhce consultancy contract work effectively undertaken kvaerner side joint venture plainly circumstance situation could arise liability might fall upon joint venture reason example breach contract breach duty joint venture vi à vi third party concept liability course quite distinct concept profit deficit resulting application income provided pursuant article viii ix may even arise contractually liability problem dealt following provision article xx generaleach party shall indemnify hold party harmless claim liability damage cause action caused result conflict breach contract arising agreement provision inserted expressly deal mutually contemplated possibility one joint venture party undertaking role behalf joint venture might expose joint venture claim breach far party agreeing liability thus created would shared equally expressly provided indemnity guilty party provision clear definite work overall scheme arrangement kvaerner egis discerned agreement entered laid easy see intention party liability shortcoming performance one joint venture party joint venture contract third party borne party responsible liability given party recognised agreement would independent sphere specialisation would appropriate assign work one rather covenanted perform task reasonable care skill make commercial good sense basis reason existence clause e f g article ii becomes plain object clause ensure would blurring boundary liability act omission employee joint venture party attributed party opposed attributing act omission joint venture exception member joint venture staff strictly called guilty relevant act neglect omission case conduct attributed joint venture proper maintaining certain rigidity separation whereby default employee contractor joint venturer attributed party intention clearly party would maintain responsibility conduct employee even engaged joint venture activity provision enabling clear identification attribution responsibility conduct joint venturer employee thus seen practical adjunct provision indemnity position arrived process negative reasoning article ix dealing loss intended cover liability arising breach joint venture obligation would discernible need provision calling indemnity one party attribution employee conduct separate party rather joint venture collectively kvaerner indemnifying joint venture party must hold egis harmless respect liability caused employee kvaerner involved jhce contract acted breach contract breach duty give rise liability right set fee claim payment egis maintains argument liability fail live issue identification exact amount egis might obliged contribute 50 outcome true jhce liability claim settled nominal figure 3 745 million also case joint venture able set right amount 1 million net liability word jhce lower figure e 2 745 million fee claim property joint venture agreement joint venture member proceeds claim kvaerner however joint venture always entitled diminish liability jhce amount 1 million net amount egis required contribute egis obliged pay 50 3 745 million effectively reimbursing kvaerner insurer unistorebrand half amount insurer need pay namely joint venture fee set kvaerner got fee insurer egis obliged contribute half amount submission kvaerner46 approach taken kvaerner may conveniently next set taken directly preliminary submission include inter alia following plaintiff claim plaintiff alleges payment 3 745 million jh 2 245 million 3 july 1997 500 000 17 march 1998 1 000 000 allocated plaintiff counterclaim legal expense 1 960 806 93 incurred defending claim constitute liability expense joint venture plaintiff contends therefore defendant liable half sum liability arises general principle contribution entitlement contribution reflected article ix agreement far letter argument concerned relevant profit loss otherwise distributed accounted defendant concedes claim jh constituted liability joint venture claim liability limited net amount paid jh 3 745 settlement sum le 1 000 000 paid plaintiff counterclaim paragraph 2 b amended defence defendant denies liability loss contemplated article ix defendant contends obligation pay settlement monies jh arose act omission plaintiff staff therefore operation inter alia article ii e xx agreement plaintiff must indemnify defendant liability defendant would otherwise contribute expense plaintiff submits liability joint venture jh like trading expense clearly come within meaning article ix indeed even absence article ix defendant would liable half expense defendant claim expense joint venture net payment made jh ie difference claim counterclaim would correct defendant already assigned interest counterclaim plaintiff way deed 23 september 1996 plaintiff accept construction article xx alleged defendant plaintiff contends article mean act entering joint venture agreement creates conflict interest breach existing contractual arrangement either party party breach conflict must indemnify party damage claim made affected person defendant construction inconsistent operation remainder contract envisages joint venture operating singular commercial entity rather two party continuing operate separately see particular article iv v b x xi ii iii event defendant adduced evidence establishes relevant employee employee plaintiff distinct employee joint venture ii act omission employee breach duty care owed plaintiff defendant jh caused liability jh evidence47 necessary deal certain parameter evidence large fact matter circumstance concerning approach taken joint venturer insurer present common front john holland whilst endeavouring pending due determination fashion victorian litigation reserve right inter se longer issue indeed many matter even issue pleading 48 final address party accepted remaining live disputed factual issue determination concerned claim egis joint venture liability john holland caused conduct kvaerner oil staff employee agent contractor 49 issue survived concerned question analysis construction document like chronology50 chronology provided counsel kvaerner oil convenient course append chronology judgment appendix b although large measure chronology give general landscape may accurate every respect certainly entirely complete however serve give adjectival information relevant event convenient source reference particular document found agreed bundle went evidence exhibit dx dealing proceedingsthe construction issues51 clearly enough proper construction joint venture agreement must take account whole document article xi xx52 view party intended article xi particular special relevance issue litigated article xi ii operative provision term question liability joint venture partner inter se breach cross covenant fully perform perform reasonable care skill promptly diligently work carried either benefit purpose joint venture contract agreement entered joint venture third party activity joint venture may connected 53 question arises whether upon proper construction article xx seen intended provide express indemnity benefit innocent joint venture partner partner breached one cross covenant provided article xi ii mr cole qc submitted behalf egis hardly likely party would intended impose anadditionalcovenant way indemnity conduct one joint venturer wasalreadycompletely contractually liable article xx may noted found distance article xi appears heading general argument raise proper construction article xx appropriate turn matter 54 article xx included following party shall indemnify hold party harmless claim liability damage cause action caused result conflict breach contract arising agreement 55 kvaerner contends provision properly construed essentially concerned circumstance may arise reason party entered joint venture agreement example act entering joint venture agreement might create conflict interest act entering joint venture agreement activity one joint venture partner might breach existing contractual arrangement partner entered joint venture partner performing activity part joint venture may become unable perform contract joint venture partner entered third party56 submission party entering joint venture agreement effectively reordering least certain aspect respective business plainly thought necessary toexpresslyprovide type category liability party content expressly provide way reciprocal indemnification 57 mind cross contention proper construction article xx raise real difficulty mean simple answer mind make clearly differ relation matter 58 course authority word arising agreement similar phrase capable wide construction ibm australia ltd v national distribution service ltd 1991 22 nswlr 466at 475 per kirby p 483 per clarke ja 59 hand may noteworthy article read follows party shall indemnify hold party harmless claim liability damage cause action caused result conflictarising entry contract breach contract 60 given matter careful consideration seem submission put kvaerner proper construction article xx correct word claim c caused result breach contract arising agreement wide indeed seem include claimsgeneratedby contract cfmir brother development pty ltd v atlantic construction pty ltd 1984 1 bcl 80 per samuel ja 83 61 seems party intended article xx confined type circumstance suggested egis construction would necessary precise regard attempt follow egis approach construction point obvious difficulty one endeavouring beprecisein giving article particular limited construction problem may seen example positing possibility articlecouldmean ifthe act entering joint venture agreementcreates conflict interest breach anexistingcontractual arrangement either party party breach conflict situation must indemnify party damage claim made affected person however clearly capable including category innominate 62 ultimately reason given decision construction event appear determine remaining live issue proceeding article ix nature expense joint venture63 event article xi ii shown enlivened seems provision complemented indemnity provided article xx would clearly outflank article ix whilst may liability joint venture john holland matter internal construction article ix unaided adjectival information showing liability arose reason breach article xi covenant regarded different trading expense end matter 64 hence necessity move examine important question fact earlier identified causation issue65 manner egis sought advance submission kvaerner caused joint venture liability john holland particularised document became mfi 3 following term evidence kvaerner caused jv liability holland1 doug robertson time kvaerner employee mcgovern affidavit para 16 48 line 352 doug robertson responsible pre bid preliminary design work supplied jv holland least relation structural steel msj advice prospect 31 october 1996 equates negligence jv negligence doug robertson doc 66 page 282 report expert prof rainey refers jv preliminary design work evidence flawed assumption file named robertson tender input doc 66 page 295 minute meeting 4 november 1996 refer different house kvaerner designer pre bid final design stage doc 67 robertson senior oil gas man mcgovern 47 line 48 mcgovern accepted least possible doug robertson house kvaerner designer pre bid stage 51 line 29 64 line 41 pressed mcgovern evidence substance assumed doug robertson design would checked engineer working specifically pre bid work part qa policy jv 61 line 8 35 msj sought instruction doug robertson assumption made prof rainey report doc 82 page 312 doc 61 page 23 3 february 1994 jv employee became kvaerner employee termination agreement doc 20 mcgovern memo 7 march 1994 doc 14 page 212 cmps f memo mcgovern 17 november 1994 exhibit d1 mcgovern dissent 70 line 434 detail design work produced 3 february 1994 design agreement holland dated 4 february 1994 doc 15 particular breach design agreement sued holland far relate structural steel based drawing issued jv march 94 october 1994 see example schedule a1 asoc page 6 7 8 17 appendix 1a doc 153 5 holland sued jv 13 666m damage breach 4 february 1994 design agreement see asoc page 5 doc 153 6 changed assumption pre bid design detail design structural steel according jv legal advice received shortly prior settlement cause 50 jv exposure holland msj advice may 1997 doc 102 exhibit d2 minute 4 november 1996 doc 67 dealing matter66 one begin analysis observation commencement egis requires prove kvaerner servant agent conducted fashion reason want reasonable care skill diligence shown produced breach joint venture agreement 67 would necessary egis prove work point regard fact work carried one joint venture partnersfor joint venture opposed simply work carried joint venture pre bid stage68 proposition mr robertson proven responsible pre bid preliminary design work supplied joint venture holland least relation structural steel made good evidence contrary fact negated evidence 69 mr mcgovern accepted given reliable evidence relevant background includes worked 1990 r j brown associate operation manager later become general manager kvaerner joint venture conduct victorian proceeding joint venture partner initially controlled general manager joint venture liaison cmps f later referred joint venture management committee member 70 mr mcgovern closely cross examined attempt gain acquiescence proposition mr robertson pre bid stage effectively responsible engineer calling design shot evidence agree proposition transcript 61 put mr robertson certainly working structural steel design engineering organisation work would done would subject approval others everything designed checked approved different people design matter course think ever point one person responsible something always one person involved piece design work transcript 61 15 22 71 transcript 57 50 would accept pre bid stage mr robertson suggested cross examiner kvaerner specialist area made decision final design stage72 evidence term thefinaldesign stage would structural engineering team probably 15 20 people working project stage designer per se however might lead may even two three lead different aspect steel design sit together transcript 52 want reasonable care skill73 reference given mfi 3 establish anything remotely effect want reasonable care skill diligence even assuming kvaerner responsible work mr robertson even assuming kvaerner shown carried relevant workas joint venturer joint venture opposed mr robertson work simply carried outfor joint venture clearly reference establish want reasonable care skill diligence balance probability clearly enough attempt litigate victorian proceeding part present proceeding would amount enormous endeavour 74 particular problem egis faced approach took seeking prove kvaerner caused joint venture liability john holland arises theindirectmanner sought advance case evidentiary fashion victorian proceeding doubt complex extreme advanced trial would thing equal clearly included massive factual issue covering plethora area proper infer expert would called cross examined lay expert evidence would doubt adduced john holland presumably negated lay expert evidence adduced joint venture mind egis faced exceptionally difficult prospect seeking prove causation case present proceeding collateral reference sundry document prepared many year ago forming doubt tip iceberg term material produced pendency victorian proceeding hence report went evidence exhibit px tab 66 page 282 way apreliminaryview liability quantum includes sentence important note professor raineyhas notfound doug robertson negligent preliminary design stage although report continues deal cause concern various possibility matter speculation clearly cannot given weight egis contends 75 question correct payload used calculate weight structural steel preliminary design stage question generally suggested underestimation matter weight structural steel give rise many integer including assumption made person working preliminary design later stage assumption made precise term contract retainer number possible explanation including argument joint venture may able put way example suggested misinformation john holland could well probably one may infer may ripe litigation victorian proceeding onesimply knowand scant material relied upon egis mfi 3 precisely scant 76 indeed fair observe analysis framework egis appears working suggesting proved causation case amount assumption john holland commenced proceeding complained various matter complaint justified 77 regard case brought egis relation causation issue totally hopeless term matter respect bore onus proof certainly fallingveryfar short proving case balance probability 78 mr gee qc leading counsel egis also advanced submission paragraph 3 et seq mfi 3 based upon proposition 3 february 1994 termination agreement entered 2 february 1994 detailed design work produced produced kvaerner albeit pursuant contractual obligation joint venture john holland kvaerner basis said responsible breach anterior contract joint venture sued submission view specious relies upon proposition design work production post 3 february 1994 john holland would hadanyoracase proposition stated rejected even proposition held good attempt made egis separate much amount ultimately agreed acceptance offer compromise segment reference post 3 february 1994 work kvaerner alone said responsible could analysis even attempted hope succeed 79 egis obtain real assistance document mallesons advice may 1997 minute referred paragraph 6 mfi d3 term nature type proof would required order succeed causation question 80 mallesons advice noted mallesons advice went evidence exhibit d2 said final version earlier draft advice exhibit px volume 3 tab 102 dated 14 may 1997 advice post dated form amended statement claim went evidence exhibit px volume 5 tab 153 dated 22 november 1996 81 mallesons advice significant expose least relation john holland claim a1 a24 view claimsmust fail currently pleaded advice includes following regard john holland case cost guarantee case strong view neither term pre bid agreement design agreement support case john holland case one negligent design current pleading support however purpose assessing joint venture exposure determining appropriate settlement range mediation assume john holland eventually plead case negligent design purpose pricing case circumstance would difficult plead 82 truth may fairly said least section mallesons advice give supportat allto proposition balance probability john holland would succeed pleading court unaware precise form amendment pleading may proposed due course basis form pleading consideration mallesons time advice pleading obviously seen defective significant way simply point difficulty defendant utilising advice carrying proof balance probability term causation issue 83 minute use word potential risk investigation complete raise question provide answer see also mr mcgovern evidence transcript 51 could connect mr robertson reference house kavaerner designer net payment issuereturning facts84 albeit earlier treatment precise fact area little precision necessary none following matter issue well doubt fact minute joint venture management committee meeting 13 may 1996 noted agreement kvaerner oil would take complete financial responsibility fee claim basis settlement jv favour would 100 percent kvaerner account return cost incurred cmps f fee claim since action commenced august 1995 including legal fee jv labour expense would credited cmps f account offset financial obligation jv exhibit px vol 1 tab 37 minute included provision kvaerner oil would draw draft contract document reflect agreement would forward review execution cmps f initial deed subsequently signed annexure mr mcgovern affidavit 3 february 2003 ultimately appears august 1997 deed entered party following term proceeding commenced supreme court victoria 7 august 1995 proceeding 6844 1995 john holland construction engineering pty limited holland claim damage r j brown cmps f proceeding b r j brown cmps f counterclaimed proceeding 6844 1995 counterclaim c holland r j brown cmps f agreed settle proceeding payment holland 3 745 million settlement sum storebrand skadeforsikring paid mallesons stephen jaques mallesons settlement sum e holland paid 2 245 million settlement sum mallesons retains balance settlement sum namely 1 5 million trust account 1 5 million held trust f r j brown cmps f previously agreed deed dated 23 september 1996 counterclaim sole benefit r j brown r j brown pay cost associated pursuing counterclaim g r j brown asserts counterclaim compromised agreed payment holland 1 2 million plus cost cost r j brown assessed 300 000 h r j brown wish retain settlement sum way set amount 1 5 million referred recital g instructing mallesons transfer bank account r j brown 1 5 million held trust operative provision 1 consideration indemnity referred paragraph 2 hereof cmps f object mallesons transferring r j brown 1 5 million held trust use r j brown sole absolute discretion 2 r j brown agrees indemnify keep indemnified cmps f damage cost loss expense arising r j brown setting settlement sum 1 5 million r j brown say entitled pursuant compromise counterclaim 3 r j brown undertakes shall use best endeavour prevent judgment 1 5 million similar amount cmps f proceeding judgment obtained favour holland proceeding execution judgment stayed order court r j brown undertakes shall within seven day pay amount judgment holland amended defence filed behalf ofbothjoint venturer dated 6 february 1997 squarely pleaded denied holland entitled damage rj brown respect loss damage suffered holland alleged rj brown entitled set damage damage rj brown entitled recover holland pursuant counterclaim filed proceeding exhibit px tab 154 seems clear 28 may 1997 offer compromise received john holland exhibit px vol 3 tab 117 offer accept defendant sum 3 745 000 inclusive plaintiff party party cost proceeding compromise plaintiff claim defendant contained proceeding offer made without prejudice save question cost offer compromise accepted mallesons letter dated 3 june 1997 exhibit px volume 3 tab 122 letter accepting offer added client continue existing reservation right relation connected counterclaim following acceptance offer compromise kvaerner paid 2 245 million john holland withheld balance 1 5 million time kvaerner maintained counterclaim compromised party way agreement paid sum 1 2 million plus cost john holland denied compromise counterclaim kvaerner proposed timetable determination question however summons dated 27 june 1997 john holland sought order judgment claim defendant sum 3 745 000 john holland indicated would make application amend summons reduce judgment sum sought amount 1 5 million received 2 245 million john holland failed application judgment entered joint venture defendant 1 5 million court holding defendant counterclaim heard determined entitled raise counterclaim way defence set john holland claim money pursuant compromise exhibit px volume 3 tab 143 ultimately following settlement dispute concerning counterclaim 500 000 paid john holland submission egis85 already set substantial extent included overview submission received egis 86 additional submission made final address shortly assignee benefit counterclaim ultimately determined put counterclaim diminish joint liability otherwise would occurred transcript 166 deciding issue87 view submission kvaerner substance correct generally adopted importantly field contribution never doubted right contribution depends upon matter substance form burke v lfot pty ltd 2002 hca 17 2002 187 alr 612at 623 per mchugh j turn citingdering v earl winchelsea 1787 29 er 1184and 1185 per lord chief baron eyre 88 following analysis view correct original agreement back may 1996 valuable consideration whichwaspaid effect kvaerner would take complete financial responsibility fee claim basis settlement fee claim favour joint venture would account kvaerner valuable consideration payment cost incurred date egis effect reimbursed original agreement time reached effective binding albeit party clearly determined record agreement formal term later formalisation agreement alter originally agreed egis advance submission centred management fee result agreement familiar result agreement valuable consideration assign effect present chose action become future sum money short least moment payment consideration kvaerner effect became owner equity debt subject counterclaim cf meagher gummow lehane 4th ed meagher heydon leeming page 225 purported assignment value legal property fails law contract value assign legal property effect equitable assignment consideration paid executed case equity regard done ought done citing inter aliatailby v official receiver 1888 13 app ca 523 hence assignment effective vest beneficial ownership assigned chose action assignee immediately upon consideration paid moment equity fee claim john holland belonged kvaerner settlement john holland claim joint venture partner agreed became liable jointly severally pay agreed sum 3 745 million liable either failed refused pay could made pay whole time amount actually paid 2 45 million later additional 500 000 paid make 2 74 5 million 1 million going kvaerner reality paid joint venture john holland whole settlement sum 3 745 million john holland received whole settlement sum 3 745 million egis paid nothing kvaerner paid whole amount full said respect payment entitlement contribution enlivened set operated induce liability joint venture john holland mere fact pendency victorian proceeding joint venture foot pleading set say nothing respect issue fall considered point time joint venture agreed pay jointly severally 3 745 million john holland wasnoagreement counterclaim although discussion final settlement claim short john holland claim settled discretely apart counterclaim intended settlement achieved wash matter issue party set operated joint venture john holland liability joint venture john holland fixed 3 745 million reason wasnothingthat joint venture set joint venture equity joint venturein itselfdid equity value counterclaim law still maintained john holland joint venture owed money money came reason counterclaim belonged went directly kvaerner beneficial owner simply situation whereby whole 3 745 million substance regarded paid joint venture liability john holland albeit satisfied practical sense manner described recital f august 1997 deed recorded joint venture partner previously agreed deed counterclaim sole benefit kvaerner kvaerner would pay cost associated pursuing counterclaim enlivened covenant kvaerner indemnify keep indemnified egis damage cost loss expense arising egis setting settlement sum 1 5 million kvaerner oil say entitled pursuant compromise counterclaim likewise kvaerner undertook use best endeavour prevent judgment 1 5 million similar amount egis proceeding result instrument recording fact set done joint venture respect liability kvaerner achieving mechanism achieving payment settlement sum john holland egis misconceives position submitting really happened comprised set joint venture entitlement joint venture equity longer liability settlement john holland claim manner transaction documented recorded involved clearly kvaerner effect achieving set mechanism achieving payment full john holland company precise legal effect settlement john holland received payment full claim turn paid joint venture 1 million full final settlement counterclaim 1 million joint venturer solely exclusively beneficial property kvaerner 89 kvaerner became owner equity debt subject counterclaim particular circumstance timing manner primary claim settled joint venture partner john holland yet final settlement counterclaim simply set operated joint venture john holland least reason nothing thatthe joint venturethen could set joint venture equity value counterclaim owed money regard likewise form joint venture partner documented agreement respect counterclaim involved least august 1997 deed acceptance egis mallesons might transfer kvaerner 1 5 million held trust use kvaerner oil sole absolute discretion kvaerner claim respect legal fee incurred defence victorian proceedings90 common ground contention egis liable contribute towards 50 fee stand fall success failure egis submission respect causation issue failed regard necessary examine kvaerner entitlement contribution respect legal fee alleged overpayment storebrand 1 million91 mr gee submitted storebrand shown paid 3 745 million kvaerner appropriated 1 million money make claim fee good transcript 35 35 submission given net liability joint venture 2 745 million insurer actually paid 1 million kvaerner uninsurable element kvaerner obtained million dollar insurer something covered policy 92 matter understand pleaded reason likely matter open determination however regarding question one substance seems clear 1 million paid asset john holland 93 issue proceeding kvaerner egis john holland resolved agreement document earlier set described judgment lie mouth egis contend fashion kvaerner lost entitlement money egis accepted constituted kvaerner entitlement pursuant compromise counterclaim see example clause 1 august 1997 deed squarely recognised entitlement albeit time final clarification amount question interest94 certain submission advanced respect interest position egis enunciated insofar egis succeed claimed set 95 seems party given opportunity address live issue interest informed holding general principle contribution96 appropriate note outside particular issue litigated party sought gainsay operation general principle contribution cfalbion insurance co ltd v government insurance office nsw 1969 hca 55 1969 121 clr 342per kitto j 351 352 burke v lfot pty ltd 2002 hca 17 2002 187 alr 612per gaudron hayne jj 14 et seq short minute order97 party bring short minute order occasion submission interest may addressed certify paragraph 1 97are true copy reasonsfor judgment herein ofthe hon justice einsteingiven 12 february 2003___________________susan piggottassociate12 february 2003last updated 21 02 2003
SZUOB v Minister for Immigration and Border Protection [2015] FCA 752 (22 July 2015).txt	szuob v minister immigration border protection 2015 fca 752 22 july 2015 last updated 23 july 2015federal court australiaszuob v minister immigration border protection 2015 fca 752citation szuob v minister immigration border protection 2015 fca 752appeal application extension time leave appeal szuob v minister immigration border protection 2015 fcca 1144parties szuob szuoc szuod v minister immigration border protection administrative appeal tribunalfile number nsd 644 2015judge farrell jdate judgment 22 july 2015catchwords migration application extension time seek leave appeal leave appeal appeal decision federal circuit court dismissing application judicial review decision refugee review tribunal affirming decision delegate minister refuse protection visa consideration merit proposed ground appeallegislation federal court australia act 1976 cth 24 1a federal court rule 2011 cth r 35 13 migration act 1958 cth 424acases cited décor corporation pty ltd v dart industry inc 1991 fca 655 1991 33 fcr 397hunter valley development pty ltd v cohen 1984 3 fcr 344szbyr v minister immigration citizenship 2007 235 alr 609 2007 hca 26szqbv v minister immigration citizenship 2011 fca 1391szuob v minister immigration border protection 2015 fcca 1144date hearing 22 july 2015place sydneydivision general divisioncategory catchwordsnumber paragraph 38counsel first applicant first applicant appeared person assistance interpretercounsel second third applicant second third applicant appearsolicitor first respondent m e warner knight australian government solicitorcounsel second respondent second respondent submitted save costsin federal court australianew south wale district registrygeneral divisionnsd 644 2015between szuobfirst applicantszuocsecond applicantszuodthird applicantand minister immigration border protectionfirst respondentadministrative appeal tribunalsecond respondentjudge farrell jdate order 22 july 2015where made sydneythe court order name second respondent changed read administrative appeal tribunal application dismissed first applicant pay first respondent cost agreed taxed note entry order dealt rule 39 32 thefederal court rule 2011 federal court australianew south wale district registrygeneral divisionnsd 644 2015between szuobfirst applicantszuocsecond applicantszuodthird applicantand minister immigration border protectionfirst respondentadministrative appeal tribunalsecond respondentjudge farrell jdate 22 july 2015place sydneyreasons judgmentthis application extension time seek leave appeal leave appeal judgment judge nicholls federal circuit court australia delivered 6 may 2015 seeszuob v minister immigration border protection 2015 fcca 1144 szuob minister made application amend name second respondent administrative appeal tribunal granted application backgroundthe first applicant refer applicant citizen nepal arriving australia tourist visa 19 june 2012 resident singapore 14 year dependent spouse husband husband officer serving gurkha contingent singapore police service second third applicant applicant child daughter 13 son 12 time refugee review tribunal known made decision 27 may 2014 child nepalese citizen born singapore applicant applied protection class xa visa 19 july 2012 day visitor visa expired child applied member family unit delegate minister refused grant protection visa 20 march 2013 primary judge summarised basis applicant claim protection inszuobat 28 reference court book omitted applicant claimed fear harm return nepal husband law believe witch separated husband victim domestic violence also claimed may killed maoist anti maoist past demanded money husband tribunal decisionon 10 april 2013 applicant applied tribunal review delegate decision tribunal affirmed delegate decision 27 may 2014 summary tribunal decision 21 statement decision reason statement tribunal find applicant evidence regarding central aspect claim vague implausible unsupported including country information independent source considered together reason discussed lead tribunal conclude claim credible tribunal satisfied applicant genuine fear persecution convention reason real chance suffer serious significant harm return nepal summary applicant alleged husband become distant abusive violent towards since march 2011 told considered property could wanted say domestic violence father law accused witch caused mother law sick shiver fever week visit nepal late 2010 also blamed teaching child nepali good mother never threatened remove child say january 2012 husband bound slapped abused threatened knife report incident fear husband would lose job would returned nepal want anything happen child also concerned think would believed husband nice outside felt life risk stayed applicant say family staying law late 2010 maoist came house demanding money threatened harm family full amount demanded paid tribunal find plausible applicant husband suspected witch would cooperative providing copy personal document necessary consent applicant child obtain visitor visa australia pay airline ticket statement 23 tribunal found applicant evidence concerning husband attitude towards woman witchcraft implausible light 1 tolerant treatment applicant unmarried younger sister lived independently sydney questioned treatment applicant visit singapore early 2012 2 fact allowed take child australia would unlikely regarded witch statement 24 tribunal also found plausible husband officer prestigious gurkha contingent lived worked highly developed singapore 13 year would influenced village superstition witchcraft notwithstanding submission applicant adviser mindset persist statement 25 tribunal considered country information regarding witchcraft nepal support applicant claim since woman accused witchcraft aged widowed poor illiterate disabled otherwise socially economically vulnerable victim usually died disappeared prolonged illness miscarriage neither applicant mother law brief illness recovered fit profile statement 26 tribunal consider reason delay applying protection visa convincing applicant said know anyone help considered returning singapore tribunal noted sister process applying protection visa statement 27 tribunal also considered applicant evidence maoist vague confusing statement 28 result tribunal satisfied applicant well founded fear persecution reasonably foreseeable future tribunal satisfied real risk would suffer significant harm returned nepal federal circuit court decisionthe applicant applied federal circuit court judicial review tribunal decision application filed 23 june 2014 11 february 2015 federal court registrar dismissed application applicant appear 19 february 2015 applicant filed application case seeking set aside order made 11 february 2015 application listed 18 march 2015 matter adjourned primary judge satisfied applicant failed serve application minister application set aside order made 11 february 2015 heard primary judge judgment reserved 25 march 2015 6 may 2015 primary judge dismissed application ground applicant substantive application federal circuit court follows written 1 satisfied refugee review tribunal member decision issue fairness natural justice claim victim domestic violence refugee review tribunal rejected claim member display lack nepalese cultural awareness necessary examine information point view environment occurred rather point arbitrary view 2 agreed decision rrt member consider concern expressed believe rrt member biased member took irrelevant view consideration husband allowed child leave singapore well husband mentality abuse towards therefore taking irrelevant consideration mere commentary account refuse claim legal error 3 argue victim rrt member purported decision first primary judge satisfied applicant provided satisfactory explanation non attendance registrar 11 february 2015 szuobat 23 explanation provided forgot hearing required take food sister look hospital following birth sister baby second primary judge found substantive application raise arguable case interest justice reinstate proceed final hearing szuobat 26 primary judge considered dismissed ground applicant substantive application argument raised written submission respect ground one primary judge held applicant seemed expressing dissatisfaction tribunal finding adverse credit rejection factual basis claim fear harm primary judge view finding credibility reasonably open tribunal make primary judge also found tribunal base finding misunderstanding relevant cultural attitude inconsistency applicant evidence szuobat 41 43 relation ground two considered relevant authority primary judge found bias revealed bias said arise tribunal accept applicant claim domestic violence perpetrated husband finding finding informed reasonably open tribunal based view applicant evidence husband claimed conduct could said irrelevant consideration conduct formed basis applicant claim fear harm szuobat 44 50 primary judge seem separately dealt ground three however clear allege particular error part tribunal rather simply expressed disagreement overall decision primary judge dealt six numbered paragraph applicant written submission appeared part raise additional complaint tribunal decision szuobat 51 paragraph one alleged tribunal overlooked applicant claim primary judge found overlooked meant failed consider clear fair reading statement tribunal considered applicant claim rejected basis finding reasonably open szuobat 52 paragraph two asserted bias part tribunal failure bring open mind proceeding rejected reason ground two primary judge noted nothing tribunal statement support assertion applicant provided evidence support szuobat 53 paragraph three said unfair tribunal ignored expert evidence given psychologist support applicant claim paragraph six alleged tribunal ignored evidence applicant traumatised mental state primary judge gave detailed consideration claim held tribunal ignored report although substance report referred tribunal reason referred date letter report received list document considered tribunal set statement primary judge noted applicant represented registered migration agent delegate tribunal agent make clear purpose submitting report primary judge found report recounted applicant account event could said independently corroborative applicant claim past event fear harm say anything applicant capacity participate hearing primary judge accepted evidence tribunal ignore report open find ignored overlooked szuobat 54 64 paragraph four complained tribunal finding applicant claim unsupported country information primary judge held tribunal explained country information concerning witchcraft nepal relevance country information submitted applicant representative assistance applicant szuobat 65 66 primary judge considered paragraph five appeared assert failure tribunal put applicant information tribunal considered adverse case could identify information referred primary judge concluded tribunal adverse view credibility information purpose ofs 424aof themigration act 1958 cth relying onszbyr v minister immigration citizenship 2007 235 alr 609 2007 hca 26 country information fall within exception in 424a 3 relation information applicant application visitor visa clear 19 statement tribunal discussed information applicant gave opportunity comment szuobat 67 70 application courti accepted minister submission judgment inszuobis interlocutory seeszqbv v minister immigration citizenship 2011 fca 1391at 32 per cowdroy j leave appeal therefore required unders 24 1a ofthefederal court australia act 1976 cth applicant filed application court 3 june 2015 pursuant r 35 13 thefederal court rule 2011 cth application leave appeal must filed within 14 day date judgment appeal sought pronounced order made primary judgment delivered order made 6 may 2015 application needed filed 20 may 2015 within time delay therefore 14 day reason delay set affidavit filed court applicant follows written 2 failed lodge application leave appeal within 14 day date judgement thought could lodge application leave appeal within 28 day date judgement 3 learned deadline court officer registry sydney went tried file application 26 may 2015 applicant draft notice appeal specifies three ground written 1 federal circuit court erred failing find tribunal member made legal mistake tribunal member ignored completely expert psychologist report dr amanda gordon given department immigration border protection explain issue relating trauma 2 contended federal circuit court judge nicholls erred failing find tribunal member overlooked claim issue suffering domestic violence concluding husband harm try harm regard material upon relied reliance irrational unreasonable 3 argue tribunal member closed mind prematurely tribunal member used information given department immigration border protection visitor visa application main reason refuse unfair victim tribunal member closed premature mind relevant factor exercise discretion extend time length applicant delay lodging application reason delay prejudice respondent delay granted prospect proposed ground appeal hunter valley development pty ltd v cohen 1984 3 fcr 344 349 9 per wilcox j considering whether leave appeal granted must shown sufficient doubt correctness judgment judgment assumed wrong substantial injustice would suffered applicant leave appeal refused décor corporation pty ltd v dart industry inc 1991 fca 655 1991 33 fcr 397at 398 considerationthe minister accepts delay short would suffer prejudice extension time granted however minister submits extension time leave appeal refused ground sought raised applicant lack merit utility court granting extension time reason given delay insufficient minister submits extension time leave appeal nevertheless granted appeal dismissed although applicant offered legally acceptable excuse delay delay would impediment court granting extension time leave appeal substantive appeal appeared merit applicant appeared hearing assistance interpreter filed written submission oral submission lie psychologist tribunal opinion person suffered domestic violence position know truth therefore tribunal decision wrong submission express disagreement tribunal decision advance ground raised applicant invite impermissible merit review applicant also submits inappropriate tribunal use visitor visa application information context protection visa reject submission reason set applicant first proposed ground essentially considered primary judge 54 64 reason applicant second proposed ground essentially addressed 52 primary judge reason applicant third proposed ground essentially addressed 53 67 70 primary judge reason careful review statement andszuobin light ground proposed applicant submission perceive appellable error part primary judge jurisdictional error part tribunal dismiss application second third applicant child order applicant pay first respondent cost agreed taxed certify preceding thirty eight 38 numbered paragraph true copy reason judgment herein honourable justice farrell associate dated 22 july 2015
Belmont Family Taverna [2000] QLAT 12 (23 February 2000).txt	belmont family taverna 2000 qlat 12 23 february 2000 last updated 17 april 2002belmont family taverna 2000 qlat 12appeal liquorland queensland pty ltd g avenall lm may decision chief executive grant general licence respect premise known belmont family tavernaappeal 10 11 12 1999 2000hearing 24 november 1999 9 10 december 1999 19 january 2000 1 february 2000tribunal mr allingham presiding member mr g spender mr j harringtondecision 23 february 2000background appeal1 17 november 1998 belmont family taverna pty ltd applicant lodged application general licence premise known belmont family taverna situated shop 16 community shopping centre 185 belmont road tingalpa trading hour 10 00 12 midnight monday sunday shopping centre owned managed company mr louis toumbas director shareholder mr toumbas also director shareholder applicant company 2 application advertised pursuant tosection 118 1 theliquor act 1992 act twenty six individual objection four petition containing total fifty two signature one submission public need opposing application liquorland pty ltd liquorland owner tingalpa hotel received objection conference held resolution obtained objector concern 3 brisbane city council council assistant commissioner police metropolitan south region asked comment application pursuant tosection 117of act neither council police objection application 4 9 june 1999 chief executive refused application basis adverse amenity impact lack satisfaction public need basis proposal meet primary purpose general licence latter concern arose plan submitted liquor licensing division division conjunction application showed small 2 metre long liquor servery counter appeared proposed facility would provide primarily consumption liquor table association provision meal circumstance chief executive considered premise meal licence would appropriate general licence 5 mr toumbas sought review chief executive decision behalf applicant executive director division agreed submission could lodged addressing concern division application would reviewed 6 amended lay plan submitted liquor servery counter extended length outdoor dining area relocated away residential property located south premise position northern eastern side premise noise impact would directed towards car parking area shopping centre 7 report addressing public need amenity issue submitted craven town planning prepared earlier public need report lodged conjunction original application november 1998 8 considering additional material submitted chief executive determined 1 september 1999 grant application reason decision provided tribunal executive director division state follows application met division requirement term premise information required supplied applicant found fit proper person term ofsection 107of theliquor act 1992 police relevant local authority provide objection application department satisfied amenity term ofsection 119of act would unduly affected department satisfied public need exists term ofsection 116of act preliminary legal issue power chief executive review decisions9 mr roll counsel initially appeared behalf three objector appellant liquorland mr g avenall mr lm may submitted tribunal lacked jurisdiction hear appeal decision 1 september 1999 appealed ultra vires void chief executive power act review original decision argued effective decision decision 9 june 1999 refuse application appeal instituted decision 10 hearing argument mr roll mr herbert counsel appeared behalf applicant mr r smith officer division appeared behalf chief executive tribunal ruled chief executive power review original decision pursuant tosection 24aaof theacts interpretation act 1954 provides follows act authorises requires making instrument decision power includes power amend repeal instrument decision b power amend repeal instrument decision exercisable way subject condition power make instrument decision 11 tribunal accept mr roll argument requirement insection 24aa b satisfied advertisement application taken place amended lay plan lodged july 1999 tribunal ruled nature application significantly changed amendment made lay plan change minor proposal remained substantially amendment plan application advertised objection conference held information proposal would available objector would substantially different available original objector conference division make architectural plan document available objector b absence town planning approval amended plans12 objector appellant raised second ground upon argued decision chief executive 1 september 1999 null void submitted chief executive cannot satisfied undersection 4 g iv liquor regulation 1992 proposed tavern permitted use council town planning scheme amended plan 1 september 1999 approved council original plan approved amended plan submitted council september 1999 13 time tribunal hearing 9 december 1999 issue argued amended plan submitted council approval amended plan received approval still received time final hearing day 1 february 2000 objector appellant argued circumstance grant licence sought would invalid 14 tribunal find section 4 g iv mandatory provision determining relies upon recent supreme court decision muir j inecovale pty ltd v chief executive liquor licensing division harburg investment pty ltd 10172 1999 unreported decision 14 january 2000 case muir j considered proper construction section 105 act section 4 g iv regulation section 105 act relevantly provides application purpose part must made chief executive b form approved chief executive c specify accompanied particular prescribed regulation section 4 liquor regulation 1992 provides application licence must accompanied g case application licence iv evidence conducting proposed business premise permitted use relevant local government planning scheme 15 honour finding section 4 regulation directory discussed proper interpretation following term 17 whether failure comply r 4 invalidating effect depends whether discerned act regulation legislative purpose invalidate act fails comply condition project blue sky v australian broadcasting authority 1998 hca 28 1998 194 clr 355at 398 thatreference said joint judgment existence purpose ascertained reference language statute subject matter object consequence party holding void every act done breach condition view difficult discern legislation intention invalidate licence granted consequence faulty application purpose subject requirement 105 enable application properly considered processed 105 enacted particular prescribed regulation unknown course particular could vary time time usual scheme thing one would expect particular include range matter varying degree importance legislation doubtless contemplates application form subjected scrutiny officer chief executive view ensuring compliance statutory requirement accept legislature contemplate would countenance amendment supplementation deficient application required rejection application deficient respect matter minor 19 member public right inspect application document accompanying thus risk member public might misled even inconvenienced supplementation deficient application recalled stated object act provide flexible practical system regulation liquor sic state minimum formality technicality object sit comfortably notion administering act may check application deficiency found permit remedied minimum inconvenience expense 22 also unable accept legislative scheme contemplated application deficient nevertheless resulted grant licence grant would invalid conclude contrary would mean third party transferee mortgagee would unable rely upon existence licence proof valid licence would need satisfy prerequisite grant licence met task could often prove difficult impossible accomplish departmental file generally accessible public think unlikely legislature intended introduce licensing scheme uncertainty would result inability member public rely validity licence appear face duly granted cf attorney general nsw exrel franklin store pty ltd v lizelle pty ltd 1977 2nswlr 955 965 5 16 tribunal find power grant licence sought application even date determination requisite council approval obtained minded grant licence sought grant valid exercise tribunal power even though premise licence relate able used business tavern council approval forthcoming c locus standi liquorland objector17 mr herbert applicant submitted liquorland competent objector right either appeal heard appeal decision chief executive 1 september 1999 18 hearing argument mr herbert mr hughes counsel appeared objector appellant second subsequent day hearing mr smith tribunal ruled liquorland valid objector ordered liquorland appeal dismissed give reason ruling 19 6 june 1999 response advertising application liquorland lodged objection application section 119 amenity ground liquorland owner tingalpa hotel situated 1563 wynnum road tingalpa distance approximately 1 2 kilometre proposed premise liquorland objection lodged behalf buckley vann town planning consultant based concern relating likely adverse impact upon resident living close proximity site burstall avenue likely offence disturbance operator kid club child care centre child care centre situated immediately adjacent proposed premise parent child attending centre likely annoyance disturbance inconvenience tenancy shopping centre 20 section 119 1 provides notice application published required section 118 member public may object grant application writing filed chief executive last day filing objection specified notice term member public defined sub section 4 section 119 following term member public mean adult individual body person chief executive opinion proper interest locality concerned b likely affected grant application 21 upon basis material contained section 119 objection tribunal satisfied liquorland shown likely affected grant application tribunal considers sub section 4 section 119 must construed context section 119 whole including sub section 3 section 119 specifies ground upon objection may made ground characterised relating physical rather commercial impact upon member public tribunal considers necessary objector order meet requirement member public show likely adverse physical effect upon objector personally resident locality concerned person travel locality attend hospital church school show adverse physical effect upon business objector conduct locality physical effect upon business might include vandalism relating business premise increased traffic parking difficulty affect operator staff client business physical effect may result financial loss business objector however circumstance economic effect secondary physical effect 22 tribunal considers sub section 4 section 119 contemplate adverse economic effect related introduction business competitor locality apart adverse physical effect upon objector business commercial objector fall within definition member public objector unable show licence sought would interfere maintenance proper amenity around objector business premise 23 mr hughes submitted liquorland concerned existence tavern caused adverse impact upon community antagonised community would adverse impact upon hospitality industry whole would diminish acceptance tingalpa hotel eye local community extent amenity tingalpa hotel affected however evidence actually given liquorland potential adverse effect upon amenity 24 tribunal aware decision full court inbroad v brisbane city council baptist union queensland 1986 2qd r 317 held concept amenity wide flexible may embrace effect place sens also resident subjective perception locality subjective perception objector must disregarded perception may accorded little weight find justification specific concrete likely effect area circumstance case direct evidence put u concern alluded mr hughes liquorland hold adverse effect upon tingalpa hotel establishment tavern detrimental effect community tribunal simply noevidence case suggested liquorland could possibly adversely affected way contemplated sub section 3 section 119 25 necessary tribunal view determine whether liquorland proper interest locality requirement sub section 4 b respectively conjunctive found requirement sub section 4 b met liquorland fall within definition member public 26 decision inrolfe pty ltd v chief executive unreported decision lat 20 october 1997 tribunal found jurisdiction pursuant section 21 2 review opinion chief executive formed pursuant section 119 4 person member public entitled lodge objection defined section 119 4 27 tribunal find likewise jurisdiction review opinion chief executive case liquorland member public tribunal find liquorland section 119 objection valid objection liquorland entitlement section 30 appeal appeal must therefore dismissed also entitlement pursuant section 33 34 heard hearing appeal case applicant28 mr herbert called evidence behalf applicant mr toumbas m c mcnamara tenant shopping centre also filed written statement oral evidence also given author expert report upon applicant relied expert called mr r brameld prepared traffic report mr p king prepared noise assessment mr craven prepared several public need report m c kolatsis expertise early childhood education 29 applicant also relied upon written statement letter support number local resident tenant shopping centre local government councillor director company provides security shopping centre case division30 mr smith supported decision chief executive grant licence clarified history processing application explained basis upon chief executive reviewed subsequently reversed original decision referred departmental analysis public need amenity issue prepared officer roscarel king recommendation upon chief executive relied reversing original decision case theobjectors31 mr hughes continued appear objector appellant mr avenall mr may hearing mr avenall mr may live close proximity proposed premise 6 burstall avenue 17 burstall avenue respectively gave oral evidence relied also previously submitted written material voiced objection application 32 four local resident gave evidence hearing support written objection mr dao director child care centre objected behalf parent child attend centre also gave oral evidenceissues determination33 determining whether grant general licence chief executive case tribunal must satisfied pursuant section 60 act primary purpose business conducted subject premise sale liquor consumption premise premise provision entertainment premise business conducted premise includes provision meal accommodation extent required chief executive difficulty satisfied respect matter 34 determining application tribunal must also regard matter specified section 121 5 c e g act tribunal satisfied section 121 5 c licence applied necessary provide reasonable requirement public liquor relevant locality pursuant section 116 2 necessary factor specified section 121 5 e g taken account latter factor objection made application comment relevant local government authority impact amenity community concerned locality application relates35 order determine whether licence applied necessary provide reasonable requirement public necessary first determine reasonable boundary locality application relates relevant locality purpose section 116 defined area hotel likely exert influence liquor trading characteristic order determine relevant locality necessary regard nature proposed premise service offered geographical man made boundary effect influence premise locality 36 proposed premise located corner belmont road burstall avenue within belmont community shopping centre complex shopping centre complex consists three detached building building 1 retail space approximately 2 000 square metre contains mini supermarket newsagency butcher bakery pharmacy video store bottle shop hairdresser chinese restaurant seafood takeaway building 2 house child care centre proposed tavern premise located building 3 together one commercial tenancy 37 tavern premise comprise restaurant outdoor dining area child entertainment area gaming room lounge room exposed kitchen bar gross floor area including outdoor dining area 690 square metre area licensed include area adjacent tavern premise along burstall avenue designated plan tendered hearing function area playground 38 seating capacity indoor outdoor dining area approximately 130 patron tavern park shopping centre car park capacity 168 car 39 mr toumbas say premise operate family tavern cater member family particularly child three distinct child area namely toddler area situated full view parent dining restaurant young child area similar concept kid cafe garden city shopping centre young teenager area child 18 year age game nintendo sega surf net staff tavern premise supervise child area time child food menu low level background music live entertainment 40 considered evidence relevant locality including view division m v crowley view mr p kleineberg stated public need submission dated 9 january 1999 lodged behalf liquorland tribunal find primary trade area locality area within 3 minute drive proposed site delineated appendix public need submission stephen craven consultant dated november 1997 area take suburb tingalpa belmont part gumdale carina carindale reasonable requirement public locality41 respect section 116 3 matter must regard tribunal find one general licence presently operating locality tingalpa hotel situated 1 2 kilometer proposed site tingalpa hotel certainly readily accessible resident locality large conventional hotel traditional old style public bar lounge outdoor beer garden includes large lucky buy cheap liquor barn could characterised family orientated facility tribunal find tingalpa hotel intimate character appeal family group discriminating patron 42 respect matter must regard pursuant section 116 4 tribunal find total population locality shown 1996 australian bureau statistic census population housing 12 234 people tribunal accepts mr stephen craven evidence 5 5 growth rate experienced locality 1991 1996 say assumed rate continue today date however rapidly growing area growth expected decrease time consolidation occurs purpose report mr craven assumed reduction 3 basis calculated current population locality 14 366 estimate population 2004 locality 16 654 belief significant positive growth likely continue substantial land locality available residential development 43 tribunal accepts conclusion mr craven respect demographic profile locality includes following feature locality significantly higher average percentage household income excess 50 000 correspondingly lower average percentage household income le 20 000 higher average percentage person le 18 year age significantly greater percentage family child suggests locality fundamentally family area locality thus exhibit characteristic stable population strong social fabric based demographic profile tribunal concern establishment tavern would adverse health social impact community concerned demographic characteristic suggest need family orientated facility people higher average household income44 taken consideration matter must regard pursuant section 116 3 4 act tribunal satisfied basis material placed proposed tavern necessary meet reasonable requirement public locality liquor related service amenity issuesnoise45 major concern objector noise likely generated patron departing premise late night particular concern resident live immediately opposite proposed site burstall avenue resident mr stevens mr avenall mr wheeldon live 4 6 8 burstall avenue respectively mr may life 17 burstall avenue husband three child life immediately adjacent park adjoins shopping centre side burstall avenue proposed premise also extremely concerned noise late night 46 tribunal satisfied noise emanating within tavern whether patron entertainment controlled strict acoustic requirement imposed division general condition issue general licence however noise generated patron departing licensed premise late night cannot totally eliminated although controlled various security measure 47 tavern premise provide noise buffer burstall avenue resident noise emanating outdoor dining area orientated towards car park elevation belmont road site existence embankment boundary car park along belmont road provide sound buffer noise associated outdoordining use car park resident live belmont road townhouses immediately opposite subject site belmont road must noted major road generates significant level noise 48 tribunal considers 168 car park available within shopping centre car park sufficient accommodate tavern patron even busiest night two car parking space lost result amendment plan change minor relative size shopping centre car park whole council satisfied giving initial consent number car parking space sufficient cope demand shopping centre tavern consider unlikely parking tavern patron burstall avenue belmont road nearby street 49 mr toumbas said perimeter premise along burstall avenue extensively landscaped enclosed timber acoustic fence additional sound proofing material inside fence facing shopping centre fence 1 8 metre high likely provision fence case form part approval condition imposed council 50 noise generated departing patron also limited presence licensed security officer patrolling outside tavern premise mr toumbas say would difficulty accepting trading condition requires officer patrol outside tavern premise time particular one hour trading ceased ensure patron disburse orderly fashion 51 eight video camera installed inside tavern premise eight camera located throughout shopping centre camera operate 24 hour tape monitor inside tavern premise regularly checked 52 tribunal impressed professional manner mr toumbas developed proposal doubt tavern approved would run high standard view level security provided fact tribunal confident tavern well managed satisfied noise person departing premise unlikely significant adverse impact upon resident live immediate vicinity proposed site increased traffic53 tribunal noted concern resident respect increased traffic likely generated tavern must remembered premise already part substantial shopping centre amenity local resident already compromised extent fairly heavy traffic generated centre 54 accept mr brameld conclusion total generation vehicle result existence tavern would low estimate fully operational tavern traffic evening burstall avenue would 30 vehicle per hour early evening 20 vehicle per hour late night nearer closing time say traffic generated tavern would peak 58 vehicle per hour compared 250 vehicle per hour shop size 55 tribunal consider significant adverse impact increased traffic day early evening accept likely increase number vehicle entering exiting car parking area 10 p 56 evidence suggests could source disturbance resident live near burstall avenue exit resident much closer exit townhouse resident live near belmont road exit concerned mr wheeldon whose home directly opposite burstall avenue exit said draw blind window front house light car exiting burstall avenue shine front room mr toumbas advised would accept trading condition prohibited vehicular access car park burstall avenue erection appropriate barrier 10 p tribunal considers vehicular access car park burstall avenue also prevented late night minimise noise generated increased traffic nearby resident burstall avenue restriction access 10 30 p rather 10 p might better accommodate reasonable access need user shopping centre child care centre57 child care centre licensed 75 child per day mr dao present owner operator say 93 child enrolled centre centre caters child aged 6 week pre school age child dropped parent 7 9 majority child collected 4 p 5 p earliest time child would collected would normally 3 p latest time 6 p child sleep time approximately 12 noon 2 p mr dao concerned child sleep room tavern side premise would disturbed delivery vehicle using loading bay side premise mr toumbas say would accept trading condition prohibits use loading zone western boundary premise delivery vehicle 12 noon 2 30 p monday friday 58 mr dao say husband parent child attend child care centre concerned increased traffic undue disturbance parent likely suffer delivering collecting child 59 m kolatsis university lecturer early childhood education extensive experience working child care centre say believe tavern would adverse impact child care centre point child care centre parking bay separate used shopping centre centre also well secured high fencing child care centre one access visually manned staff centre also stringent condition relation delivery collection child authorised signatory permitted collect child 60 mr comino wife proposed nominee tavern licensee child care centre time opened january 1994 september 1998 also belief tavern would adverse impact child care centre point child dropped prior tavern opening time collected parent 3 p busy evening period tavern commences also state fence approximately six foot height surround child care centre wooden paling close together youstand inside centre cannot see likewise standing outside cannot see narrow pathway side child care centre fence facing tavern access along side child never allowed leave fenced confines child care centre unless accompanied parent another responsible adult person staff parent legitimate business child care centre admitted centre61 mr spreadborough managing director ringwood group retained mr toumbas supply security service tavern state believe tavern would adverse impact upon child care centre say company provides security service tavern situated close child care centre premise chatswood hill tavern runcorn tavern woodridge tavern waterford hotel loganholme tavern say experience tavern caused concern nearby child care centre say fact tavern ended meeting place mother child attending child care centre tavern also become hub local community act local meeting place also satisfy need nearby resident relation provision meal entertainment safe venue say experience belmont shopping centre complex provided security service since inception high risk area crime rate low compared area company developed excellent liaison local police 62 considered evidence given respect possible impact child care centre tribunal satisfied tavern would unlikely adverse impact child parent child staff centre unruly patrons63 objector understandably fearful intoxicated person leaving premise walking nearby street may interfere quiet enjoyment home use local street use shopping centre 64 already noted tribunal confident tavern well run applicant company nominee mr comino traditional hotel binge drinking group male patron likely occur small neighbourhood tavern tribunal view unlikely create unruly patron street licensed restaurant could alternative use site application refused 65 security provided way camera security officer patrolling shopping centre immediate environs adequate tribunal view prevent unruly patron creating disturbance interfering local resident shopping centre car park adjoining street conclusion66 tribunal find benefit resident tingalpa belmont available facility small congenial tavern outweigh balance possible detriment amenity adjoining residential area detrimental impact likely tribunal view sufficient significance justify refusal application 67 considered matter specified section 121 5 section 60 act tribunal satisfied exercise discretion favour granting application general licence decision tribunalthe tribunal order 1 decision chief executive 1stseptember 1999 confirmed 2 application belmont family taverna pty ltd general licence respect premise known belmont family taverna 185 belmont road tingalpa granted trading hour defined 10 12 midnight monday sunday subject receipt outstanding documentation specified chief executive decision 1stseptember 1999 b standard trading condition general licence including following special trading condition acoustic fence 1 8 metre height shall erected along burstall avenue perimeter shopping centre allotment acoustic fence 2 0 metre height shall erected along building perimeter southern side premise ii video security camera surveillance shall installed inside outside licensed premise 24 hour tape back base monitoring iii licensed security provider patrol outside premise periodically trading hour provide static cover least 1 hour 1 hour evening closing time ensure patron leave premise shopping centre orderly manner iv use loading zone western boundary premise shall permitted 12 noon 2 30 p monday friday v vehicular egress ingres burstall avenue 10 30 p 1 monday sunday shall prevented erection licensee appropriate barrier across burstall avenue exit
LIANG (Migration) [2019] AATA 4400 (24 September 2019).txt	liang migration 2019 aata 4400 24 september 2019 last updated 30 october 2019liang migration 2019 aata 4400 24 september 2019 decision recorddivision migration refugee divisionapplicant mr zhihao liangcase number 1711822dibp reference bcc2017 1328796member david mccullochdate 24 september 2019place decision sydneydecision tribunal confirms decision dismiss application statement made 24 september 2019 3 23pmcatchwordsmigration cancellation student temporary class tu subclass 573 higher education sector appear hearing apply reinstatement decision review dismissedlegislationmigration act 1958 cth s 362b 362c 5 statement decision reasonsapplication reviewthis application review decision made delegate minister immigration 29 may 2017 cancel applicant subclass 573 student temporary class tu visa themigration act 1958 act 6 september 2019 tribunal dismissed application unders 362b 1a b act review applicant appear give evidence present argument time date scheduled hearing review applicant notified dismissal decision given copy written statement setting decision reason decision accordance withs 362c 5 review applicant advised reinstatement application could sought within 14 day receiving dismissal statement failure apply reinstatement within 14 day period would result confirmation dismissal decision review applicant apply reinstatement application within 14 day period tribunal must confirm decision dismiss application circumstance decision review taken affirmed decisionthe tribunal confirms decision dismiss application david mccullochmember
R v Mobbs & Dogramaci [2013] NSWDC 103 (15 April 2013).txt	r v mobbs dogramaci 2013 nswdc 103 15 april 2013 last updated 15 july 2013district courtnew south walescase title r v mobbs dogramacimedium neutral citation 2013 nswdc 103hearing date 15 april 2013decision date 15 april 2013before berman sc dcjdecision evidence admittedcatchwords criminal law judgment admissibility statement accusedlegislation cited criminal procedure actcategory interlocutory applicationsparties crowndaniel james mobbsabdullah sedat dogramacirepresentation counsel mr c everson crownms n mikhaiel accused mobbsmr lucas accused dogramaci solicitor director public prosecutionslegal aid commission accused mobbstully chiper accused dogramacifile number 2008 70956judgmenthis honour morning trial abdullah dogramaci daniel mobbs commence told jury could empanelled needed resolve particular legal issue issue concerned admissibility statement made mr mobbs police mount druitt police station 30 october 2008 anyone reading judgment must understand year 2008 misprint statement made police mr mobbs one accused trial following circumstance police went premise leased blackett gather fair people involved execution search warrant premise police suspected drug manufacturing operation taking place premise thus police also forensic chemist officer new south wale fire brigade present mr mobbs home police others arrived telephoned came premise important bear mind shortly arrival spoken police arrested cautioned need say anything told would taken back police station went back police station stage someone made decision mr mobbs would interviewed suspect crime would interviewed potential witness statement subject determination headed statement witness p190a form around long time statement agreed mr mobbs make admission crown want tender mr mobbs current trial m mikhaiel appears mr mobbs object saying provision 281 thecriminal procedure actrequire rejection clear mr mobbs left blackett heading police station least one police officer regarded suspect reasonable suspicion mind officer arrested reasonable suspicion seems shared officer well crown tendered material application immediately obvious missing evidence person made decision interview mr mobbs witness rather suspect hearsay evidence relevance statement detective inspector iorfino paragraph 17 statement appears quote entirety paragraph recall day conversation detective sergeant gordon respect accused mean mr mobbs recall accused charged offence relating manufacture prohibited drug blackett provided statement discussion detective sergeant gordon decision take course action date requisite knowledge accused manufacture clearly established time custody deemed appropriate review conducted available evidence preferring charge accused determine whether committed offence witness relevant investigation time accused custody 30 october 2008 determined accused would treated witness review evidence obtained seems detective sergeant gordon made decision treat mr mobbs witness rather suspect para 17 quoted informative confirms fairly clear evidence mr mobbs remained suspect even statement taken may well requisite knowledge accused manufacture clearly established time custody need review available evidence preferring charge show still suspect investigation needed either confirm suspicion allay clear police yet decided whether charge equally clear still suspicion committed offence paragraph 17 great assistance mr mobbs application rule say every electronically recorded interview followed accused charged course appropriate police mr mobbs case suspected stage committed offence interviewed electronically course electronic interview mr mobbs provided exculpatory explanation meant longer suspect result would charged section 281 contains number criterion set admission section applies relevance present application question whether mr mobbs could reasonably suspected investigating official committed offence crown conceded mr mobbs could reasonably suspected investigating official committed offence content telephone intercept concerned call made mr mobbs arrest thus said mr crown issue whether statement admissible mr mobbs depends whether reasonable excuse electronically recording mr mobbs said reasonable excuse said crown police made decision interview mr mobbs electronically know content telephone call prepared make decision ignoring content telephone call evidence mr mobbs rented premise occupied premise drug laboratory premise locked door inside house item consistent drug manufacture least supply living area house circumstance mr mobbs clearly suspect indeed tried make clear suspected committed crime investigating official mean admission made needed electronically recorded unless reasonable excuse established crown fall m mikhaiel tell earlier prepared make submission reasonable excuse one three identified circumstance referred definition notwithstanding authority suggesting accuracy submission submission would rejected fairly quickly rejected necessary consider word includes word appears throughout legislation new south wale rarely ever construed meaning includes includes whole history 281 make clear three circumstance never meant cover field might reasonable excuse crown claim reasonable excuse provided circumstance investigating police know telephone call fall wayside realised telephone call nothing suspicion police actually held day mr mobbs arrested crown managed demonstrate reasonable excuse failing electronically record admission statement admitted trial
Chamberlain v RG&H Investments Pty Limited, in the matter of Hardy Bros (Earthmoving) Pty Limited (in liq) [2009] FCA 1214 (29 October 2009).txt	chamberlain v rg h investment pty limited matter hardy bros earthmoving pty limited liq 2009 fca 1214 29 october 2009 last updated 6 november 2009federal court australiachamberlain v rg h investment pty limited matter hardy bros earthmoving pty limited liq 2009 fca 1214corporations application 477 2b ofcorporations act 2001 cth act approvalnunc pro tuncof two litigation funding agreement creditor liquidator whether liquidator adequately explained omission seek approval agreement entered delay remedying omission application unders 564of act order funding creditor paid full monies recovered result funding agreement main creditor proof debt rejected liquidator pending proceeding creditor supreme court new south wale establish entitlement premature court deal application unders 564at stage corporation act 2001 cth s 477 2b 479 3 564 1322 4 matter hardy bros earthmoving pty limited liquidation acn 051 066 669 christopher mel chamberlain v rg h investment pty limited acn 000 599 477 deputy commissioner taxationnsd 820 2009lindgren j29 october 2009sydneyin federal court australianew south wale district registrygeneral divisionnsd 820 2009in matter hardy bros earthmoving pty limited liquidation acn 051 066 669 christopher mel chamberlainplaintiffrg h investment pty limited acn 000 599 477 first defendantdeputy commissioner taxationsecond defendantjudge lindgren jdate order 29 october 2009where made sydneythe court order proceeding stood wednesday 4 november 2009 9 30am note settlement entry order dealt order 36 federal court rule text entered order located using esearch court website federal court australianew south wale district registrygeneral divisionnsd 820 2009in matter hardy bros earthmoving pty limited liquidation acn 051 066 669 christopher mel chamberlainplaintiffrg h investment pty limited acn 000 599 477 first defendantdeputy commissioner taxationsecond defendantjudge lindgren jdate 29 october 2009place sydneyreasons judgmentintroductionthe plaintiff christopher mel chamberlain mr chamberlain liquidator hardy bros earthmoving pty limited liq company mr chamberlain entered two agreement second defendant deputy commissioner taxation dct mr chamberlain funded indemnified adverse cost order dct order enable mr chamberlain pursue proceeding 6867 2004 equity division supreme court new south wale transaction proceeding result prosecuting proceeding mr chamberlain recovered money would otherwise available unsecured creditor liquidation company mr chamberlain applies approvalnunc pro tuncunders 477 2b thecorporations act 2001 cth act making two agreement dct declaration unders 1322 4 act agreement invalid reason fact time mr chamberlain entered lacked court approval unders 477 2b anda direction unders 479 3 act justified entering two agreement different order mr chamberlain seek order unders 564of act dct given advantage unsecured creditor company advantage sought dct paid surplus fund remaining payment priority debt claim order prescribed bys 556of act 100 dct claim proved winding surplus le 100 amount claim entire surplus first defendant rg h investment pty limited rgh claim unsecured creditor company opposes making order unders 564 dct appeared hearing take active role m bryant solicitor appeared robert hardy danny hardy evelyn hardy see indicated client objection granting relief sought excused attendance backgroundon 21 february 2002 company ordered wound supreme court new south wale proceeding 5901 01 equity division court winding proceeding mr chamberlain partner alan nicholls appointed liquidator company mr nicholls subsequently resigned liquidator resignation take effect 20 july 2007 9 july 2007 supreme court filled vacancy occur 20 july 2007 appointing mr chamberlain liquidator unders 473 7 act business company earthmoving excavation company corporate vehicle member hardy family director member company robert hardy danny hardy evelyn hardy director secretary company lynette hardy jennifer hardy company entered two series transaction effect reducing company asset first transaction involved formation contribution company non resident non complying superannuation fund first transaction part first transaction company borrowed money director paid money sole use benefit personally second transaction involved transfer asset certain liability company related person partnership hardy bros civil construction pty ltd hbcc hardy bros nominee pty limited hbn partnership divesting company asset le fair market value fair market value calculated alan week partner deloitte touche tohmatsu chartered accountant 5 877 000 mr week calculated liability assumed partnership 3 636 000 company asset therefore transferred 2 241 000 le fair value first transaction hardy international super fundthe non complying superannuation fund styled hardy international super fund company borrowed 2 500 000 director contributed fund company claimed amount tax deduction dct allow deduction issued amended notice assessment company follows income tax year ended 30 june 1999 553 044 97income tax year ended 30 june 2000 636 762 56income tax year ended 30 june 2001 110 466 00total 1 300 273 53this total 1 300 273 53 amount dct proof debt winding amount include interest dct seek amend proof debt claim interest surplus remaining unsecured creditor paid admitted debt case 28 september 2009 interest 1 034 000 would claimed dct making total principal interest date 2 334 273 53 second transaction restructureby second transaction partnership took asset company 1 april 2001 achieved restructure restructure asset transferred historical cost accordance company financial statement 31 march 2001 amount 104 571 ascribed company goodwill consideration transfer partnership assumed responsibility company liability recorded financial statement 31 march 2001 mentioned earlier according mr week estimate undervalue 2 241 000 dividend 350 000following restructure company net asset 350 016 00 asset comprised cash 16 representing company issued capital 350 000 representing retained profit 30 june 2000 24 805 72 b operating profit year ended 30 june 2001 325 194 28 2 july 2001 director resolved company declare dividend 350 000 payable holder c class share company part restructure hbcc held one c class share capital company accordingly sum 350 000 paid hbcc 22 august 2002 mr chamberlain demanded repayment sum hbcc hbcc repaid instalment period 9 december 2002 22 april 2004 transaction proceedingas result investigation first transaction second transaction mr chamberlain obtained legal advice various course action available company liquidator based advice 21 december 2004 company commenced transaction proceeding first second defendant two company hbcc hbn member partnership third fourth fifth sixth defendant director lynette hardy hardy seventh twelfth defendant company accountant accountant transaction proceeding complex affidavit mr chamberlain explained nature claim made company liquidator follows restructure entered time company officer knew ought known liability outstanding whether contingent otherwise dct cgu worker compensation pty limited cgu b circumstance existed restructure comprised alienation property intention defraud creditor within meaning section 37a theconveyancing act nsw 1919 c restructure constituted uncommercial transaction insolvent transaction void transaction within meaning ofsections 588fcand588feof thecorporations act cth hardy officer company breached fiduciary duty duty care diligence duty act good faith duty use position detriment company e hardy officer company allegedly advanced monies company order fund contribution hardy international super fund director loan outstanding time restructure part restructure director loan repaid liquidator alleged repayment director loan constituted unfair preference within meaning ofsections 588fa 588fcand588feof thecorporations act cth f accountant provided advice relation hardy international super fund restructure breach duty care company liable accessory breach duty director settlement transaction proceedingby term settlement dated 20 november 2008 transaction proceeding settled time shortly prior listed hearing four week set aside hearing november december 2008 first sixth defendant hbcc hbn hardy agreed pay plaintiff 2 200 000 plus cost agreed assessed cost agreed 500 000 total sum 2 700 000 paid way 500 000 within 30 day execution deed settlement release 600 000 within 90 day execution document balance equal monthly instalment 60 000 hardy admitted proof liquidation amount 375 000 judgment entered plaintiff accountant 400 000 also ordered pay plaintiff cost proceeding agreed assessed cost agreed 193 000 accordingly total amount payable accountant 593 000 funding indemnitiesprior recovery settlement amount fund available winding approximately 450 000 made follows 350 000 recovered hbcc referred 17 19 b 20 000 recovered desmond construction pty ltd c 8 019 76 payroll tax refund recovered commissioner state revenue wollongong 67 929 92 recovered cgu according mr chamberlain may 2007 monies exhausted carrying step winding mr chamberlain therefore approached dct time dct creditor submitted proof debt mr chamberlain enquired dct funding transaction proceeding recalled company commenced 21 december 2004 indemnifying adverse cost order time mr chamberlain aware damage claim company rgh kemp strang acted rgh mr chamberlain say raised possibility rgh funding transaction proceeding kemp strang offer funding indemnity forthcoming mr jdm graham kemp strang give different account event give detailed account meeting m kp farmer solicitor mr chamberlain effect mr graham evidence recollection funding rgh requested made detailed note conversation m farmer matter raised would accordance practice include reference note included reference mr graham state however m farmer told mr chamberlain sought funding pursue transaction proceeding dct awaiting reply dct first indemnity dated 8 october 2007 dct agreed indemnify mr chamberlain respect funding maximum sum 350 000 inclusive gst first indemnity provided amount paid expended included unlimited indemnity dct respect cost order made mr chamberlain second indemnity dated 18 september 2008 second indemnity dct undertook indemnify mr chamberlain respect funding maximum sum 198 665 47 inclusive gst payable progressively second indemnity also contained indemnity cost order made mr chamberlain subject limit 1 973 400 first indemnity second indemnity mr chamberlain agreed respect amount recovered would apply unders 564of act order dct receive priority second indemnity say distribution amount recovered received liquidator neither indemnity spelled nature extent priority mr chamberlain required seek favour dct dct fact funded mr chamberlain extent 266 286 77 prosecute transaction proceeding mr chamberlain reimbursed dct sum mr chamberlain expressed opinion affidavit dct assumed significant risk entering first indemnity second indemnity including risk substantial cost mr chamberlain pursuing transaction proceeding exposure possible adverse cost order transaction proceeding party represented solicitor senior junior counsel retained various expert transaction proceeding fixed four week hearing november december 2008 result transaction proceedingannexed reason mr chamberlain summary receipt payment liquidator amount 1 600 803 00 held cash bank increased 1 095 000 receives monthly instalment 60 000 hardy 15 june 2009 paid 1 605 000 total liability 2 700 000 rate 60 000 per month take 19 month pay remaining 1 095 000 mr chamberlain say three unsecured creditor lodged proof debt winding dct 1 300 273 53the director 375 000 00rgh 2 295 008 00it noted director robert hardy evelyn hardy danny hardy lodged proof debt 375 000 according term settlement transaction proceeding dated 20 november 2008 hardy director lynette hardy admitted proof liquidation sum see 26 6 november 2008 rgh lodged proof debt dct creditor lodged proof debt plaintiff winding proceeding cgu transpired creditor fact indebted company 67 929 92 see 28 director lodge proof debt 375 000 2 march 2009 noted earlier dct claim interest fall considered surplus subject dct seek priority distribution unders 564for sum 1 300 273 53 referred 13 14 proof debt rgh claim interest unders 563bof act claimed debt 2 295 008 mr chamberlain admitted proof debt dct director 5 february 2009 disallowed rgh rgh claimthe circumstance give rise rgh claim concern construction dam property orange 1999 company constructed dam work completed august 1999 16 august 2004 rgh commenced proceeding technology construction list supreme court new south wale construction list proceeding geolyse pty limited geolyse parson brinckerhoff australia pty limited ppk neither defendant association company hardy geolyse consulting engineer engaged rgh provide design work supervision associated construction dam ppk geotechnical engineer retained rgh carry geotechnical investigation site time commencement construction list proceeding company wound liquidator appointed 18 august 2006 supreme court granted rgh leave unders 471bof act proceed company ordered company added third defendant ordered step taken enforce judgment company without liquidator informed without leave supreme court geolyse wished plead proportionate liability pursuant 109zj theenvironmental planning assessment act1979 nsw 20 december 2006 company filed submitting appearance geolyse ppk filed defence pleading 190zj company filed submitting appearance rgh amended summons dated 20 may 2006 made allegation company however 27 march 2007 rgh filed amended summons included claim company based allegation made geolyse defence apportionment claim amended summons served company june 2008 claim made rgh geolyse ppk settled mediation construction list proceeding discontinued 7 july 2008 sum 2 295 008 claimed rgh proof debt winding company balance remaining deduction 730 000 received geolyse ppk part rgh settlement company 17 october 2008 rgh filed notice motion seeking leave file second amended summons plead cause action company tort obtained leave second amended summons claim rgh suffered loss damage consequence company allegedly breached obligation owed rgh contract tort respect construction dam 20 october 2008 company filed notice motion seeking leave file defence affidavit take step defend claim made 6 november 2008 rgh lodged proof debt mr chamberlain noted earlier disallowed notice rejection dated 5 february 2009 interlocutory process filed 17 february 2009 winding proceeding rgh sought order rejection proof debt reversed proof debt interlocutory proceeding 23 february 2009 rgh filed notice motion seeking order proof debt interlocutory proceeding entered construction list heard construction list proceeding notice motion interlocutory process listed hearing hammerschlag j construction list 27 february 2009 honour ordered proof debt interlocutory proceeding transferred construction list heard construction list proceeding evidence proceeding evidence honour rejected company submission would appropriate proof debt interlocutory proceeding remain corporation list case managed judge list construction list proceeding stayed apparently company obtained leave file defence affidavit take step defend claim construction list proceeding proof debt interlocutory proceeding set 10 day hearing commencing 23 november 2009 notional winding scenariosmr chamberlain compared likely dividend unsecured creditor three scenario scenario 1 potential dividend date winding order scenario 2 potential dividend assuming dct given priority unsecured creditor admitted treated equally scenario 3 potential dividend assuming dct paid primary debt priority remaining two unsecured creditor rgh director admitted full scenario 1at time making winding order 21 february 2002 would dividend payable unsecured creditor company nominal asset 16 liability 3 280 526 amount said due dct 2 982 347 cgu 298 178 subsequently dct reduced amount seeking prove cgu found creditor nonetheless would still dividend scenario 2if funding indemnity adverse cost order forthcoming dct mr chamberlain would assumed risk transaction proceeding would either discontinued settled transaction proceeding best term available b sought funding commercial litigation funder transaction proceeding discontinued settled mr chamberlain view dividend would paid unsecured creditor allowing cost winding transaction proceeding funded litigation funder mr chamberlain experience term arrangement would involved disgorgement 40 50 net proceeds litigation litigation funder mr chamberlain pursue either b dct agreed provide funding indemnity adverse cost order without claiming proportion net proceeds litigation dct afforded priority debt three creditor admitted prove equally winding mr chamberlain estimate three creditor would receive dividend approximately 60 cent dollar calculation follows est available fund distribution present day 2 400 000 00ato principal claim present day 1 300 273 53hardy bros claim present day 375 000 00rgh claim present day 2 295 008 00total unsecured creditor claimed 3 970 281 53dividend unsecured creditors60 scenario 3mr chamberlain state dct receives advantage principal claim 1 300 273 53 remaining creditor would mr chamberlain estimate receive dividend approximately 41 cent dollar calculated follows est available fund distribution present day 2 400 000 00less ato principal claim present day priority 1 300 273 53funds available unsecured cred 1 099 726 47hardy bros claim present day 375 000 00rgh claim present day 2 295 008 00total unsecured creditor claimed 2 670 008 00dividend unsecured creditors41 noted earlier dct prove interest dct entitled unsecured creditor paid full surplus available mr chamberlain rejection rgh proof debt upheld expects remaining unsecured creditor paid full finally mr chamberlain state even allowing advantage favour dct debt prosecution transaction proceeding created pool fund approximately 1 000 000 taking account cost expense winding would otherwise available creditor solicitor director indicated object dct given priority extent 1 300 273 63 considerationsection 477 2b actsection 477 2b act provides except approval court committee inspection resolution creditor liquidator company must enter agreement company behalf example without limitation lease charge without limiting paragraph b term agreement may end b obligation party agreement may according term agreement discharged performance 3 month agreement entered even term may end obligation may discharged within 3 month section 477 2b implies time applying obtaining court approval prior liquidator making agreement question first indemnity second indemnity agreement falling within description contained 477 2b mr chamberlain therefore prohibited entering except court approval relevantly approval resolution creditor established however approval may grantednunc pro tunc seeempire aust nominee pty ltd liq v vince 2000 vsc 324 2000 35 acsr 167 stewart matter newtronics pty ltd 2007 fca 1375 newtronics mr chamberlain submits present case strong one giving approval 477 2b date indemnity entered dct creditor proved winding could resolved approve mr chamberlain making two agreement however mr chamberlain explanation delay seeking approval quite unsatisfactory say although aware necessity seeking court approval dct requested defer making application conducting review funding agreement entered liquidator required time carry review poor explanation troubling one first mr chamberlain aware prohibition yet contravened knowingly twice second mr chamberlain seems treated dct direction overriding statutory mandate accepted rendered inapplicable reason dct known creditor third mr chamberlain explained length delay proceeding commenced 10 august 2009 fourth difficult understand explanation proffered could apply first indemnity second indemnity mr chamberlain aware occasion prohibition contained 477 2b unlikely would accepted face value statement dct date second indemnity carrying second review dct still carrying review carrying eleven month earlier grant approval sought satisfied original failure seek approval delay seeking remedy omission adequately explained proceeding stood give mr chamberlain opportunity supplementing explanation affidavit evidence officer dct otherwise may advised section 1322 4 act provides subject following provision section without limiting generality provision act court may application interested person make following order either unconditionally subject condition court imposes order declaring act matter thing purporting done proceeding purporting instituted taken act relation corporation invalid reason contravention provision act provision constitution corporation b c order extending period act matter thing instituting taking proceeding act relation corporation including order extending period period concerned ended application order made may make consequential ancillary order court think fit approvalnunc pro tuncis given appropriate also order extending period applying approval date giving approvalnunc pro tunc order declaring making agreement without approval place time render agreement invalid reason liquidator contravention 477 2b consideration relevant grant withholding approval 477 2b discussed several case see example newtronicsat 26 case gordon j helpfully identified number relevant consideration repeat factor favour granting approval present case first indemnity second indemnity promised provide substantial benefit unsecured creditor known fact done b neither two creditor director rgh oppose application c noted time time dct creditor submitted proof debt dct resolved approve mr chamberlain executing first indemnity second indemnity court approval would necessary subject mr chamberlain providing satisfactory evidence explaining omission obtain approval prior making two agreement may need include affidavit evidence relevant officer dct propose grant approvalnunc pro tuncthat seek make ancillary order referred section 564rgh primary submission application 564 premature await outcome hearing proof debt interlocutory proceeding construction list proceeding commence supreme court 23 november 2009 secondary position rgh accepts dct afforded priority advantage contends priority advantage reference fund currently mr chamberlain disposal cash bank 1 600 803 rather mr chamberlain may expect taken account full amount rgh claim debt 2 295 008 section 564 act provides winding property recovered indemnity cost litigation given certain creditor protected preserved payment money giving indemnity creditor b expense relation creditor indemnified liquidator recovered court may makesuch order deems respect distribution propertyand amount expensesso recovered view giving creditor advantage others consideration risk assumed emphasis instate bank new south wale v brown 2001 nswca 223 2001 38 acsr 715 new south wale court appeal approved following statement brownie j inhousehold financial service pty ltd v chase medical centre pty ltd 1995 18 acsr 294 296 7 last word 564 provide authority accent need ass risk run indemnifying creditor whose benefit application made authority show also appropriate look sum recovered value property recovered failure creditor provide indemnity proportion debt indemnifying creditor debt public interest encouraging creditor provide indemnity enable asset recovered generally totality circumstance tendency recent time adopt liberal approach favour indemnifying creditor case spigelman cj indicated 40 exercise statutory power give funding creditor 100 recovery rare honour indicated case 100 recovery awarded indemnifying creditor particular feature chief justice discussed accept rgh submission premature application 564 determined stage consideration lead conclusion set following paragraph first noted known certainty final size fund available unsecured creditor although liquidator cash hand 1 600 803 00 whether amount augmented sum 1 095 000 next nineteen month bringing amount available 2 695 803 monthly payment 60 000 hardy depends upon whether default mr chamberlain unsecured promise make payment second mr chamberlain seek order disturbing priority provided 556 1 act amount remuneration legal cost disbursement expense defending proof debt interlocutory proceeding construction list proceeding known proceeding heard determined amount would apparently enjoy priority unsecured creditor third court position determine relativity dct debt unsecured creditor long proof debt interlocutory proceeding construction list proceeding remain undetermined rgh may fail completely proceeding therefore creditor may creditor full extent claim 2 295 008 plus interest plus cost supreme court proceeding may prove creditor intermediate amount fourth appears urgency touching determination application fifth although affidavit evidence explaining mr chamberlain delay seeking court approval 477 2b doubt prepared admitted early date fact hearing likely take place two three week commencement hearing supreme court 23 november 2009 mr chamberlain approach treat sum 1 095 000 cash hand recovered result funding provided dct note passing proposed advantage dct entitled instalment paid paid remainder debt 1 300 273 63 1 095 000 205 273 63 cash hand leaving 1 395 529 37 cash hand satisfy mr chamberlain remuneration cost expense admitted creditor application determined order sought mr chamberlain made apparently would immediately pay 1 300 273 63 dct leaving 300 529 37 cash bank addition would hardy unsecured promise pay 1 095 000 19 month let assumed hardy paid none monthly instalment rgh total success supreme court proving creditor 2 295 008 plus interest plus cost case would transpire mr chamberlain remuneration cost expense proceeding significantly defending supreme court proceeding would almost certainly absorb sum 300 529 37 amount together rgh legal cost expense associated supreme court proceeding would certainly circumstance hypothesised neither rgh director would receive anything would transpire dct would 100 recovery doubt possible decision two supreme court proceeding reserved event possibility appeal new south wale court appeal nonetheless position least somewhat clearer present proceeding adjourned first date deal supplementary evidence relation 477 2b referred date following conclusion hearing supreme court many unknown present enable court decide mr chamberlain application 564 confidence order would conclusionfor reason proceeding adjourned first instance wednesday 4 november 2009 time evidence addressing mr chamberlain delay filed served certify preceding ninety eight 98 numbered paragraph true copy reason judgment herein honourable justice lindgren associate dated 4 november 2009counsel plaintiff mr j dawsonsolicitor plaintiff shaw reynolds bowen gerathycounsel first defendant mr b j cole qc mr b dockersolicitors first defendant kemp strangsolicitor second defendant mr acheampong australian taxation officesolicitor robert hardy danny hardy evelyn hardyms bryant hwl ebsworth lawyersdate hearing 30 september 2009date judgment 29 october 2009
HGC Admin Services PL v Knox CC [2004] VCAT 2083 (19 October 2004).txt	hgc admin service pl v knox cc 2004 vcat 2083 19 october 2004 last updated 9 november 2004victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p1577 2004applicanthgc admin service p lresponsible authoritycity knoxsubject land23 25 scoresby road bayswaterwhere heldmelbournebeforehoward terrill memberhearing typehearingdate hearingwednesday 13thoctober 2004date ordertuesday 19thoctober 2004citation 2004 vcat 2083orderthe request review decision responsible authority refuse grant permit extension adult bookshop allowed responsible authority directed issue permit following condition amended plans1 development commences amended plan satisfaction responsible authority must submitted approved responsible authority approved plan endorsed form part permit plan must drawn scale 1 100 dimension three copy must provided plan must generally accordance plan submitted application modified show 1 1 fully dimensioned elevation plan proposed extended adult sex book shop north west 1 2 additional car parking space within front setback expanded club x shop deleted 1 3 front roller door area expanded club x shop shall glazed window allow improved visual interest store scoresby road window shall screen behind allow frontage display window 1 4 markout side wall car park space standard width remove standing sign wall general2 development shown endorsed plan must altered without written consent responsible authority 3 development started must continued completed satisfaction responsible authority car parking areas4 development commences area set aside parking vehicle access lane shown endorsed plan must 4 1 line marked indicate car space access lane satisfaction responsible authority 5 parking area access lane must kept available purpose time maintaining side access6 property owner shall make available time driveway adjacent south side property 23 scoresby rd provides access scoresby rd allow 2 way flow rear parking area 25 scoresby rd shall boundary fence barrier erected 23 25 scoresby rd bayswater advertising signage7 except may permitted planning scheme advertising sign flag bunting like device shall displayed site without permission responsible authority permit expires8 permit expire one following circumstance applies 8 1 development started within two year date permit 8 2 development completed within four year date permit responsible authority may extend period referred request made writing permit expires within three month afterwards also permit shall expire permit holder relinquishes fails renew lease club x warehouse 3 23 howard terrillmemberappearances applicantmr peter jewell town planning consultant called mr andrew carr traffic engineer grogan richards witness responsible authoritymr greg kent town planner reasonsapplication review1 application brought undersection 77of theplanning environment act1987
T Gradara v De Marchi & Associates [1992] VLPT 28 (21 December 1992).txt	778 1992 mr gradara v de marchi associate section 38 0 1 legal profession practice act identical issue determined magistrate court proceeding client solicitor estoppel longer dispute determination registrar solicitor board melbourne 778 1992 matter legal profession practice act 1958 act matter de marchi associate solicitor matter referral hearing registrar solicitor board dispute solicitor mr tarcisio gradara client reason decision registrar solicitor board given 21 december 1992 mr gradara suffered personal injury struck motor cycle mr de marchi acted mr gradara claim county court seeking damage personal injury mr de marchi also brought property damage claim mr gradara magistrate court defended motor cyclist counter claim property damage mr gradara satisfied way mr de marchi handled case commence dealing two relatively minor matter raised mr gradara firstly ordered pay 250 00 cost defendant respect chamber summons county court say mr de marchi done job properly order would made secondly mr gradara say pay mr de marchi cost 955 00 respect answer interrogatory affidavit document care skill responsibility county court proceeding say mr de marchi 2 prepare answer interrogatory accordance instruction knowledge affidavit document mr de marchi exercise care skill responsibility mr de marco submitted mr gradara estopped raising two issue already determined magistrate court separate proceeding mr gradara mr de marchi referred administration territory papua new guinea v guba doriga 1973 47 l j r 621 1954 properly constituted land board heard dispute ownership land port moresby competing claimant clan descendant administration board found favour administration appropriate entry made land register right appeal supreme court papua new guinea appeal lodged 19 66 substantially clan decendants claimed substantially land properly constituted land title commission appeal single judge full court supreme court papua new guinea appeal brought high court australia administration argued issue ownership finally determined 1954 land board high court agreed berwick c j concluded page 640 opinion decision board binding party privy upon notified hearing opportunity make claim extent upon land title commission considering claim land one party privy one party person opportunity claiming heard page 663 gibbs j explained estoppel result 3 many decision doctrine estoppel extends decision tribunal jurisdiction decide finally question arising party even called court jurisdiction derived frpm statute submission party temporary authority decide matter ad hoc satisfied mr gradara raised substantially two issue proceeding magistrate court mr de marchi decided magistrate mr r tuppen consequently estopped raising issue present proceeding previous case said registrar solicitor board jurisdiction hear determine dispute dispute left hear issue determined court taxing master explanation applies principle estoppel without using language estoppel turn major issue proceeding brought county court seeking damage personal injury mr gradara answering interrogatory numbered 13 described circumstance injured follows 13 interrogatory 13 set walk southerly direction along western footpath derby street intention crossing street walking easterly direction along footpath gower street purpose go car parked north east approached derby street gould see car parked footpath gower street therefore changed mind decided cross derby street saw traffic approaching either direction crossed derby street walking straight line right 4 angle direction street came close car parked along eastern side order find space two car changed direction walked southerly direction beside parked car close collision happened b see defendant vehicle time crossed derby street crossing crossed unable answer question mr gradara subsequently gave evidence hearing property damage claim mr p clothier magistrate court injured changing wheel car evidence contradicted statement made mr gradara police contradicted information set motor accident board claim form lodged directly mr gradara shortly collision contradicted answer interrogatory sworn mr gradara personal injury claim led mr gradara convicted perjury county court hearing mr gradara acknowledged signed answer interrogatory denied gave instruction mr de marchi accorded answer given interrogatory 13 mr gradara also said gave evidence changing wheel car mr de marchi advised mr gradara son robert gradara also gave evidence mr de marchi advised mr gradara give evidence effect common ground mr gradara suffered serious injury collision appeared mr gradara know little occurred prior collision said one stage remembered crossing road seem remember anything else mr gradara first person hearing use word scenario said 5 worked three four different scenario occurred surprised mr gradara tried work mind possible way collision could occurred mr gradara also prepared several plan set pictorial form possible scenario leading collision satisfied mr gradara instructed de marchi associate knew little anything abput collision also satisfied explained possible scenario de marchi associate provided various plan firm doubt discussed scenario length mr de marchi asked many question mr de marchi mr allan de marchi associate effort piece together circumstance leading collision response taken account preparing answer interrogatory also clear mr de marchi always concerned accuracy instruction gave specific warning employee solicitpr mr allan mr patmore counsel appeared mr gradara hearing property damage claim take care lacked confidence accuracy instruction mr de marchi emphatically denied advised mr gradara give evidence changing wheel car mr de marchi say spoken mr gradara many occasion explained difficulty proving circumstance leading collision proving negligence part motor cyclist mr de marchi said first heard possible scenario changing wheel car mr 6 patmore rang immediately hearing say mr gradara apparently spur moment given evidence changing wheel car struck motor cycle accept mr de marchi evidence certainly accept evidence mr gradara son although may mi understood many comment made mr de marchi discussing weakness case must add mr gradara unimpressive witness appeared totally obsessed case unable think clearly determined pay cost mr de marchi son robert gradara gave evidence duress said father wanted say indeed use leading question comment mr gradara went way give son evidence basis upon prepared make order favour mr gradara make following order 1 dispute client solicitor dismissed 2 client pay 1000 00 solicitor cost hearing 3 publication report whole part proceeding name information may identify party proceeding prohibited order permitting publication made registrar solicitor board may make order 7 time appropriate application made one party proceeding registrar solicitor board
Ricciuti and Steitz (Child support) [2020] AATA 1407 (6 April 2020).txt	ricciuti steitz child support 2020 aata 1407 6 april 2020 last updated 21 may 2020ricciuti steitz child support 2020 aata 1407 6 april 2020 division social service child support divisionreview number 2020 mc018294applicant mr ricciutiother party child support registrarms steitztribunal member p sperlingdecision date 6 april 2020decision decision review isaffirmed catchwordschild support particular administrative assessment determination adjusted taxable income decision affirmednames used published decision pseudonym reference appearing square bracket indicate information omitted decision replaced generic information identify involved individual required bysubsections 16 2ab 16 2ac thechild support registration collection act 1988 reason decisionbackgroundthis review concern income used mr riccuiti child support assessment 1 september 2017 mr ricciuti m steitz parent child born 26 january 2004 child support assessment place prior 1 september 2017 new child support period commenced 1 september 2017 23 july 2017 department decided apply provisional income mr ricciuti 2016 17 financial year 59 002 child support assessment 1 september 2017 lodged 2016 17 income tax return 14 november 2018 mr ricciuti objected decision ground department calculated provisional income past wage objection officer disallowed objection 28 january 2019 mr ricciuti made application tribunal review objection decision application heard 6 april 2020 mr ricciuti m steitz participated hearing via conference telephone addition oral evidence tribunal regard document provided department page 1 38 issuethe statutory provision relevant review found within child support law particular thechild support assessment act 1989 assessment act thechild support assessment regulation 1989 regulation force time issue matter provisional income used mr ricciuti child support assessment 1 september 2017 considerationthe rate child support payable liable parent usually based administrative assessment part 5 assessment act requires application statutory formula take account factor number child level care provided adjusted taxable income parent adjusted taxable income defined section 43 assessment act composed taxable income last relevant income year plus reportable fringe benefit target foreign income total net investment loss specified tax free pension benefit reportable superannuation contribution section 5 assessment act defines last relevant year income relation child support period last year income ended start period start child support period case 1 september 2017 last relevant year income therefore 2016 17 dispute mr ricciuti lodged 2016 17 income tax return 1 september 2017 hearing told tribunal lodged tax return september 2017 undergone ankle reconstruction surgery around time therefore unable work income declare ato said exactly sure surgery long spent rehabilitating home therefore unable work also told tribunal know required lodge tax return child support assessment even earn income hearing mr ricciuti confirmed lodged income tax return financial year 2016 17 2017 18 2018 19 november 2019 set department document page 34 said lodge tax return prior income low know received debt notice department regarding child support assessment summary said problem paying child support disagrees amount owing based incorrect income amount hearing m steitz told tribunal received phone call department advise mr ricciuti child support assessment increased lodged tax return previous year told earlier year taxable income used determine mr ricciuti provision income 1 september 2017 said sometime 2018 cancelled child support collection mutual agreement mr ricciuti repaying outstanding child support debt using money pay orthodontic work child summary m steitz said know whether mr ricciuti working 2016 17 income financial year also said know whether mr ricciuti incapacitated therefore unable submit 2016 17 tax return time section 58 assessment act allows child support registrar determine person adjusted taxable income lodged income tax return last relevant year income follows subsection 58 2 allows registrar use available information work reasonable approximation person income subsection 58 3 provides person adjusted taxable income previous year income multiplied ati indexation factor subsection 58 4 allows registrar use greater amount worked multiplying parent adjusted taxable income recent year income assessed ato ati indexation factor amount equal two third annualised male total average weekly earnings mtawe relevant june quarter relation child support period andsubsection 58 5 permit registrar use amount least two third annualised mtawe figure section 58a assessment act state provisional income determined section 58 must amended immediately child support registrar ascertains person adjusted taxable income last relevant year income tribunal note case registrar used provision subsection 58 4 mr ricciuti determine provisional income 2016 17 59 002 follows recent taxable income available 56 516 2013 14 financial year indexed ati indexation factor 1 004 generated provisional income 59 002 relevant mtawe figure period 1 september 2017 48 308 indexed income 59 002 greater mtawe figure 48 308 accordance subsection 58 4 greater two figure 59 002 applied provisional income 2016 17 tribunal find absence information regarding mr ricciuti income 2016 17 available time provisional income figure 59 002 period commencing 1 september 2017 correct accordance subsection 58 4 assessment act consistent methodology set paragraph 18 reason tribunal find mr ricciuti lodged 2016 17 2015 16 income tax return 23 july 2017 registrar determined 2016 17 provisional income amount department document show 4 may 2018 nine month later mr ricciuti first contacted department provided income estimate 23 287 2016 17 tribunal note department applied income estimate 4 may 2018 earlier tribunal therefore turned question whether income estimate provided mr ricciuti 4 may 2018 could taken income estimate period 1 september 2017 3 may 2018 tribunal note parent adjusted taxable income assessed pursuant section 58 assessment act information component adjusted taxable income later becomes available subsection 58a 2 imposes limitation retrospective amendment assessment child support regard information later assessed amount lower amount determined section 58 assessment act case mr ricciuti accordance subregulation 7b 1 regulation lower amount applied retrospectively administrative assessment child support parent unable provide information adjusted taxable income registrar time particular assessment made time one following applied parent know application assessment made accepted parent serious illness injury parent detention imprisonment parent resided remote location made difficult contact registrar exceptional circumstance prevented parent providing information hearing mr ricciuti told tribunal around time consideration surgery meant unable work therefore earn income said therefore think lodge tax return working tribunal note department document explicitly acknowledge mr ricciuti advised department decision apply provisional income 2016 17 financial year 59 002 either writing verbally original decision maker page 18 basis tribunal accepts mr ricciuti may aware decision debt raised arrears child support notwithstanding tribunal also note mr ricciuti assessed previous year basis income estimate lodged income tax return therefore tribunal view person child support assessment mr ricciuti aware ongoing obligation lodge tax return regardless income addition evidence mr ricciuti provided income estimate department 2016 17 prior 4 may 2018 even though known necessary order update child support assessment mr ricciuti acknowledged finally lodge 2016 17 tax return november 2019 year required lodged evidence tribunal satisfied mr ricciuti serious illness injury physically prevented lodging 2016 17 tax return time tribunal persuaded reason outlined mr ricciuti exceptional circumstance prevented providing information regarding 2016 17 income department lodging 2016 17 tax return accordingly subsection 58 4 assessment act tribunal find 59 002 reasonable approximation mr ricciuti adjusted taxable income 2016 17 applied child support assessment 1 september 2017 decisionthe decision review affirmed
R v Clarke [2006] QCA 356 (15 September 2006).txt	r v clarke 2006 qca 356 15 september 2006 last updated 15 september 2006supreme court queenslandcitation r v clarke 2006 qca 356parties rvclarke andrew charles applicant file ca 136 2006dc 1328 2006dc 1329 2006division court appealproceeding sentence applicationoriginating court district court brisbanedelivered 15 september 2006delivered brisbanehearing date 31 august 2006judges mcmurdo p jerrard ja atkinson jseparate reason judgment member court concurring order madeorder application leave appeal sentence dismissedcatchwords criminal law appeal new trial inquiry conviction appeal new trial appeal sentence appeal convicted person application reduce sentence refused generally applicant pleaded guilty indictment charging 10 offence burglary stealing breaking entering premise stealing entering premise intent commit indictable offence applicant also pleaded guilty possession house breaking implement circumstance aggravation possession house breaking implement unlawful use motor vehicle dangerous operation motor vehicle lengthy criminal history dishonesty offence sentenced four half year imprisonment applicant attempted address opiate addiction support mother girlfriend whether sentence manifestly excessive circumstance whether sentence could structured provide supervision upon releasecounsel applicant appeared behalfc w heaton respondentsolicitors applicant appeared behalfdirector public prosecution queensland respondent 1 mcmurdo p application leave appeal sentence refused reason given jerrard ja 2 jerrard ja 10 may 2006 mr clarke pleaded guilty district court indictment charging 10 count alleging offence burglary stealing breaking entering premise stealing entering premise intent commit indictable offence also pleaded guilty possession house breaking implement circumstance aggravation possession house breaking implement unlawful use motor vehicle dangerous operation motor vehicle likewise pleaded guilty three summary offence significant charge possession house breaking implement offence pleaded guilty committed 5 october 2004 17 april 2005 sentenced four half year imprisonment seek leave appeal alleging sentence manifestly excessive 3 mr clarke quite lengthy criminal history first conviction dishonesty 13 june 1990 breaking entering intent placed probation previously convicted 19 october 1988 offence relating dangerous drug similar conviction ensuing 18 year 4 likewise repeatedly convicted period offence dishonesty mostly relating unlawfully gaining entry premise stealing 7 may 1992 convicted nine charge inala magistrate court sentenced six month imprisonment offence committed april may 1992 next sentenced 14 august 1992 brisbane district court 17 similar offence plus one count unlawfully using motor vehicle one false pretence offence committed 1990 1991 sentenced total three year imprisonment appeared brisbane district court 16 september 1994 sentenced total 15 charge breaking entering dwelling house intent breaking entering stealing well four count receiving property two charge stealing also offence attempted breaking entering intent save two old offence committed july 1991 offence committed late march 1993 early april 1994 necessity must commenced course unlawful conduct almost immediately upon release said appeal got remission good behaviour three year sentence imposed 14 august 1992 5 sentence imposed 16 september 1994 six year imprisonment recommendation mr clarke considered parole serving two year three month severe head sentence appropriately recommended early parole date received consistent head sentence parole date later sentenced 22 october 1996 one offence breaking entering intent committed june 1991 two breaking entering stealing one committed july 1991 may 1994 sentenced head term three year eleven month concurrent six year term imposed 16 september 1994 recommended release parole 16 december 1996 6 said appeal released parole 27 november 1999 27 march 2001 sentenced brisbane district court 17 offence entering premise intent entering committing indictable offence premise committed mid december 1999 late may 2000 also dealt offence fraud unlawful use motor vehicle receiving stolen property one offence assault occasioning bodily harm committed period sentenced term imprisonment totalling four year two hundred eighty five day pre sentence custody declared time served 7 appeal record reveal whether granted parole conditional release march 2001 four year term period offending beginning october 2004 committed offence sentenced four half year 10 may 2006 therefore third time committed series property offence soon release custody commission like offence done release three year sentence imposed august 1992 release six year sentence imposed september 1994 release four year term imposed 27 march 2001 mr clarke reign offending came end 17 april 2005 committed series offence one day ineffectually attempted gain entry premise steal finally caught inside one set premise remained custody ever since 10 may 2006 learned sentencing judge ordered 388 day pre sentence custody time already served 8 learned sentencing judge remarked 10 may 2006 mr clarke needed structured supervised existence released prison reality mr clarke unlikely placed parole could recommended suspending part sentence would likely simply disadvantage mr clarke judge said mr clarke would better partly suspended sentence hanging head release observation amply justified mr clarke history offending 9 circumstance judge concluded rather impose sentence least equal greater six year sentence mr clarke previously imposed appropriate make allowance plea guilty personal matter mitigation reducing head sentence served matter included mr clarke taken step deal opiate addiction pleaded ex officio indictment support mother girlfriend circumstance head sentence imposed manifestly excessive recognised mr clarke difficulty drug addiction offending also provided protection community whether mr clarke achieves release parole supervision community depends upon effort make custody 10 mr clarke offending behaviour last release prison included repeatedly entering property owned others stealing money also quite serious offence dangerous operation motor vehicle rest community fortunate person injured stolen car later day driven particularly dangerous way various incident collided rear another vehicle roundabout briefly getting got back sped road involved cutting oncoming traffic losing control coming stop garden bed service station reversing accelerating street ultimately stoping short another stationary car drove causing driver believe mr clarke attempting push vehicle oncoming traffic ultimately driver able remove vehicle danger contacted police mr clarke stolen vehicle found abandoned later evening damaged mr clarke finger print rear passenger door interviewed 17 april 2005 could recall driving vehicle incident 11 mr clarke appeared appeal made clear complaining head sentence four half year point made occasion past released prison classified high security prisoner time release yet released without supervision asked court structure sentence would give supervision release 12 unfortunately appropriate sentence available order probation could made accompanied sentence longer 12 month imprisonment period simply short regard extensive offending mr clarke written argument urge court suspend remainder four half year sentence supervised would receive supervision suspended sentence eligible parole served two year three month four half year sentence possibility supervised released parole head sentence three year le parole date fixed unders 160b 3 thepenalties sentence act 1992 qld 1 would supervised release act force mr clarke sentenced sentence excess three year position legislation came force namely sentencing court minded recommend date release parole mr clarke must expect head sentence three year 13 mr clarke say never achieved parole past expect get released past remission sentence good behaviour still high security said long term problem heroin addiction heroin available prison reason doubt either statement establishes satisfy parole board released parole community supervision result acceptable level risk offending might require deciding reside rehabilitation centre release parole board may consider would reduce risk offending acceptable level served say three year current sentence 14 would dismiss application 15 atkinson j agree reason judgment jerrard ja order proposed 1 section 160b inserted thepenalties sentence act 1992 qld 497 thecorrective service act 2006 qld
1300770 [2013] RRTA 409 (14 June 2013).txt	1300770 2013 rrta 409 14 june 2013 last updated 23 july 20131300770 2013 rrta 409 14 june 2013 decision recordrrt case number 1300770diac reference clf2012 200127country reference sri lankatribunal member suhad kamanddate 14 june 2013place decision sydneydecision tribunal affirms decision grant applicant protection class xa visa statement decision reasonsapplication reviewthe applicant citizen sri lanka arrived australia date deleted unders 431 2 themigration act 1958as information may identify applicant may 2012 irregular maritime arrival ima applied department immigration department visa september 2012 delegate refused grant visa december 2012 applicant applied tribunal review decision basis evidence cumulative reason given tribunal concluded applicant person respect australia protection obligation affirms delegate decision relevant law included appendix 1 consideration claim evidencethe applicant age deleted 431 2 hindu tamil male national sri lanka country right enter reside country express claim arising evidence fear harmed killed sri lankan army sla criminal investigation department cid returned sri lanka tamil race imputed political opinion supporter ltte opponent sri lankan authority membership particular social group failed tamil asylum seeker returning sri lanka claim risk profile heightened scar acquired hit sla vehicle around 2008 2009 also claim fear significant harm departed sri lanka illegally support claim refers past adverse experience sri lanka delegate decisionthe delegate satisfied applicant person respect australia protection obligation refugee convention complementary protection applicant representative provided tribunal copy delegate decision record issue tribunalthe tribunal must ass whether satisfied credibility truth relevant aspect applicant claim evidence evidence satisfied applicant face well founded fear based real chance persecution involving serious harm convention reason return sri lanka tribunal satisfied owed australia protection refugee convention must consider whether owed complementary protection involves assessment whether substantial ground believing face real risk significant harm sri lankafor reason claimed arising evidence tribunal assessment informed department file relating applicant including record entry interview conducted tamilinterpreter july 2012 audio recording department interview held september 2012and conducted tamilinterpreter tribunal listened copy protection visa application form document provided support application review application tribunal assessment also informed detailed exploration applicant claim appeared person april 2013 appearance communicated assistance tamil interpreter presence representative identified limitation capacity communicate tribunal audio recording applicant tribunal hearing available tribunal also regard material available range source referred relevant consideration assessment applicant claimed circumstancesthe applicant claim tribunal accepts fisherman born town 1 north west province sri lanka together parent including father also fisherman lived worked since 2004 town 3 east village 2 north west spending roughly half year location keeping seasonal fishing pattern parent currently living family home village 2 last lived fished town 3 around april october november 2012 sibling life town 1 family able make enough money eat live reasonably happy life fishing father currently process undergoing medical procedure applicant departed sri lanka without passport boat may 2012 entering australia may 2012 first time ever deparleftted sri lanka general concern regarding claimed past adverse experienceswhile tribunal accepts aspect applicant claimed circumstance sri lanka claimed aspect impressed tribunal lacking credibility significant respect instance written statement dated september 2012 applicant identified adversely approached sla two prior occasion informed tribunal event particular second two trigger leaving sri lanka may 2012 first claimed incident occurred early april 2012 10 15 sla officer asked applicant 4 5 fisherman come hut town 3 questioned employment ltte connection one officer showed suspicion regarding applicant scar acquired around 2008 2009 hit sla vehicle applicant informed tribunal questioning scar ltte connection sla officer simply departed without anything occurring account appeared consistent written statement oral evidence department tribunal accepts applicant questioned sla occasion claim describes tribunal also accepts applicant scar acquired around 2008 2009 hit sla vehicle riding bicycle applicant claim one two day later different sla officer returned area hut located town 3 took sla camp questioning written statement oral evidence tribunal claimed slapped twice sla officer escorted sla camp occasion informed tribunal taken sla near fishing hut around 6pm sla camp around 30 minute walk away released evening around 11pm mother came camp pleaded release detained camp questioned around 15 minute got scar involved ltte sat alone around 4 hour released described experiencing verbal questioning 15 minute waiting several hour camp told tribunal nothing else happened detention released scared decided leave sri lanka noted mother told arrival australia noticed army officer looking near hut town 3 identified adverse approach family member either town 3 village 2 en route area regarding incident taken sla camp april 2012 put applicant undersection 424aa information gave entry interview july 2012 appears contradictory recorded saying folio 77 84 department file sla tortured week suspicion ltte member however interview also indicated sla asked question harm physically claiming one point interview detained week also said released night taken sla interviewer asked clarify held one week one night responded detained one night questioned home one week explained applicant information cumulatively impress tribunal internally contradictory regarding nature duration claimed detention sla camp april 2012 also suggests harmed physically contrary evidence tribunal slapped twice explained tribunal contradiction raise doubt truth applicant claimed detention sla raise concern credibility claim evidence generally offered may told department questioned one day one week stressed may confused torture experienced past asked clarify understanding torture responded refers fear sla action based information concern applicant response concern tribunal significant doubt applicant claim detained harmed sla sri lanka past claimed motivation leaving sri lanka compounding concern applicant informed tribunal despite incident family resulting fear parent continued live work location claim taken sla town 3 remaining full fishing season lasted six month claimed detention returned village 2 around time every year ie around october november 2012 evidence parent experienced direct adverse attention approach time en route village 2 arrival village 2 referred mother frightened sla officer beach town 3 looking suggestion sla officer looking connection applicant claimed profile impressed tribunal entirely speculative tribunal satisfied sla officer took adverse interest applicant mother applicant departure connection applicant claimed profile reason totality evidence including demonstrated willingness applicant parent remain location town 3 another six month without experiencing adverse encounter connection applicant claimed profile tribunal willing give applicant benefit doubt accept questioned sla one occasion fisherman near hut town 3 april 2012 tribunal satisfied approached sla second occasion april 2012 time taken sla camp slapped detained otherwise harmed sla claim tribunal satisfied applicant experienced treatment amounting serious harm contemplated bysections 91r 1 b or91r 2 act significant harm contemplated bysection 36 2a act sri lanka past reason tribunal satisfied evidence applicant adverse profile sri lankan authority including sla connection tamil race scar characteristic held time left sri lanka australia 2012 give rise real chance serious harm reasonably foreseeable future profile reasonably foreseeable futurewhile tribunal satisfied reasoned applicant adverse profile time left sri lanka australia tribunal must consider risk harm sri lanka reasonably foreseeable future relevant assessment following tamil raceit claimed applicant tamil race creates compound risk profile give imputed political opinion support linked ltte opposed sri lankan authority give rise real chance serious harm reasonably foreseeable future singularly cumulatively accepted balance circumstance submission made support applicant representative excerpt range general independent source highlight continuing tension abuse involving tamil sri lanka report form part body information taken account tribunal generalised report information determinative may await applicant reasonably foreseeable future assessment must necessarily informed also accepted applicant circumstance relevant tribunal assessment one instance april 2012 applicant together others sla officer near fishing hut town 3 convincing claim made experienced harm sri lanka connection race hit sla vehicle 2008 2009 unsure exactly occurred speculated sla vehicle intentionally hit intentionally failed assist hit tribunal considers much applicant evidence regarding motif intention whose vehicle struck speculative tribunal accepts incident occurred degree indifference disregard shown applicant occupant vehicle hit sustained scar tribunal also accepts indifference disregard shown applicant accident least part motivated tamil race however applicant gave evidence experiencing serious significant harm account race time tribunal accepts applicant seriously harmed struck vehicle 2008 2009 evidence reveals instance targeted serious harm since evidence reveals since 2004 left sri lanka may 2012 lived worked eastern north western province travelled two location several time year together parent passing least 5 government checkpoint way informed tribunal show identity documentation checkpoint travel never experienced anything beyond verbal questioning despite identity document revealing tamil indicated parent continue live home village 2 father currently receiving medical treatment told tribunal sibling life town 1 indicated family able make enough money eat live reasonably happy life fishing work sri lanka evidence family circumstance sri lanka support claim face real chance serious harm sri lanka connection tamil race tribunal also note 2010 2012 unhcr guideline excerpted appendix 2 remove presumption need collectively based international protection simply reason tamil tamil area formerly ltte control course ethnicity range factor may contribute applicant risk profile must taken account must done context accepted applicant circumstance applicant circumstance tribunal satisfied tamil ethnicity tamil male lived worked town 3 village 2 travelling location regularly singularly cumulatively give rise real chance harm amounting serious harm reasonably foreseeable future connection tamil race tribunal satisfied evidence tamil tamil male worked former ltte stronghold location east imputes applicant political opinion including political opinion linked support ltte opposed sri lankan authority applicant face real chance serious harm sri lanka reasonably foreseeable future imputed political opinion ltte supporterthe tribunal asked applicant explain think would imputed ltte supporter responded tamil scar addition representative also submitted already questioned sla number time regarding ltte link family remains fearful sla reasoned tamil race however tribunal satisfied tamil ethnicity singularly cumulatively impute applicant political opinion reasonably foreseeable future including connection ltte opponent sri lankan authority also reasoned tribunal satisfied applicant past contact sri lankan authority given reason profile political opinion imputed connection ltte opponent sri lankan authority regarding whether scar would raise risk profile face real chance serious harm imputed ltte supporter government opponent tribunal note following firstly put applicant scar since 2008 2009 account tribunal scar visible wear short wear short routinely fishing working fisherman town 3 village 2 since 2004 leaving sri lanka may 2012 evidence indicates scar seen sla past questioned sla regarding cause scar whether suggests connection ltte tribunal satisfied evidence provided questioned sla scar explained got accident bike sla accepted account without inflicting serious significant harm upon evidence reveals interacted sri lankan authority many occasion past including passing multiple checkpoint several time year including year since obtained scar leaving sri lanka may 2012 id checked sla checkpoint never evidence provided experienced anything beyond verbal questioning gave evidence ever linked ltte paramilitary group sri lanka family member link totality evidence tribunal satisfied applicant experienced serious harm imputed political opinion support ltte opposition sri lankan authority account scar tamil ethnicity tamil east factor cumulatively despite factor easily detectible time expressly known sri lankan authority tribunal satisfied evidence applicant scar tamil ethnicity link eastern province individually cumulatively impute political opinion favour ltte opposition sri lanka government give applicant profile give rise real chance serious harm sri lanka reasonably foreseeable future particular social group failed tamil asylum seekerit claimed failed asylum seeker place applicant within particular social group face real chance serious harm sri lanka also suggested imputed political opinion linked ltte failed tamil asylum seeker tribunal asked applicant harm fear connection failed tamil asylum seeker responded asked went scar asked think questioned would amount involve serious significant harm responded sla took previously saw scar cid take worse also stated know failed tamil asylum seeker returned sri lanka representative made written submission excerpted range source regarding treatment returnees sri lanka including report mistreatment harm faced returnees tribunal considered submission carefully context applicant evidence source referred regarding may await applicant return tamil male unsuccessfully sought asylum abroad tribunal note immigration refugee board canada irbc reported august 2011 treatment tamil returning sri lanka including failed asylum seeker citing information canadian high commission colombo effect screening process person returning sri lanka whether voluntary escort process impacted ethnicity 1 canadian high commissioner also quoted respect process involving person removed sri lanka effect process person removed sri lanka begin verification person citizenship sri lankan immigration person right enter established client interviewed airport criminal investigation division cid followed interview state intelligence service si sri lankan state intelligence service question often regard client departed country seeking information human trafficking smuggling country cid conduct criminal background check returnees contacting police station district client may lived criminal record accessible national databank final criminal check may take 24 48 hour complete depending day week person arrives colombo generally police record check may completed hour client arrives saturday sunday may take bit longer contact appropriate office following admission process deported sri lankan national free enter country 2 recent advice australian department foreign affair provided consistent account process involving returnees including failed asylum seeker sri lanka 3 information set unlawful departure address additional procedure applicable returnees considered departed sri lanka illegally irbc also cited information jointly provided various human right organisation lawyer effect sri lankan immigration authority alerted impending arrival failed returned asylum seeker people also identifiable fact travel temporary travel document individual taken immigration queue subjected special questioning police member terrorist investigation department tid almost always detained sometimes hour sometimes month security clearance obtained 4 however additional information canadian high commission august 2011 noted four case person detained upon arrival canadian high commission aware case involved outstanding criminal charge country related overseas asylum claim ethnicity person ethnic background returned either escort voluntarily sri lanka daily screening admission process person remains 5 tribunal mindful number human right group including amnesty international human right watch hrw freedom torture 6 provided alternative information regarding treatment returnees sri lanka including failed tamil asylum seeker suggesting risk serious significant harm return reason sought asylum abroad 8 significance however october 2012 report uk home office contest finding report noting particular concern effect allegation hrw report anonymous provided insufficient evidence immigration asylum chamber upper tribunal noted detail freedom torture amnesty international hrw allegation leaf much desired raise even unanswered question efficacy upon receipt information hrw uk home office concluded two 13 individual alleged suffered mistreatment following return uk one case alleged mistreatment occur six month return individual stopped checkpoint response series amnesty international report claiming failed sri lankan asylum seeker faced harm upon return upper tribunal concluded lacked substance report noted april 2012 unhcr press release stated assisted voluntary return 1 728 tamil 2011 408 first quarter 2012 earlier unhcr press release noted unhcr carry regular monitoring area seek ensure returnees receive mine risk education included food ration list become considered beneficiary many government un project taking place establish life sri lankans north east country 9 concern uk border policy bulletin october 2012 also referred recent report irbc dated 12 february 2013 10 tribunal note absence systematic monitoring unhcr involuntary returnees sri lanka acknowledges place limit transparency accountability said support existence real chance serious harm particular reason impress tribunal highly speculative balance tribunal accepts applicant returnee sri lanka go process bring contact sri lankan authority tribunal satisfied evidence returned tamil failed asylum seeker singularly combination accepted balance applicant personal family profile would impute political opinion linked ltte opposed sri lankan authority give rise differential treatment convention reason tribunal satisfied process face returning sri lanka failed asylum seeker involves amount reveals give rise real chance serious harm either airport sri lanka applicant return home point reasonably foreseeable future sri lanka tribunal note uk home office observation see paragraph 36 two thirteen reported returnees alleged suffered mistreatment however evidence unclear veracity testing allegation well reason reason mistreatment suffered alleged case making alleged case little assistance assessing risk harm faced returned tamil failed asylum seeker applicant circumstance balance based totality evidence tribunal satisfied evidence reveals real chance persecution involving serious harm connection applicant unsuccessful application asylum either singularly cumulatively sri lanka reasonably foreseeable future illegal departurethe tribunal also considered whether applicant face convention linked serious harm sri lanka reasonably foreseeable future connection illegal departure sri lanka ie departing sri lanka australia boat without passport tribunal accepts done recent information australian department foreign affair trade dfat 12 appears consistent reporting government 13 well independent news source 14 indicates summary standardised procedure apply case regardless person ethnicity circumstance left country returnees routinely interviewed airport arrival immigration emigration department state intelligence service si airport criminal investigation department cid process involve police security clearance including check person local police station may take hour reveal outstanding arrest warrant prior criminal offence alert person name immigration watch list may subject questioning additional questioning would also involved person security interest evidence involvement people smuggling recently tightened procedure returnees believed left country breach sri lanka law immigration emigration arrested airport brought court apply bail bail routinely given accused recognisance although family member also required provide surety arrival occurs weekend public holiday returnee placed remand section negombo prison may remain day bail hearing available condition remand described medium report 15 overcrowded although report returnees held awaiting bail hearing subjected torture form deliberate mistreatment penalty eventually imposed returnees court illegal departure involved fine ranging r 100 000 considered information tribunal satisfied treatment faced sri lankan returnees departed sri lanka unlawfully either airport arrival remand awaiting bail hearing later dealt court amount persecution involving serious harm give rise real chance harm reasonably foreseeable future even assessed cumulatively accepted applicant personal profile circumstance sri lanka tribunal satisfied process involves give rise differential treatment convention reason conclusion regarding refugee conventionbased evidence including cumulatively including accepted applicant claimed circumstance tribunal satisfied applicant imputed political opinion linked ltte opposed sri lankan government reason claimed arising evidence tribunal satisfied face real chance persecution involving serious harm convention reason claimed arising evidence either singularly cumulatively including tamil race actual imputed political opinion membership particular social group follows tribunal satisfied applicant face well founded fear persecution convention reason sri lanka reasonably foreseeable future tribunal satisfied refugee undersection 36 2 act complementary protectionthe tribunal also assessed whether applicant eligible complementary protection claim made applicant behalf respect complementary protection relation claimed treatment may face returned failed tamil asylum seeker departed sri lanka unlawfully tribunal accepts applicant departed sri lanka without passport boat considered sri lankan authority departed unlawfully based evidence including evidence submission presented applicant accepted applicant claimed circumstance independent information referred particular social group failed tamil asylum seeker illegal departure concern cited regarding reliability detail report harm faced returnees sri lanka including failed asylum seeker limited insight report provide regarding awaits person applicant circumstance tribunal satisfied substantial ground believing applicant face real risk significant harm sri lanka reasonably foreseeable future connection failed application asylum regarding illegal departure sri lanka tribunal accepts person departed sri lanka illegally applicant questioned sri lankan authority airport consultation local police authority tribunal satisfied adverse profile revealed throughout process tribunal accepts whilst applicant may remanded prison day condition cramped uncomfortable unpleasant returnees reported held remand illegally departed sri lanka short duration day waiting brought court apply bail routinely given weight country information also indicates applicant subject fine custodial sentence illegal departure sri lanka basis tribunal find prospect applicant detained prolonged period time remote tribunal note despite large number reported involuntary returnees sri lanka including australia including large number departed sri lanka illegally boat despite high level medium interest returnees reporting returnees exposed act omission amounting significant harm specifically reporting returnees arbitrarily deprived life death penalty carried subjected mistreatment including intentional mistreatment involving torture cruel inhuman treatment punishment extreme humiliation required act omission degrading treatment punishment amounting significant harm contemplated bysection 36 2a act balance information tribunal satisfied failed returned tamil male asylum seeker left sri lanka illegally even considered cumulatively accepted applicant claimed circumstance involves creates real risk treatment amounting significant harm contemplated bysection 36 2a act specifically tribunal satisfied information substantial ground believing necessary foreseeable consequence applicant removed australia sri lanka face real risk arbitrarily deprived life death penalty carried subjected torture subjected cruel inhuman treatment punishment subjected degrading treatment punishment conculsionsfor reason given tribunal satisfied applicant person respect australia protection obligation refugee convention therefore applicant satisfy criterion set in 36 2 concluded applicant meet refugee criterion in 36 2 tribunal considered alternative criterion in 36 2 aa tribunal satisfied applicant person respect australia protection obligation unders 36 2 aa suggestion applicant satisfiess 36 2 basis member family unit person satisfiess 36 2 aa hold protection visa accordingly applicant satisfy criterion in 36 2 decisionthe tribunal affirms decision grant applicant protection class xa visa appendix 1relevant lawthe criterion protection visa set in 36of act andpart 866of schedule 2 themigration regulation 1994 regulation applicant visa must meet one alternative criterion 36 2 aa b c applicant either person respect australia protection obligation refugee criterion complementary protection ground member family unit person person hold protection visa refugee criterionsection 36 2 provides criterion protection visa applicant visa non citizen australia respect minister satisfied australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee together refugee convention convention australia party refugee convention generally speaking protection obligation respect people refugee defined article 1 convention article 1a 2 relevantly defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return section 91r 91s act qualify aspect article 1a 2 purpose application act regulation particular person four key element convention definition first applicant must outside country second applicant must fear persecution 91r 1 act persecution must involve serious harm applicant 91r 1 b systematic discriminatory conduct 91r 1 c example serious harm set 91r 2 act high court explained persecution may directed person individual member group persecution must official quality sense official officially tolerated uncontrollable authority country nationality however threat harm need product government policy may enough government failed unable protect applicant persecution persecution implies element motivation part persecute infliction harm people persecuted something perceived attributed persecutor third persecution applicant fear must one reason enumerated convention definition race religion nationality membership particular social group political opinion phrase reason serf identify motivation infliction persecution persecution feared need besolelyattributable convention reason however persecution multiple motivation satisfy relevant test unless convention reason reason constitute least essential significant motivation persecution feared 91r 1 act fourth applicant fear persecution convention reason must well founded fear add objective requirement requirement applicant must fact hold fear person well founded fear persecution convention genuine fear founded upon real chance persecuted convention stipulated reason real chance one remote insubstantial far fetched possibility person well founded fear persecution even though possibility persecution occurring well 50 per cent addition applicant must unable unwilling fear avail protection country country nationality stateless unable unwilling fear return country former habitual residence expression protection country second limb article 1a 2 concerned external diplomatic protection extended citizen abroad internal protection nevertheless relevant first limb definition particular whether fear well founded whether conduct giving rise fear persecution whether applicant person respect australia protection obligation assessed upon fact exist decision made requires consideration matter relation reasonably foreseeable future complementary protection criterionif person found meet refugee criterion 36 2 may nevertheless meet criterion grant protection visa non citizen australia respect minister satisfied australia protection obligation minister substantial ground believing necessary foreseeable consequence applicant removed australia receiving country real risk suffer significant harm 36 2 aa complementary protection criterion significant harm purpose exhaustively defined 36 2a 5 1 person suffer significant harm arbitrarily deprived life death penalty carried person person subjected torture cruel inhuman treatment punishment degrading treatment punishment cruel inhuman treatment punishment degrading treatment punishment torture defined 5 1 act certain circumstance taken real risk applicant suffer significant harm country arise would reasonable applicant relocate area country would real risk applicant suffer significant harm applicant could obtain authority country protection would real risk applicant suffer significant harm real risk one faced population country generally faced applicant personally 36 2b act appendix 2independent sourcesthe unhcr july 2010 report eligibility guideline assessing international protection need asylum seeker sri lanka 16 state part guideline issued context improved human right security situation following end armed conflict sri lankan army sla liberation tiger tamil eelam ltte may 2009 intended use unhcr state adjudicator assessment claim sri lankan asylum seeker supersede april 2009 unhcr eligibility guideline assessing international protection need asylum seeker sri lanka subsequent note applicability 2009 sri lanka guideline guideline contain information particular profile international protection need may arise current context given cessation hostility sri lankans originating north country longer need international protection broader refugee criterion complementary form protection solely basis risk indiscriminate harm light improved human right security situation sri lanka longer need group based protection mechanism presumption eligibility sri lankans tamil ethnicity originating north country important bear mind situation still evolving made drafting guideline particularly complex recent version guideline issued 21 december 2012 state part unhcr carefully analysed relevant development sri lanka since publication 2010 guideline well newly available information conflict period claim lodged asylum seeker need considered merit according fair efficient status determination procedure date relevant country origin information unhcr considers risk facing individual profile outlined require particularly careful examination likely need international refugee protection depending individual circumstance case listing necessarily exhaustive based information available unhcr time writing therefore claim automatically considered without merit simply fall within profile identified certain claim asylum seeker sri lanka may require examination possible exclusion refugee status recent report published detailing exposure serious violence directed people several risk profile listed including case mistreatment amounting torture psychological physical consequence past exposure experience environment past prolonged armed conflict serious human right violation military occupation need appropriately taken account assessment claim 17 height influence sri lanka 2000 2001 ltte controlled administered 76 northern eastern province sri lanka 180 therefore person living area outer fringe area ltte control necessarily contact ltte civilian administration daily life originating area previously controlled ltte result need international refugee protection sense 1951 convention 1967 protocol however previous real perceived link go beyond prior residency within area controlledby ltte continue expose individual treatment may give rise need international refugee protection depending specific individual case nature elaborate link ltte vary may include people following profile 1 person held senior position considerable authority ltte civilian administration ltte control large part northern eastern province sri lanka 2 former ltte combatant cadre 3 former ltte combatant cadre due injury reason employed ltte function within administration intelligence computer branch medium newspaper radio 4 former ltte supporter may never undergone military training involved sheltering transporting ltte personnel supply transport good ltte 5 ltte fundraiser propaganda activist perceived link sri lankan diaspora provided funding support ltte 6 person family link dependent otherwise closely related person profile 18 2012 version guideline identifies list general risk profile may give rise need protection list exhaustive person suspected certain link liberation tiger tamil eelam ltte ii certain opposition politician political activist iii certain journalist medium professional iv certain human right activist v certain witness human right violation victim human right violation seeking justice vi woman certain circumstance vii child certain circumstance viii lesbian gay bisexual transgender intersex lgbti individual certain circumstance 19 guideline caution ethnicity geographical origin may still significance within risk profile described ethnic dimension vulnerability whereas person belonging sinhalese majority may fall within risk profile generally member minority tamil lesser extent muslim community reportedly often subjected arbitrary detention abduction enforced disappearance human right issue sexual gender based violence violation housing land property right also disproportionately affect member ethnic minority addition person ethnicity place origin may also relevant factor assessment risk 20 1 immigration refugee board canada 2011 information treatment tamil returnees sri lanka including failed refugee applicant repercussion upon return proper government authorization leave country passport lka103815 e 22 august 2 ibid 3 cx234989 14 october 2009 cx234202 29 september 2009 cx 249694 cx297471 19 october 2012 cx299951 29 november 2012 cx304258 27 february 2013 dfat report 1479 4 march 2013 4 ibid 5 immigration refugee board canada 2011 information treatment tamil returnees sri lanka including failed refugee applicant repercussion upon return proper government authorization leave country passport lka103815 e 22 august 6 particular note see amnesty international 2011 sri lanka briefing committee torture october p 9 http www amnesty org en library asset asa37 016 2011 en 2bb1bbe4 8ba5 4f37 82d0 70cbfec5bb2d asa370162011en pdf accessed 18 september 2012 human right watch 2012 sri lanka uk halt deportation tamil sri lanka 25 february http www hrw org news 2012 02 24 uk halt deportation tamil sri lanka accessed 10 august 2012 7human right watch 2012 united kingdom document containing case sri lankan deportee allegedly tortured return 15 september http www hrw org news 2012 09 15 united kingdom document containing case sri lankan deportee allegedly tortured ret accessed 17 september 2012 freedom torture 2012 sri lankan tamil tortured return uk 13 september pp 1 2 http www tamilnet com img publish 2012 09 freedom_from_torture_briefing92012 pdf accessed 17 september 2012 8 according tamil genocide failed asylum seeker risk persecution upon return simply virtue fact sought asylum abroad also imputed political opinion regarding involvement sympathy ltte group may 2012 report treatment failed asylum seeker cited report human right watch uk home office amnesty international well medium reporting purportedly providing evidence failed asylum seeker heightened risk torture arbitrary detention immediately upon return simply basis status failed asylum seeker tamil genocide 2012 treatment failed asylum seeker overview persecution faced failed asylum seeker returning sri lanka tamilnet may http www tamilnet com img publish 2012 05 failed_asylum_seekers_sl_may_2012 pdf 9 uk home office 2012 country policy bulletin sri lanka october pp1 8 10 11immigration refugee board canada sri lanka treatment tamil returnees sri lanka including failed refugee applicant information specific asylum case including tamil asylum seeker boat stopped togo return sri lankan asylum seeker australia 2012 case voluntary repatriation august 2011 january 2013 12 february 2013 lka104245 e available http www refworld org docid 51346a1f2 html accessed 9 may 2013 12 cx234989 14 october 2009 cx234202 29 september 2009 cx 249694 cx297471 19 october 2012 cx304258 27 february 2013 dfat report 1479 4 march 2013 13 immigration refugee board canada 2011 sri lanka information treatment tamil returnees sri lanka including failed refugee applicant repercussion upon return proper government authorization leave country passport lka103815 e 22 august http www irb cisr gc ca 8080 rir_rdi rir_rdi aspx id 453562 l e accessed 18 november 2011 canadian high commission official stated high commission aware four case person detained upon arrival official indicated case involved outstanding criminal charge country related overseas asylum claim ethnicity ibid article thesunday leader published 26 june 2011 included transcript interview chris dix south asia regional director uk border agency interview took place immediate aftermath 26 failed asylum seeker sri lanka returned united kingdom response question regarding monitoring conducted british authority person deported sri lanka dix expressed view evidence safety issue return deportee rutnam e 2011 uk satisfied lankan deportation sunday leader 26 june http www thesundayleader lk 2011 06 26 uk satisfied lankan deportation accessed 18 november 2011 14 see example asylum denied penalty wait home ben doherty sydney morning herald 8 december 2012 http www smh com au world asylum denied penalty wait home 20121207 2b0qi html 15 ibid 16 unhcr eligibility guideline assessing international protection need asylum seeker sri lanka 5 july 2010 http www refworld org docid 4c31a5b82 html 17 unhcr eligibility guideline assessing international protection need asylum seeker sri lanka 21 december 2012 http www refworld org cgi bin texis vtx rwmain docid 50d1a08e2 p25 18 ibid p26 27 19 ibid p5 20 ibid p26
Little, Catherine; Stephens, Paula and Whittle, Stephen --- "The Praxis and Politics of Policing: Problems Facing Transgender People" [2002] QUTLawJJl 13; (2002) 2(2) Queensland University of Technology Law and Justice Journal 226.txt	little catherine stephen paula whittle stephen praxis politics policing problem facing transgender people 2002 qutlawjjl 13 2002 2 2 queensland university technology law justice journal 226 principal lecturer school law manchester metropolitan university c little mmu ac uk research assistant manchester metropolitan university reader law school law manchester metropolitan university whittle ntlworld com 1 1996 case 08964 96 unreported 2 1999 case 1802020 98 unreported 3 1999 case 2901131 98 unreported 4 1996 case 08964 96 unreported 5 ibid 9 10 6 p v cornwall county councilecj 1996 irlr 347 7 home office circular 87 1989 equal opportunity police service 8 ibid para 2 9 majesty inspectorate constabulary developing diversity police service equal opportunity thematic inspection report 1995 10 ibid 9 10 11 sir w macpherson report inquiry stephen lawrence murder london home office 1999 12 jones policewoman equality formal policy v informal practice london macmillan press ltd 1986 f heidensohn woman control role woman law enforcement oxford clarendon press 1992 j brown aspect discriminatory treatment woman police officer serving force england wale british journal criminology spring 1998 vol 38 2 j brown f heidensohn gender policing comparative perspective london macmillan press ltd 2000 13 burke coming blue london cassell 1993 14 f heidensohn woman control role woman law enforcement oxford clarendon press 1992 15 j bell policewoman myth reality 1982 vol 10 1journal police science administration j balkin policeman like policewoman 1988 vol 16 1journal police science administration 16 smith j gray police people london psi report aldershot gower 1985 young inside job oxford clarendon press 1991 17 j hunt logic sexism among police 1990 vol 1 2 woman criminal justice11 18 n fielding cop canteen culture newburn e stanko ed boy business men masculinity crime london routledge 1994 19 alvesson billing understanding gender organisation london sage publication 1997 97 20 j hunt logic sexism among police 1990 vol 1 2 woman criminal justice11 young inside job oxford clarendon press 1991 p levine walking street way decent woman woman police world war one march1994 journal modern history66 21 e martin breaking entering policewoman patrol berkley university california press ltd 1980 208 22 n 6 23 advocate general opinion inp v cornwall county councilecj 1996 irlr 347 para 20 24 ibid para 14 25 ibid para 25 26 johnston v chief constable ruc case 222 84 1987 ecr 1651 para 38 27 ibid 28 home office research statistic directoratehome office statistical bulletin i 27 97 4 december 1997 29 home office police serving community 1997 4 30 p white prison population 1997 statistical review home office research statistic directorate research finding 76 31 n 26 32 west yorkshire police strength workforce distribution 11 05 98 33 bucke brown police custody police power suspect right revised pace code practicehome office research statistic directorate home office study 174 7 34 n 26 table 7 35 n 31 9 36 francovich v italian governmentecr 5357 1993 2 cmlr 66 37 majesty inspectorate constabulary policing london winning consent 2000 london home office 38 home office winning race embracing diversity 2001 london home office communication directorate 39 majesty inspectorate constabulary police integrity 1999 london home office 40 sir william mcpherson stephen lawrence inquiry 1999 london stationery office 41 majesty inspectorate constabulary developing diversity police service 1995 london home office 42 p stephen report metropolitan police service gender project assessing impact mp application form gender diversity service 2001 unpublished 43 ibid 1 2 2 44
Lindley, Robert M. --- "Knowledge-based economies: the European employment debate in a new context" [2002] ELECD 73; in Rodrigues, Joao Maria (ed), "The New Knowledge Economy in Europe" (Edward Elgar Publishing, 2002).txt	lindley robert knowledge based economy european employment debate new context 2002 elecd 73 rodrigues joão maria ed new knowledge economy europe edward elgar publishing 2002 book title new knowledge economy europeeditor rodrigues joão mariapublisher edward elgar publishingisbn hard cover 9781840647198section chapter 4section title knowledge based economy european employment debate new contextauthor lindley robert number page 51extract 4 knowledge based economy theeuropean employment debate anew contextrobert lindleyintroductionknowledge basis much behaviour search exploitationof heart social economic development centu ries yet claim radical change afoot willgreatly increase significance alter pattern knowledge pro duction dissemination use country organisation stand adapt take advantage enormous opportunity inprospect argued place strong position competeeffectively global economy knowledge worker emerge thedominant occupational group high level education continuingprofessional development autonomy first connectto evolving global community many already social exclusion occurs society fails organise ensurethat member participate excluded suffer cumula tive disadvantage go well beyond individual characteristicsand experience extends local community live personal family wider collective ingredient processof exclusion last get connected electronically aswell socially knowledge worker socially excluded seem destined live indifferent world rest population fall intoneither group live work mechanism knowl edge based
Mangal, Pare [2003] MRTA 1188 (28 February 2003).txt	mangal pare 2003 mrta 1188 28 february 2003 last updated 9 may 2003 2003 mrta 1188catchwords review visa refusal subclass 309 genuine relationshipreview applicant pare mangalvisa applicant emal mangaltribunal migration review tribunalpresiding member wr wildemrt file number n01 06254dept file number 2001 05862993 05945998 066517date decision 28 february 2003at canberradecision tribunal remit application made visa applicant class uf visa subclass 309 spouse provisional department immigration multicultural indigenous affair reconsideration direction visa applicant taken satisfy following criterion grant subclass 309 spouse provisional visa extent set regulation 1 15a 1a b regulation 1 15a clause 309 211 time application clause 309 221 present time statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural indigenous affair delegate refuse grant partner provisional class uf visa mr emal mangal visa applicant national afghanistan born 1 march 1981 applied partner provisional class uf visa 2 march 2001 d1 red flag 12 delegate decision refuse grant visa made 29 august 2001 d1 red flag 21 24 jurisdiction standing2 mr pare mangal review applicant spouse visa applicant lodged valid application review tribunal 26 october 2001 t1 f 9 17 decision reviewable tribunal application review properly made person standing apply review legislation policy3 themigration act 1958 act various regulation made act principally themigration regulation 1994 regulation provide different class visa criterion grant visa reaching decision tribunal bound act various regulation written direction issued minister section 499 act matter may subject policy found publication theprocedures advice manual 3 pam3 themigration series instruction msis produced department immigration multicultural indigenous affair department tribunal required regard policy apply unless cogent reason departing policy 4 tribunal power affirm vary set aside decision refuse grant visa also power remit application visa department reconsideration remittal may accompanied direction visa applicant meet one criterion visa matter minister delegate consider remaining criterion review tribunal generally limited consideration whether visa applicant meet one essential criterion application remitted decision affirmed basis 5 criterion policy immediately relevant review legislation regulation 1 15aof regulation part 309of schedule 2 regulation policy procedure advice manual 3 regulation 1 15a interpretation spousecases nassouh v minister immigration multicultural affair 2000 fca 788bretag v minister immigration local government ethnic affair unreported federal court loughlin j 29 november 1991 6 tribunal generally regard regulation stood time visa application however subsequent amendment may apply circumstance evidence7 tribunal following document t1 mrt case file n01 06254 folio numbered 1 200t2 mrt case file n01 06254 folio numbered 201 400t3 mrt case file n01 06254 folio numbered 401 485d1 departmental case file osf2001 058629 red flagged 1 30d2 departmental case file f98 066517d3 departmental case file f93 0594598 visa applicant sponsored connection visa application mr pare mangal review applicant australian permanent resident d1 red flag 1 born afghanistan 15 april 1978 d1 red flag 17 9 sponsor claimsi know met emal mangal since childhood cousin d1 red flag 8 10 delegate stated visa granted basis thatfindings find cannot satisfied relationship applicant sponsor genuine continuing mutual commitment shared life together conclusionhaving taken account claim made evidence presented conclude marriage spouse relationship defined byregulation 1 15a result find applicant cannot meet requirement clause 309 221 themigration regulation d1 red flag 21 11 sponsor visa applicant married pakistan 7 january 2001 considerable amount evidence provided support marriage taking place ongoing spousal relationship time initial interview department subsequently purpose application review evidence includes copy sponsor permanent residency d1 red flag 1 copy marriage certificate d1 red flag 6 statutory declaration sponsor sister maleka mangal d1 red flag 7a statutory declaration sponsor mother wajmah jan mangal d1 red flag 7 statutory declaration sponsor d1 red flag 8 copy sponsor passport d1 red flag 9 11 14 17 statement naveed hussain advocate district court abbottabad d1 blue flag 1 statement emal mangal d1 blue flag 2 statement sponsor t1 f 8 statement centrelink detailing benefit sponsor receives t1 f 21 22 bank account statement t1 f 23 24 statutory declaration sponsor mother wajmah jan mangal t1 f 25 letter visa applicant t1 f 39 doctor certificate regarding sponsor parent health t1 f 41 42 centrelink statement sponsor family t1 f 43 48 bank statement sponsor family t1 f 49 65 letter sponsor t1 f 66 67 certified copy telephone account t1 f 85 132 copy e mail sent sponsor visa applicant t1 f 135 200 t2 201 205 copy e mail sent visa applicant sponsor t2 f 207 240 letter sponsor education provider t2 f 243 wedding invitation card t2 f 245 copy letter hotel wedding reception held t2 f 246 letter sponsor t2 f 255 256 letter american english language center sic regarding visa applicant t2 f 257 statutory declaration sponsor brother merwais mangal t2 f 259 statutory declaration visa applicant sister sponsor sister law nazifa mangal t2 f 260 copy e mail sponsor visa applicant t2 f 262 303 copy telephone account t2 f 305 308 letter sponsor t2 f 310 311 letter sponsor t2 f 317 318 statutory declaration sponsor brother law mohammad farooq mangal t2 f 329 copy travel itinerary sponsor t2 f 331 336 copy e mail sent visa applicant sponsor t2 f 338 363 copy e mail sent sponsor visa applicant t2 f 365 400 t3 401 457 copy telephone account t3 f 459 463 letter sponsor t3 465 466 copy wedding photo t3 f 468 four photo album provided tribunal wedding sponsor visa applicant t3 plastic envelope 12 review applicant stated lodging application review thati would like state met requirement clause 309 221 migration regulation subclass 309 spouse provisional visa think migration officer decision maker made error husband refusal letter refusing husband spouse visa t1 f 8 13 purpose review review applicant lodged several letter summarising evidence reason claim relationship genuine great deal evidence lodged support application review outlined finding reasons14 time visa application lodged partner provisional class uf contained following subclass subclass 309 spouse partner subclass 310 interdependency provisional subclass respect claim advanced subclass 309 evidence suggest visa applicant meet key criterion subclass 310 visa 15 time application visa applicant validly sponsored mr pare mangal australian resident d1 red flag 1 16 visa applicant made 3 unsuccessful application permanent migration australia delegate decision note local record indicate hat sic applicant forth application migration australia 1995 1998 family applied subclass sic 202 humanitarian visa 1999 sought subclass 300 provisional spouse visa refused officer satisfied applicant sponsor met relationship genuine d1 red flag 22 17 tribunal must consider whether visa applicant spouse sponsor time application continues spouse sponsor time decision 18 regulation 1 15acontains test applied determine whether one person spouse another person whether married de facto relationship 19 regulation 1 15a 1a requires person married marriage recognised valid purpose act regulation 1 15a 1a b contains additional requirement essence genuine spousal relationship party according several test satisfied 20 visa applicant sponsor said married pakistan 7 january 2001 d1 red flag 5 tribunal received copy visa applicant police clearance pakistan tribunal unable determine genuine document evidence tribunal indicate visa applicant identity visa applicant identity status may relevant determining visa applicant free marry review applicant therefore valid marriage required byregulation 1 15a 1a issue determined delegate decided case basis ofregulation 1 15a 1a b criterion accordingly primary decision respect ofregulation 1 15a 1a criterion tribunal limited decision question whetherregulation 1 15a 1a b criterion satisfied 21 innassouh v minister immigration multicultural affair 2000 fca 788the federal court considered provision regulation court held subregulation 1 15a 3 set mandatory consideration accordingly tribunal forming opinion whether married relationship de facto relationship exists must take account consideration set subregulation 1 15a 3 consideration relate circumstance relationship including particular financial aspect relationship nature household social aspect relationship nature person commitment 22 pam3 state decision maker decide weight give circumstance listed factor respect weight accorded requirement depend fact circumstance case situation party marriage residing different country aspect paragraph 1 15a 3 need accorded different weight others apt situation party residing together 23 regard consideration spousal relationship set inregulation 1 15aat time application time decision evidence issue discussed following heading sthe financial aspect relationshipthe sponsor currently receiving youth allowance administered centrelink t1 f 21 22 visa applicant currently unemployed d1 red flag 21 nature householdthere detail household provided tribunal social aspect relationshipthe sponsor visa applicant provided statutory declaration sponsor sister maleka mangal d1 red flag 7a sponsor mother wajmah jan mangal d1 red flag 7 t1 f 25 sponsor brother merwais mangal t2 f 259 declaration visa applicant sister sponsor sister law nazifa mangal t2 f 260 sponsor brother law mohammad farooq mangal t2 f 329 regarding relationship visa applicant sponsor sponsor mother wajmah jan mangal state daughter pare mangal legally got married emal mangal mother witnessed wedding supported every step life strong genuine long lasting relationship emal come sic australia d1 red flag 7 nature person commitment sponsor provided tribunal four photo album visa applicant wedding t1 f 468 plastic envelope non translated copy e mail sent visa applicant t1 f 135 200 t2 f 201 240 338 400 t3 f 401 457 copy telephone account showing international call visa applicant t1 f 85 132 t2 f 305 308 t3 f 459 463 whether mutual commitment shared life husband wife exclusion others delegate decision state sponsor 3 year older applicant afghani culture unusual man marry older woman also usual woman leave family upon marriage live husband family tradition adhered causing doubt relationship suspect marriage arranged obtain residence australia applicant d1 red flag 28 sponsor state would like state legally married husband mr emal mangal husband strong excellent relationship love future know seen sic husband since childhood cousin moment constantly contact via phone call writing letter writing e mail sending photo chatting via msn messenger t3 f 466 whether relationship genuine continuingthe sponsor visa applicant married 7 january 2001 d1 red flag 6 still married sponsor state show continuous relationship indicates fact relationship strong genuine long lasting t3 f 465 whether person live together live separately apart permanent basisthe visa applicant sponsor currently live apart 24 considering evidence submitted matter tribunal regard principle set federal court decision inbretag v immigration review tribunal federal court loughlin j 29 november 1991 unreported case authority view tribunal may regard subsequent history relationship purpose testing determining whether relationship genuine continuing time application long tends logically show existence non existence fact relevant issue determined quoting fromminister immigration ethnic affair v pochi 1980 fca 85 1980 4 ald 139at 160 25 tribunal also regard totran case federal court held assessing two people mutual commitment shared life husband wife exclusion others sufficient rely finding absence credibility part applicant tran v minister immigration multicultural affairscarr j unreported judgement 601 1997 26 provision incorrect false misleading evidence department tribunal nature relationship could course lead cancellation visa granted review applicant visa applicant doubt aware tribunal specifically draw attention however inconsistency one account automatically signal visa application rejection adverse conclusion intention party concerned 27 primary decision delegate questioned visa applicant claim number reason including inconsistency alleged deception application interview inability prove pre post marriage contact communication break cultural norm marrying older woman seeking join family australia rather joining alleged inconsistency visa applicant answer interview evidence suspicion marriage entered order obtain entry australia 28 issue concern delegate subject several written submission behalf review applicant visa applicant supported considerable amount evidence including photograph telephone call e mail statement support family background history relationship expanded upon genuineness relationship insisted upon couple known since childhood cousin couple married 2 year time maintained contact one another 29 tribunal considered explanation accepts plausible given circumstance matter review particular tribunal taken account evidence respect social aspect relationship nature household nature couple commitment 30 tribunal find balance evidence presented address delegate concern issue initial decision taken namely existence genuine spousal relationship consistent genuine continuing relationship party commitment live together spouse would physical separation thus tribunal find balance consideration evidence time application present relationship genuine continuing primary visa applicant review applicant mutual commitment shared life husband wife exclusion others live separately apart permanent basis characteristic contained inregulation 1 15a 3 satisfied degree concludes circumstance case requirement married relationship satisfied extent set inregulation 1 15a 1a b tribunal also find extent requirement clause 309 211 time application clause 309 221 present time satisfied 31 tribunal note visa applied temporary visa couple required continue genuine ongoing relationship time grant visa also respect later consideration permanent visa attached visa subclass tribunal also note continuing obligation party advise department material change relationship 32 given finding appropriate course remit application visa department consider remaining criterion respect ofregulation 1 15a 1a visa generally decision33 tribunal remit application made visa applicant class uf visa subclass 309 spouse provisional department immigration multicultural indigenous affair reconsideration direction visa applicant taken satisfy following criterion grant subclass 309 spouse provisional visa extent set inregulation 1 15a 1a b regulation 1 15a clause 309 211 time application clause 309 221 present time
FTV Tweed Finance Pty Ltd v King [2009] VCC 62 (24 February 2009).txt	county court victoria 250 william street melbourne undefined bookmark county court victoria revised restricted melbourne civil division commercial list case ci 03 01841 ftv tweed finance pty ltd c n 073 550 357 plaintiff v jeffrey william king defendant judge honour judge kennedy held melbourne date hearing 23 february 2009 date judgment 24 february 2009 case may cited ftv tweed finance v king medium neutral citation 2009 vcc 0062 reason judgment appearance counsel solicitor plaintiff mr n frenkel amad amad defendant appearance appearance vcc pk 1 judgment ftv tweed finance v king honour 1 proceeding plaintiff claim amount principal 100 000 interest 107 013 69 pursuant written loan agreement dated 30 june 1998 2 defendant former solicit or filed detailed amended defence counterclaim dated 22 july 2004 whic h primarily relied claim misleading deceptive conduct dec eit however defendant appear solicitor otherwise adduce evidence support claim 3 given plaintiff pursues clai pursuant loan agreement issue court therefore whether appropriate proceed hear matter absence defendant b whether plaintiff est ablished entitle ment based simple breach loan agreement absence defendant 4 proceeding long complex history however appears solicitor record defendant date issue proceeding april 2003 march 2008 5 direction hearing 25 marc h 2008 appearance defendant 6 shortly thereafter notice licitor ceased act robert james lawyer gave notice ceased act defendant 27 march 2008 address given defen dant ice c bdo kendall level 30 525 col lin street melbourne vict oria 3000 pursuant rule 20 05 1 c county court rule proc edure civil proceeding vcc pk 2 judgment ftv tweed finance v king 1999 address service defendant thereafter address given notice 7 direction hearing followed 30 may 2008 defendant appear 8 correspondence 2 june 2008 defendant sought advise mr brereton director plaintiff address contact correspondence longer c bdo kenda lls level 30 525 collins street association firm requested please use address future correspondence received however defendant gave new substituted address result address se rvice remained c bdo kendall described former solicit or notice 9 correspondence 27 august 2008 zolis solicitor newly retained behalf plaintiff zolis advised defendant direction hearing 29 august 2008 correspondence forwarded 53 campbell road hawthorn ea st address corresponded given el ectoral roll defendant however defendant failed appear dire ctions hearing direction hearing made order proceeding listed tria l yesterday copy order sent defendant zolis c bdo kendall letter 29 august 2008 10 correspondence dated 1 september 2008 addressed zolis lawyer bdo kendall advised defendant employed engaged based bdo kendall however provide alternative address stated hold forwarding detail 11 defendant also failed re pond correspondence new solicitor acting plaintiff amad amad 16 december 2008 well correspondence 16 february 2009 wherein mr brereton vcc pk 3 judgment ftv tweed finance v king gave notice trial date 12 circumstance satisfied plaintiff done give notice trial date def endant correct address service rule action defendant failing provide alternative address fa iling attend direction hearing suggests lack interest defending proceeding 13 circumstance ensured case called outside court satisfied wa appropriate pr oceed hear case plaintiff absence defendant whether plaintiff entitled judgment 14 plaintiff called one witness m kr isten moran administrator manager plaintiff 15 m moran gave evidence l oan agreement entered plaintiff former name omni finance pty ltd defendant 30 june 2008 16 pursuant clause 3 plaintiff financie r agreed lend principal defendant borrower drawdown date 30 june 1998 17 pursuant clause 5 1 borrowe r defendant obliged repay outstanding principal plaintiff financier repaym ent date 30 june 2000 second anniversary drawdown date 30 june 1998 see clause 1 1 18 principal defined 300 000 clause 1 1 although m moran gave evidence 100 000 advanced behalf defendant way payment made company called toxfree system limited tfs 19 payment made enable defendant partner dc vcc pk 4 judgment ftv tweed finance v king tweed partnership inject total sum 1 000 000 tfs enabled tfs cease administration pursue business treating removing pesticide chemical soil 20 extract national australia bank account name tfs show amount 1 000 000 bei ng credited 1 july 1998 amount included amount 100 000 paid plaintiff 21 clause 4 1 loan agreem ent provides borrower pay interest outstanding principal becom e due owing interest paid interest payment date interest payment date mean drawdown date first anniversar drawdown date interest received relevant interest payment date absence default interest lower rate 10 per cent per annum however event interest wa received due date rate set higher rate 14 per cent per annum payable demand 22 pursuant clause 4 1 m moran gave evidence payment interest made 30 june 1998 30 june 1999 amount 30 000 case 23 pursuant clause 13 1 lender coul extend term loan 3 year 30 june 2000 ri ghts exercised lender pursuant clause 13 2 outstanding principal shall repayable fifth anniversary drawdown date 30 june 2003 day comprising second third fourth anniversary drawdown date deemed interest payment date 24 correspondence 6 december 2000 plaintiff advised defendant agreed extend term three year 30 june 2003 correspondence confirmed interest would continue due owing 30 june year extended term principal must vcc pk 5 judgment ftv tweed finance v king repaid repayment date 25 m moran gave evidence although interest duly paid 30 june 2000 annual interest due 30 june 2001 30 june 2002 paid 26 pursuant clause 9 1 event default includes party pay money due payment transaction document included loan agreement 27 two letter harrison insolvency 21 october 2002 harrison noted defendant wa default faili ng make interest payment due 30 june 2001 30 june 2002 respectively gave notice l ender required interest higher rate 14 per cent per annum pursuant clause 4 1 demanded payment failing claimed would exercise right agree ment including right relation security 28 m moran gave evidence response correspondence defendant 29 pursuant clause 9 2 b event default occurs financier may time notice made outstanding princi pal unpaid accrued interest money owing immediately due payment 30 correspondence 17 december 2002 anthony peterson wrote defendant demanding principal plus interest failing instructed issue proceeding howeve r appears correspondence incorrectly cite principal wing 300 000 rat 100 000 31 outstanding interest principa l 100 000 never paid vcc pk 6 judgment ftv tweed finance v king finding 32 accept evidence m moran wh ich subj ect challenge 33 may issue raised mr frenkel counsel plaintiff whether plaintiff entitled outstanding principal pursuant clause 9 2 gi ven letter 17 de cember 2002 sought incorrect amount principal 34 however matter ra ised defendant amended defence paragraph 10 actual ly admits solicitor plaintiff sent demand dated 17 december 2002 moreov er even plaintiff entitled principal pursuant clause 9 2 accelerated basis satisfied failure pay outstanding principal fifth anniversary drawdown date 30 june 2003 provided clause 13 2 failure pay amount constitutes default pursuant clause 9 1 35 accordingly judgment plaintiff amount 100 000 36 also accept default pursuant clause 9 1 loan agreement constituted non payment intere st due interest payment date provided clause 13 2 4 1 agreement interest due 30 j une 2001 30 june 2002 pursuant clause 4 1 b defendant pay interest remains unpaid higher rate money paid full date judgment given effluxion time amount intere st based higher rate 14 per cent 107 013 69 37 accordingly plaintiff also ent itled interest 107 013 69 38 mr frenkel pursue claim demnity cost plaintiff therefore entitled cost proceeding taxe scale default agreement vcc pk 7 judgment ftv tweed finance v king 39 defendant counterclaim dismissed 40 hear mr frenkel question certificate
060965894 [2007] MRTA 398 (10 August 2007).txt	060965894 2007 mrta 398 10 august 2007 last updated 4 september 2007060965894 2007 mrta 398 10 august 2007 decision recordapplicant miss haiyin zhoumrt case number 060965894diac reference clf2005 51849 clf2006 124872tribunal member paul fisherdate decision signed 10 august 2007place decision melbournedecision tribunal affirms decision grant applicant student temporary class tu visa statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant applicant student temporary class tu visa unders 65of themigration act 1958 act applicant applied department immigration citizenship student temporary class tu visa 4 april 2005 delegate decided refuse grant visa 13 october 2006 notified applicant decision review right letter dated 13 october 2006 delegate refused visa application basis applicant satisfy cl 572 224 schedule 2 themigration regulation 1994 regulation reason applicant meet public interest criterion pic 4013the applicant applied tribunal 20 november 2006 review delegate decision tribunal find delegate decision mrt reviewable decision 338 2 act tribunal find applicant made valid application review 347 act issue considerationthe delegate refused visa application basis applicant satisfy requirement subclause 572 224 schedule 2 regulation becausethe last visa held applicant cancelled unders 116of themigration act delegate also noted reason applicant met criterion subclass within tu visa class one exception subclass 580 student guardian visa respect visa subclass delegate noted visa application made form 157g applicant made valid application purpose subclass 580 dispute last visa held applicant subclass 573 higher education sector visa fact cancelled unders 116 form basis visa refusal want compliance cl 572 224 clause set certain mandatory pic visa applicant must satisfy including pic 4013 see issue consideration therefore whether waiver provision pic 4013 apply applicant tribunal bound affirm decision review relevant lawthe student temporary class tu visa contains following subclass subclass 570 independent elicos sector subclass 571 school sector subclass 572 vocational education training sector subclass 573 higher education sector subclass 574 postgraduate research sector subclass 575 non award sector subclass 576 ausaid defence sector subclass 580 student guardian item 1222 4 schedule 1 regulation subclass tu class time decision requirement applicant satisfies various pic set schedule 4 themigration regulation including pic 4013 case subclass 572 vocational education training sector visa relevant clause applicant found satisfied cl 572 224 provides follows 572 224the applicant satisfies public interest criteria4001 4002 4003 4004 4005 4012a 4013and4014 b applicant seek stay australia 12 month satisfies publicinterest criterion4010 c applicant applying outside australia applicant previously australia satisfies special return criteria5001 5002and5010 pic 4013 relevantly provides person affected risk factor visa previously held person cancelled unders 116of act visa subclass specified inpart 2of schedule person comply condition specified part relation subclass part 2of schedule specifies item 4058d condition applicable subclass 573 visa include condition 8202 relevant time provided follows 1 holder holder subclass 560 student visa ausaid student holder subclass 576 ausaid defence sector visa must meet requirement subclauses 2 3 2 holder meet requirement subclause holder enrolled registered course b case holder subclass 560 571 school sector visa exchange student holder enrolled full time course study training 3 holder meet requirement subclause case holder whose education provider keep attendance record minister satisfied holder attends least 80 contact hour scheduled course run le semester course ii course run least semester term semester course b case holder achieves academic result certified education provider least satisfactory course run le semester course ii course run least semester term semester whichever shorter course 4 case holder subclass 560 visa ausaid student holder subclass 576 ausaid defence sector visa holder enrolled full time course study training pic 4013 state person affected specified risk factor visa application must made least three year cancellation visa triggered risk factor however pic 4013 contains waiver provision 3 year requirement waived minister satisfied exist compelling circumstance affect interest australia compelling compassionate circumstance affect interest australian citizen australian permanent resident eligible new zealand citizen justify granting visa within three year initial cancellation specific definition compelling compassionate act regulation whether circumstance reason compelling question fact degree tribunal scope meaning relevant phrase must referenced context appears word compelling often always used together word compassionate regulation generally regard ordinary meaning word compassionate defined macquarie online dictionary dictionary feeling sorrow pity suffering misfortune another sympathy broader term compelling dictionary definition demanding attention interest following general principle extracted case law considered meaning scope various form phrase compelling compassionate various provision compelling may include reason raise moral necessity convincing word necessarily require involuntary element involving circumstance beyond person control paduano v mimia 2005 fca 211 although regulation worded specifically require involuntary element case legally erroneous construe compelling circumstance context schedule 3 mean circumstance force drive decision maker decide whether jurisdictional fact arises exercise discretion view compelling circumstance must powerful lead decision maker make finding provision waived babicci v mimia 2005 fcafc 77at 24 determining relevant consideration take account compelling reason applying criterion context waiver schedule 3 criterion onshore partner visa must reason relevant purpose criterion context must relevant purpose permitting person make application spouse visa australia take account consideration relevant purpose take account irrelevant consideration monakova v mimia 2006 fmca 849at 28 relevant policy consideration set inmigration series instruction 410 exclusionperiodsinclude following 29 compassionate circumstances29 1 affecting interest australiathere may compelling circumstance affecting interest australia australia trade business opportunity would adversely affected person granted visa australia relationship foreign government would damaged person granted visa australia would miss significant benefit person could contribute australia business economic cultural development example special skill highly sought australia person granted visa 29 2 departmental policyit departmental policy compelling circumstance affecting interest australia would include circumstance non citizen merely claim granted visa would work pay tax australia pay fee education provider spend money australia however s65 delegate considers particular case exclusion period arisen departmental error unintended consequence exclusion provision see example contact compliance coordination section national office advice whether circumstance compelling circumstance affecting interest australia 29 3 affecting interest australian citizen permanent resident eligible new zealand citizenthere may compelling circumstance affecting interest person person granted visa business operated australian citizen would close lacked specialist skill required carry business person granted visa civil proceeding instigated australian permanent resident would jeopardised absence non citizen witness person granted visa eligible new zealand citizen would unable finalise legal property matter associated divorce proceeding without physical presence non citizen australia 30 compassionate circumstancesthere may compassionate circumstance affecting interest australian citizen australian permanent resident eligible new zealand citizen person granted visa family member australia would left without financial emotional support person granted visa family member australia would unable properly arrange relative funeral australia person granted visa parent australia would separated child example child removed non resident parent therefore subject exclusion period claim evidencethe tribunal department file relating applicant tribunal also regard material referred delegate decision backgroundthe applicant 23 year old student china first entered australia holder subclass 560 student visa 3 march 2001 visa valid 15 march 2003 year obtained diploma management holmes college 16 december 2003 review applicant granted subclass 573 higher education sector visa subject condition 8202 meet course requirement visa granted basis applicant enrolment bachelor business course central queensland university cqu sydney applicant subclass 573 visa cancelled 20 july 2005 due alleged breach condition 8202 decision affirmed differently constituted tribunal 5 december 2005 meanwhile 4 april 2005 applicant applied class tu student visa relying upon enrolment diploma information technology australian school business technology commenced 13 december 2004 applicant evidently pursue course indeed although material appears even undertaking course time applied visa 27 january 2005 31 october 2005 studying full time stafford college towards certificate iii food processing retail baking cake pastry granted certificate 31 october 2005 however visa application refused delegate minister 13 october 2006 reason set review applicationon 20 november 2006 applicant applied tribunal apparently time review decision refusing class tu student visa application attached submitted review application copy primary decision record setting reason decision refuse class tu student visa application 5 march 2007 tribunal wrote applicant inviting comment possibility application lodged time applicant replied 28 march 2007 asserting notified departmental decision accordance act 18 april 2007 tribunal wrote applicant indicating accepted departmental notification defective sent authorised recipient accepting review application therefore valid one 3 may 3007 tribunal wrote applicant inviting attend proposed hearing scheduled 28 may 2007 3 may 2007 tribunal received response invitation indicating applicant would attending proposed hearing tribunal hearingtheapplicant appeared tribunal 28 may 2007 give evidence present argument tribunal hearing conducted assistance interpreter mandarin english language applicant represented relation review registered migration agent representative attended tribunal hearing hearing tribunal provided documentary evidence applicant study stafford college namely copy final statement result certificate iii food processing retail baking cake pastry also submitted certificate australian online institute dated 15 may 2007 indicating applicant enrolled full time student certificate iii hospitality commercial cookery since 5 march 2007 attendance academic performance date satisfactory tribunal noted last visa held applicant cancelled queried whether sought review decision applicant acknowledged visa cancelled indicated appealed unsuccessfully tribunal sydney asked whether sought judicial review decision appeared indicate done explaining stage different agent dispute last substantive visa held applicant cancelled although applicant continues aggrieved decision cancel earlier visa tribunal indicated power present review revisit earlier decision unless decision set aside court tribunal obliged proceed basis correct tribunal explained review applicant operation pic 4013 indicated issue relevant decision presently review appeared tribunal confined whether compelling compassionate circumstance existed purpose pic 4013 applicant asked whether compelling circumstance existed affect interest australia said studying half way course visa cancelled prevented studying good school australia said reputation good go back china applicant indicated initially came studied accounting cqu year discovered course difficult manage however really enjoying current course obtains diploma return china able use qualification business say china would like restaurant business western food common asked interest australia would affected said reputation current school would affected applicant asked current circumstance said currently studying cooking 2005 however 2006 able find education provider willing enrol immigration status partly due incompetence former agent supposed assisting applicant reiterated failed cqu hard also interested accountancy think found niche cookery applicant asked whether compelling compassionate interest affecting australian citizen permanent resident eligible new zealand resident said married australian divorced child lived together two year divorced found suited still good friend asked interest would affected said considering reconciliation return china opportunity would lost asked whether child together indicated student although planning three year say born chinese tradition thinking person first complete kind degree diploma attain sort financial stability child arrives asked reason divorce said living together lot conflict divorced separated better friend ever thinking living together conflict le asked thought returning china would prevent said distance would affect relationship talk phone see china would possible pointed applicant distance presented obstacle many people applying example spouse visa said ex husband truck driver often away week time driving interstate impossible contact via email telephone post hearingon 9 july 2007 tribunal wrote applicant pursuant s 359 2 359a act incorporating following invitation comment informationsection 359a act state tribunal must explain invite comment particular information tribunal considers would reason part reason affirming decision review invited provide following additional information applied student temporary class tu 4 april 2005 visa application visa application refused 13 october 2006 found meet clause 572 224 decision subject present review tribunal one requirement clause 572 224 time decision visa applicant must satisfy public interest criterion pic 4013 pic 4013 state person affected specified risk factor application must made least three year cancellation visa triggered risk factor previous subclass 573 visa cancelled 20 july 2005 said breached condition 8202 reason achieved academic result certified education provider least satisfactory decision affirmed differently constituted tribunal 5 december 2005 therefore affected specified risk factor pursuant themigration regulation schedule 4 clause 4013 2 b item 4058d visa application made least three year cancellation visa triggered risk factor clause 4013 1 b three year requirement waived compelling circumstance affect interest australia compassionate compelling circumstance affect interest australian citizen australian permanent resident eligible new zealand citizen justify granting visa within three year cancellation information relevant unless tribunal satisfied ground waiver 3 year requirement tribunal may affirm decision review information include information gave tribunal purpose application information act non disclosable b request informationsection 359 2 act allows tribunal invite person give additional information relevant review decision accordingly tribunal invite give following additional information additional information consider may relevant question whether ground waiver three year requirement exist case 6 august 2007 tribunal received applicant authorised recipient brief submission date response tribunal letter submission note applicant lodged application 4 april 2005 decided 13 october 2006 decided 20 july 2005 would affected pic 4013 delay beyond control taken account applicant enrolled commercial cookery course expects complete end year applicant ex husband australian citizen maintain good relationship return china upset andthe applicant car loan ge money incur loss return china attached submission receipt payment fee aoi institute apparently semester ii 2007 statement result date applicant certificate iii hospitality institute attachment dated 6 august 2007 finding reasonsthe applicant applied student temporary class tu visa indicated requirement particular sub class visa applicant made specific claim subclass 572 vocational education training sector visa applicant satisfies among others pic4013 indeed mandatory requirement visa sub class within student temporary tu visa class first issue consideration therefore whether affected pic 4013 whether waiver provision pic 4013 apply applicant tribunal bound affirm decision review tribunal considered evidence applicant respect whether matter raised amount compelling circumstance affect interest australia light relevant case law policy guideline set applicant entirely happy tuition received cqu ultimately indicated accountancy course attempted difficult could cope found niche cooking even applicant publicly criticised education provider australian student visa system tribunal consider criticism would carry much weight reason would attract much attention similarly applicant spoken ambition return china carry business frustrated unable complete course tribunal consider outcome even occurred would affect australia interest extent applicant also claimed default car loan finance company incur loss applicant provided evidence size loan value vehicle question default lender presumably repossess car mitigate loss tribunal considers circumstance neither compelling affect australia interest bearing mind relevant case law policy guideline tribunal also considered evidence applicant respect whether matter raised amount compelling compassionate circumstance affect interest australian citizen australian permanent resident eligible new zealand citizen applicant identified ex husband interest possibly affected tribunal accepts applicant married australian citizen note evidence also divorced get presently friend albeit possible view reconciliation applicant indicated ex husband would upset prospect reconciliation would harmed return china communication ex husband would almost impossible tribunal consider mere possibility reconciliation failed marriage give rise compelling compassionate circumstance accept reconciliation would rendered impossible applicant returned china tribunal accept suggestion applicant ex husband drive truck often travelling would impossible maintain telephone internet contact given proliferation mobile phone internet cafe recent year circumstance tribunal view either compelling compassionate tribunal note ex husband child however applicant offered evidence suggest child interest would way affected departure australia tribunal also regard evidence applicant continued study appears performing well current course apparently recently outlaid substantial sum money towards ongoing education applicant assertion car loan would default return china causing loss ge money however even applicant prevented completing current course paid tribunal accept anyone interest applicant affected finance company referred one sense legal person matter law australian citizen australian permanent resident eligible new zealand citizen although shareholder may tribunal consider effect individually cumulatively loss flowing default one car loan capable amounting compelling compassionate circumstance affect interest tribunal also note submission delay processing applicant visa application lodged 4 april 2005 processed promptly pic 4013 would applied previous visa cancelled 20 july 2005 implication current application would approved visa cancellation giving rise pic obstacle even assuming correct within tribunal power disregard pic 4013 altogether tribunal empowered waive prescribed circumstance present case tribunal satisfied prescribed circumstance exist processing delay gave rise compassionate compelling circumstance would seems tribunal affect applicant would therefore enliven waiver provision conclusion tribunal find none circumstance cited applicant amount compelling circumstance affect interest australia compelling compassionate circumstance affect interest australian citizen australian permanent resident eligible new zealand citizen application made three year cancellation applicant previous visa tribunal satisfied compelling circumstance affect interest australia compelling compassionate circumstance affect interest australian citizen australian permanent resident eligible new zealand citizen justify granting visa within three year cancellation tribunal satisfied applicant satisfies public interest criterion 4013 result applicant cannot meet requirement cl 572 224 applicant therefore fails meet one mandatory requirement subclass 572 visa subclass tu student temporary visa class conclusionsas tribunal found applicant meet cl 572 224 must affirm decision review decisionthe tribunal affirms decision grant applicant student temporary class tu visa paul fishermember date 10 august 2007
Singh v Minister for Immigration & Anor [2017] FCCA 2447 (5 October 2017).txt	singh v minister immigration anor 2017 fcca 2447 5 october 2017 last updated 18 october 2017federal circuit court australiasingh v minister immigration anor 2017 fcca 2447catchwords migration application partner temporary class uk subclass 820 visa whether tribunal considered relevant matter tribunal made finding credit applicant sponsor fabricated claim whether tribunal took account relevant consideration legislation migration act 1958 cth s 5f 368migration regulation 1994 cth r 1 15a sch 2 cl 820 211 cl 820 211 2 ii cl 820 221cases cited singh v minister immigration anor 2015 fcca 1196waensila v minister immigration border protection 2016 fcafc 32applicant jastinder singhfirst respondent minister immigration border protectionsecond respondent administrative appeal tribunalfile number brg 88 2017judgment judge jarretthearing date 4 october 2017date last submission 4 october 2017delivered brisbanedelivered 5 october 2017representationcounsel applicant mr traverssolicitors applicant chand lawyerssolicitors first respondent sparke helmorethe second respondent entered submitting appearanceorders 1 amended application filed 5 september 2017 dismissed 2 applicant pay first respondent cost incidental application fixed sum 5 800 federal circuit courtof australiaat brisbanebrg 88 2017jastinder singhapplicantandminister immigration border protectionfirst respondentadministrative appeal tribunalsecond respondentreasons judgmentthe applicant applies judicial review decision second respondent affirmed decision delegate first respondent refuse applicant partner temporary class uk subclass 820 visa applicant case short compass tribunal decision marred jurisdictional error tribunal take account two matter bore upon evidence given applicant visa sponsor first respondent opposes application argues tribunal obliged take account matter identified applicant event took matter account reached decision second respondent entered submitting appearance party filed written submission backgroundthe background present application lengthy well set first respondent written submission counsel applicant confirmed accuracy first respondent submission regard following recitation background matter taken largely first respondent comprehensive written submission applicant 34 year old indian national arrived australia january 2009 student visa ceased 30 august 2011 27 july 2011 applicant applied temporary skilled visa refused delegate applicant 24 may 2012 subsequent application review migration review tribunal also refused 9 may 2013 30 may 2013 applicant applied combined partner permanent subclass 801 partner temporary class uk subclass 820 visa visa basis relationship wife sponsor alexandria layt 24 june 2013 delegate first respondent refused grant visa basis applicant satisfy cl 820 211 schedule 2 themigration regulation 1994 cth delegate found insufficient evidence delegate satisfied applicant sponsor genuine spouse relationship defined 5f act applicant applied review delegate decision migration review tribunal 6 november 2014 tribunal affirmed delegate decision basis applicant meet criterion schedule 3 regulation tribunal satisfied compelling reason applying criterion required cl 820 211 2 ii applicant applied judicial review tribunal decision dismissed application 11 july 2016 singh v minister immigration anor 2015 fcca 1196 full court federal court australia delivered judgment inwaensila v minister immigration border protection 2016 fcafc 32 applicant appealed dismissal review application appeal allowed consent basis tribunal fell jurisdictional error type identified inwaensila review application remitted administrative appeal tribunal meantime inherited function former migration review tribunal rehearing following remittal 16 november 2016 applicant appeared administrative appeal tribunal give evidence present argument assistance punjabi interpreter tribunal took evidence applicant sponsor m layt refused give evidence 10 minute claiming stressed tribunal also telephoned sponsor mother answer phone tribunal permitted seven day applicant make submission applicant solicitor lodged written submission 23 november 2016 24 november 2016 following submission made sponsor sponsor mother inability give evidence 16 november 2016 hearing second hearing held tribunal 4 january 2017 applicant sponsor sponsor mother gave evidence applicant assisted punjabi interpreter applicant also given friday 6 january 2017 make submission solicitor availed opportunity 6 january 2017 tribunal decisionon 9 january 2017 tribunal affirmed delegate decision refuse applicant partner temporary class uk subclass 820 visa tribunal correctly identified relevant statutory provision bearing application determine convenient set matter spouse defined 5f act spouse 1 purpose act person spouse another person subsection 2 2 person married relationship 2 purpose subsection 1 person married relationship married marriage valid purpose act b mutual commitment shared life husband wife exclusion others c relationship genuine continuing live together ii live separately apart permanent basis 3 regulation may make provision relation determination whether one condition paragraph 2 b c exist regulation 1 15a provides minister considering partner temporary visa application minister must consider circumstance relationship including financial aspect relationship nature household social aspect relationship andthe nature person commitment tribunal noted marriage certificate file recorded party marriage 14 may 2013 found applicant sponsor validly married purpose 5f 2 act tribunal considered matter adumbrated reg 1 15a 3 regulation undertook detailed consideration evidence applicant sponsor sponsor mother relation aspect relationship well limited documentary evidence submitted applicant information tribunal obtained sponsor facebook page tribunal analysed evidence considerable detail lengthy careful reason tribunal concluded applicant sponsor credible witness found applicant contrived relationship sponsor fabricated relationship claim basis upon tribunal came conclusion laid bare tribunal reason tribunal accept document provided applicant demonstrated sponsor shared finance made joint purchase shared household finance liability tribunal found applicant evidence party finance sponsor work support centrelink benefit vague consistent genuine relationship tribunal found 111 reason evidence financial aspect consistent spousal relationship time application time decision household aspect applicant relationship sponsor tribunal considered applicant claim moved sponsor housing commission home correspondence addressed address however given tribunal finding applicant sponsor credibility limited household documentation tribunal accept couple shared household together 85 tribunal reason tribunal considered social aspect applicant relationship sponsor tribunal referred considered evidence applicant mother law placed little weight evidence regularly seen couple together daughter home tribunal also thought inconsistency evidence compared applicant evidence tribunal placed weight unwitnessed statement applicant father law similar statement applicant parent considering evidence applicant friend tribunal considered photographic evidence party social life together said 96 photo provided wedding showed celebrant two people plus baby three photo social situation beach park 4 january 2017 hearing applicant provided photo sponsor sister birthday taken two day hearing 6 january 2017 applicant provided three scanned photo one included applicant tribunal considers limited photo consistent genuine couple social situation spending time together 97 discussed limited photo baby applicant baby young limited photo couple social situation period lack photo sponsor facebook applicant reinforces tribunal view couple socialise together 98 discussed applicant sponsor evidence social activity vague hesitant consistent spend xmas new year together applicant evidence first xmas together also vague changed credible tribunal considers applicant making went along also evident sponsor prepared untruthful spending new year eve together 99 given tribunal finding applicant sponsor credibility limited evidence tribunal accept applicant sponsor socialise 100 tribunal find limited evidence social aspect relationship tribunal accept applicant sponsor committed found account party meeting marriage proposal development relationship child milestone attribute contact sponsor applicant parent inconsistent vague tribunal also found applicant evidence future plan vague hesitant tribunal satisfied time application time decision applicant sponsor genuine spouse relationship consequently applicant meet criterion prescribed cl 820 211 cl 820 221 regulation tribunal also considered alternative criterion cl 820 211 7 820 211 8 820 211 9 820 221 2 820 221 3 schedule 2 regulation considered applicant satisfy either tribunal noted visa application made within 28 day date applicant ceased hold substantive visa 2011 applicant consequently satisfy criterion 3001 schedule 3 regulation required cl 820 211 2 ii schedule 2 regulation unless first respondent satisfied compelling reason applying criterion tribunal considered whether compelling reason applying schedule 3 criterion said 117 tribunal discussed compelling reason applicant said relationship wife stepson supported fully dependent upon 118 expression compelling reason defined purpose however reason sufficiently convincing move decision maker exercise discretion waive requisite criterion circumstance must sufficiently powerful lead decision maker make positive finding favour waiving required criterion mzypz v miac 2012 fca 478at 10 babicci v mimia 2005 fcafc 77 2005 141 fcr 285at 24 circumstance constitute compelling reason applying schedule 3 criterion arise time including visa application made waensila v mibp 2016 fcafc 32 119 however tribunal found applicant genuine relationship time application decision accordingly necessary make finding compelling reason ground reviewby amended application review filed 5 september 2017 applicant press following ground review 1 tribunal engaged conduct amounted jurisdictional error failing consider relevant consideration particular tribunal fell jurisdictional error failing consider medical certificate issued sponsor 16 november 2016 b tribunal fell jurisdictional error failing consider sworn testimony sponsor 2014 tribunal hearing signed statement sponsor 4 november 2012 applicant acknowledges tribunal made various adverse finding sponsor specifically tribunal found applicant sponsor witness truth set tribunal set detail reason reaching conclusion accept large extent tribunal view informed inconsistency perceived tribunal evidence applicant sponsor internal inconsistency within applicant evidence applicant cavil tribunal treatment evidence finding inconsistency sponsor evidence first tribunal hearing 16 november 2016 needed suspended could continue tribunal described occasion sponsor evidence follows 25 16 november 2016 haring sponsor gave evidence couple first meeting development relationship however 10 minute said stressed could remember tribunal gave time take break first refused return hearing eventually returned tribunal explained important give evidence support husband application tribunal noted given evidence tribunal previously sponsor said stressed father child would deported tribunal reassured important give evidence relationship asked tell tribunal development relationship sponsor said could remained hearing child give evidence 26 november 2016 hearing tribunal allowed 7 day submission tribunal considered agent submission 23 november 2016 regarding procedural fairness difficulty giving evidence child request second hearing sponsor mother law give evidence tribunal considered gp letter dated 16 november 2016 27 sponsor may difficulty arranging childcare tribunal note applicant sponsor aware hearing since invitation 7 october 2016 request postponement hearing response noted sponsor mother law would also attend provide evidence 28 gp letter indicates sponsor attended clinic anxiety depression prescribed medication 16 november 2016 medical evidence mention sponsor could give evidence 29 tribunal observed sponsor hearing accept unable give evidence tribunal accept sponsor nose bled otherwise unable give evidence tribunal accept two child hearing waiting give evidence meant could give evidence sponsor child confined hearing room waited outside applicant gave evidence 30 tribunal accept sponsor stressed could remember sponsor proceeded give evidence outset described circumstance first meeting tribunal confirmed sponsor evidence particularly relation first meeting toowoomba started describe proposal however tribunal noted account consistent applicant previous account statement tribunal considers sponsor became stressed stopped giving evidence 31 later sponsor returned hearing tribunal asked describe development relationship said could sponsor however remained hearing room child end hearing 32 event tribunal offered applicant another hearing 4 january 2017 sponsor mother law attended applicant argues medical certificate provided tribunal supporting fact sponsor unwell day hearing argues certificate stated sponsor seen day symptom severe anxiety depression prescribed antidepressant argues 11 tribunal acknowledged receipt medical certificate made comment curious circumstance despite independent evidence medical specialist sponsor condition tribunal accept sponsor nose bled sic otherwise unable give evidence 12 whilst tribunal referred medical certificate evidence actually considered tribunal especially light tribunal finding relation sponsor ability give evidence 13 result medical certificate tribunal ought reservation finding sponsor ability give evidence number observation made argument namely medical evidence medical specialist rather general practitioner letter general practitioner suggest sponsor suffered nose bleed letter general practitioner either expressly implication suggest sponsor unable give evidence andit clear tribunal reason tribunal simply acknowledge letter general practitioner rather analysed content along tribunal member observation sponsor used reach conclusion sponsor ability give evidence finding made tribunal sponsor ability give evidence plainly open material clear forming view sponsor ability give evidence tribunal took account letter general practitioner applicant also advance argument tribunal take account evidence given applicant sponsor hearing first migration review tribunal 2014 first written statement made 2014 basis tribunal reason argument cannot made good apparent tribunal indeed refer evidence given applicant sponsor earlier 2014 hearing specifically tribunal said 19 summary firstly tribunal found applicant evidence hearing vague hesitant forthcoming often shifted secondly evidence consistent evidence first tribunal 29 october 2014 decision 6 november 2014 thirdly evidence consistent sponsor evidence major event first met spent new year eve key baby milestone respect child fourthly tribunal found sponsor evidence vague hesitant credible forthcoming consistent time also non responsive fifthly documentary evidence provided consistent relationship genuine spouse relationship sixthly sponsor facebook page showed relationship another person miggzy october 2016 relationship looking boyfriend 2012 2013 applicant included friend sponsor mother law facebook photo applicant sponsor facebook timeline page 46 applicant sponsor evidence first tribunal 2014 development relationship contact sponsor parent also consistent instance applicant said went gold coast salisbury hotel dinner couple time sponsor mother house go much taxi driver much time picked sponsor every two three week go victory thursday however sponsor evidence went many time beach lot stayed motel tribunal bound refer every piece evidence every contention made applicant tribunal identify material find relevant reasoning give appropriate weight matter mentioned tribunal statement reason usual inference draw tribunal consider matter material sense canvassed 368 act event lightly inferred tribunal overlooked sponsor evidence especially tribunal referred evidence reason decision prepared infer sponsor evidence given 2014 either way oral evidence written statement overlooked considered evidence plainly considered given tribunal remark inconsistency applicant evidence given time accept first respondent submission even find tribunal overlooked sponsor 2014 evidence alleged error respect immaterial must material given finding tribunal applicant sponsor credible witness fabricated evidence claim relationship entirely unlikely tribunal decision would different tribunal summarised reason forming view 19 set conclusionthe applicant establish tribunal decision affected jurisdictional error amended application review must dismissed cost certify preceding thirty nine 39 paragraph true copy reason judgment judge jarrett delivered 5 october 2017date 5 october 2017
Sydney Trains v Australian Rail, Tram and Bus Industry Union [2022] FCA 1262 (24 October 2022).txt	sydney train v australian rail tram bus industry union 2022 fca 1262 24 october 2022 last updated 26 october 2022federal court australiasydney train v australian rail tram bus industry union 2022 fca 1262file number nsd 884 2022judgment raper jdate judgment 24 october 2022date reason 26 october 2022catchwords court judge application respondent recusal basis alleged apprehended bias principle apprehended bias application refusedlegislation fair work act 2009 cth s 19 50 340 343 1 346 408 443 550cases cited charisteas v charisteas 2021 hca 29 393 alr 389ebner v official trustee bankruptcy 2000 hca 63 205 clr 337kostovv director public prosecution nsw 2 2020 nswca 94salama v sydney train 2021 fca 251division fair work divisionregistry new south walesnational practice area employment industrial relationsdate hearing 24 october 2022number paragraph 30counsel applicant mr gottingsolicitor applicant ashurst australiacounsel respondent mr gibian scordersnsd 884 2022between sydney trainsfirst applicantnsw trainssecond applicantand australian rail tram bus industry unionrespondentorder made raper jdate order 24 october 2022the court order respondent recusal application made 23 october 2022 dismissed note entry order dealt inrule 39 32of thefederal court rule 2011 reason judgment deliveredex tempore revised transcript raper jintroductionbyapplicationdated 23 october 2022 respondent australian rail tram bus industryunion seek recuse determination application expedition today hearing determined separate question proposed party competing short minute provided court 20 october 2022 sydney train adopts position neutrality taken court number reference regard particularly respect certain aspect three authority respect proceeding generally court ordered two separate application nsd 884 2022 nsd 885 2022 consolidated sydney train applicationby application dated 18 october 2022 applicant sydney train nsw train commenced proceeding claiming inter alia action undertaken union 3 august 13 august 31 august 10 september 11 september 2022 form industrial action within meaning ofs 19of thefair work act 2009 cth fw act sydney train also sought declaration proposed action notified union 16 october 2022 proposed taken 20 october 2022 proposed 20 october 2022 action indefinitely industrial action within meaning 19 fw act sydney train also sought declaration proposed 20 october 2022 action protected industrial action within meaning 408 fw act addition sydney train claimed various form action taken union contravened 343 1 fw act intent coerce sydney train enter enterprise agreement employee term acceptable respondent period b exercise workplace right enter enterprise agreement form sought sydney train period lastly sydney train claimed union interfered gate sydney train possession intentional constituted trespass good sydney train sought injunctive relief restraining union taking various form previous action taken action proposed 16 october 2022 together order penalty compensation sydney train application union applicationthe following day application dated 19 october 2022 union commenced proceeding seeking declaration proposed 20 october 2022 action opposite claimed sydney train namely industrial action purpose 19 separately action authorised protected action ballot conducted following order fair work commission 443 fw act proposed 20 october 2022 action comprise interrupting performance work purpose deactivating opal gate pressing red deactivation button occasion opal gate deactivated b engaging performance work manner different customarily performed deactivating opal gate pressing red deactivation button occasion opal gate deactivated 20 october 2022 party provided court competing short minute proceeding proceed party sought court deviate ordinary course determine separate question sydney train sought following question answered question 1 whether action notified respondent applicant 3 august 2022 form station staff employee applicant leaving gate open ensuring gate stay open train station 12 01am 13 august 2022 continuing 12 01am 6 september 2022 31 august 2022 form station staff leaving gate open ensuring gate stay open train station 12 01am 10 september 2022 continuing 12 01am 10 october 2022 andon 11 september 2022 form station staff delaying performance work opal machine operative ensure inoperative due commence 12 01am 21 september 2022 continue indefinitely collectively thefirst impugned action form industrial action within meaning phrase section 19 offair work act 2009 cth fw act question 2 whether first impugned action authorised protected action ballot ordered held 24 january 2022 fair work commission protected action ballot declared 9 february 2022 whether first impugned action thereby met additional requirement section 409 2 fw act question 3 whether action notified respondent applicant 16 october 2022 form station staff interrupting performance work purpose deactivating opal gate pressing red deactivation button occasion opal gate deactivated orengaging performance work manner different customarily performed deactivating opal gate pressing red deactivation button occasion opal gate deactivated collectively thesecond impugned action form industrial action within meaning phrase section 19 fw act union sought single separate question claimed appropriate circumstance whether action notified respondent applicant 16 october 2022 form station staff employee applicant interrupting performance work purpose deactivating opal gate pressing red deactivation button occasion opal gate deactivated b engaging performance work manner different customarily performed deactivating opal gate pressing red deactivation button occasion opal gate deactivated industrial action purpose ofs 19of thefair work act 2009 cth application recusalby email 12 19pm sunday 23 october 2022 union made application recuse hearing expedition application today proposed separate question following base union understood sydney train sydney train proposes call m streimer today ultimately occur relation union application expedition determination one separate question sydney train proposes call m streimer mr walsh support case hearing proposed separate question b barrister briefed matter represent sydney train mr walsh salamav sydney train 2021 fca 251 matter sydney train sued former employee mr salama unlawful adverse action contrary s 340 346 fw act breach applicable enterprise agreement contrary 50 mr walsh sued accessory sydney train alleged contravention 550 fw act m streimer mr walsh witness matter consequence union contends occasion reasonable apprehension bias arises articulated letter attached 23 october 2022 email relevant principlesthe party agree whether occasion apprehended bias court must consider whether fair minded lay observer might reasonably apprehend judge might bring impartial mind resolution question judge required decide ebnerv official trustee bankruptcy 2000 hca 63 205 clr 337 6 per gleeson cj mchugh gummow hayne jj addition helpfully taken counsel union recent high court decision dealing specific principle beingcharisteasv charisteas 2021 hca 29 393 alr 389 respect union counsel took paragraph 11 13 ofcharisteas apprehension bias principle judge disqualified fair minded lay observer might reasonably apprehend judge might bring impartial mind resolution question judge required decide principle give effect requirement justice done seen done reflecting requirement fundamental common law system adversarial trial conducted independent impartial tribunal application requires two step first requires identification said might lead judge decide case legal factual merit second must articulated logical connection matter feared departure judge deciding case merit two step taken reasonableness asserted apprehension bias ultimately assessed five judge court said injohnson v johnson fair minded lay observer assumed detailed knowledge law character ability particular judge reasonableness suggested apprehension bias considered context ordinary judicial practice ordinary judicial practice might described context basic judicial practice relevantly clearly stated gibbs cj mason j inre jrl ex parte cjlin 1986 adopting said mcinerney j inr v magistrate court lilydale ex parte cicconein 1972 sound instinct legal profession judge practitioner alike always save exceptional case communication association judge one party legal adviser witness party otherwise presence previous knowledge consent party case way get way judicial officer keep aloof party legal adviser witness neither act expose judicial officer suspicion communication one party behind back without previous knowledge consent party something done affords reasonable basis suspicion confidence impartiality judicial officer undermined footnote omitted reference made toebner gleeson cj mchugh gummow hayne jj said 6 absence suggestion actual bias question arises independence impartiality judge judicial officer juror governing principle subject qualification relating waiver presently relevant necessity may relevant second appeal judge disqualified fair minded lay observer might reasonably apprehend judge might bring impartial mind resolution question judge required decide principle give effect requirement justice done seen done requirement reflects fundamental importance principle tribunal independent impartial convenient refer apprehension bias principle footnote omitted honour continued 19 judge duty exercise judicial function jurisdiction regularly invoked assigned case accordance practice prevails court belong select case hear liberty decline hear case without good cause judge choose case litigant choose judge one party case object particular judge sitting continuing sit objection prevail unless based upon substantial ground contending judge disqualified hearing deciding case considerationat commencement hearing application raised union counsel may premature deal question recusal related final determination separate question moment neither court union proposed constitute evidence sydney train relied upon two possible witness mr walsh m streimer union prevailed upon nonetheless determine question concern relation matter appropriately case managed accept application principle identified incharisteasat 11 requires two step identification said might lead judge decide case legal factual merit b existence articulated logical connection matter feared departure judge deciding case merit note first part recusal application relates hearing case management procedural matter concerning expedition whether separate question arose anticipated apprehension might arise today respect m streimer evidence fact credit issue arising evidence union benefit understanding evidence proposed relied upon sydney train today understood submission union counsel given contained evidence largely attache document raise matter uncontroversial recusal application arises respect determination procedural matter namely whether separate question application expedition however remain extant consideration whether appropriate recuse determining separate question future based union apprehension evidence relied upon sydney train relates evidence mr walsh m streimer regard note taken number authority party grateful note relation course entirely unusual judge previously barrister might called upon determine matter connection duty barrister previous life respect note particular taken aspect decision ofkostovv director public prosecution nsw 2 2020 nswca 94 taken aspect decision identification distinction arises professional association judge one party litigation addition taken one may take account reasonable lay observer would consider reasonable understanding way barrister carry work particular taken 36 38 decision bell p opined reasonable observer would reasonable understanding way barrister carry work reiterated brereton j inbritishamerican tobacco australia ltd v peter gordon 2007 nswsc 109 bata honour noted 63 hypothetical fair minded observer lay person informed relevant fact case sufficiently knowledgeable bring rational reasonable assessment bear question whether judge might biased basic knowledge nature practice bar including barrister become identified client bound rule professional ethic judge professional training tradition oath required discard irrelevant immaterial prejudicial material ordinarily assumed comply judicial oath vakauta v kelly 1989 hca 44 1989 167 clr 568 584 5 precision fabrication pty ltd v roadcon pty ltd 1991 104 flr 260 264 aussie airline 224 taylor v lawrence 2002 ewca civ 90 2003 qb 528 548 61 553f 69 johnson v johnson 2000 201 clr 488 493 12 13 similarly inaussie airlinesat 230 merkel j noted informed observer could presumed general knowledge barrister act client professional capacity could easily briefed fulfil task opposite side accepting brief barrister become part identified client financial interest outcome barrister act member independent bar bound professional code ethic inbata defendant applied brereton j disqualify ground apprehended bias said arise circumstance period four month 2003 bar honour acted bata proceeding defendant contended involved substantially issue would arisen proceeding question 85 brereton j highlighted following proposition relation apprehended bias prior professional relationship judicial officer litigant prior professional relationship lawyer client even long proximate one generally justify reasonable apprehension lawyer becoming judge determine proceeding former client party impartially legal factual merit relevant fair minded observer understands counsel beholden client relationship severed polites aussie airline even given advice former client present litigant issue arises matter court generally give rise apprehension judge expected approach afresh open mind bench issue previously advised illuminated evidence argument polites kartinyeri a1 v king advocated forensically position issue generally give rise apprehension gascor indeed position isa fortiorihaving given advice whereas giving advice involves counsel reaching expressing opinion issue proper advocacy involves presenting tenable argument necessarily reflect counsel opinion issue advice therefore involves far greater potential prejudgment advocacy however judge may considered interest outcome example appropriateness advice issue necessary decide whether course conduct advised judge counsel legally effective appropriate reasonable apprehension bias arise polites a1 v king moreover judge counsel may reasonably supposed gained special knowledge fact prior involvement including privileged material brief may found reasonable apprehension judge may mind extraneous material known least one party r investment lay observer may reasonably think judge might able put information mind regard note barrister briefed appear thesalamacase taken account extracted authority accept reasonable lay observer note distinction barrister client become part identify particular client also note particular case year ago occurred respect action bearing current proceeding whilst accept appeared sydney train mr walsh maintain consistent reasoning ascribed merkle j 37 ofkostov extracted 22 distinction barrister acting behalf someone effect becoming affiliated becoming client addition subject matter ofsalamawas different nature case involved individual bringing action former employer relation perceived adverse action addition claimed breach enterprise agreement bearing subject matter current matter appear suggestion possession confidential information would bearing case acted case note submission made counsel union regard fair minded lay observer may perceive possession least may future become apparent extraneous information nature mr walsh authority reason accepting evidence case later stage reason involvement past also note respect arises assumption future evidence evidence m streimer magnitude likelihood credit large question brought bear determination separate question convinced evidence witness given nature separate question determined court nature credibility witness large bearing determination issue largely understand issue construction arise respect consideration action taken whilst accept submission counsel union highest possibility could dispute particularly mr walsh evidence regarding nature duty performed station staff person determination whether action subject separate question fact lawful action required fw act remain unconvinced circumstance credit issue arise virtue matter view application test enunciated authority fair minded lay observer would circumstance reasonably apprehend might bring impartial mind resolution question required determine instance take account matter already identified included mind fair minded lay observer nature barrister practice distinction client addition note set commencement reason dealing relevant principle judge duty exercise judicial function jurisdiction regularly invoked judge select case hear liberty decline hear case without good cause reason decline application made respondent certify preceding thirty 30 numbered paragraph true copy reason judgment honourable justice raper associate dated 26 october 2022
Nicolouleas v RHG Mortgage Group Limited (Commercial) [2009] NSWCTTT 317 (11 June 2009).txt	nicolouleas v rhg mortgage group limited commercial 2009 nswcttt 317 11 june 2009 nicolouleas v rhg mortgage group limited commercial 2009 nswcttt 317 11 june 2009 last updated 15 july 2009nicolouleas v rhg mortgage group limited commercial 2009 nswcttt 317 11 june 2009 consumer trader tenancy tribunalcommercial divisionapplication com 09 01123applicants constantinos nicolouleas angela nicolouleasrespondent rhg mortgage group limitedapplication early repayment penalty fee relief paymentappearances applicant telephone personms cetojevic respondenthearing 28 may 2009 sydneylegislation consumer credit code section 77orderthe application dismissed reason decisionthe applicationon 8 january 2009 application lodged tribunal specified order sought follows section 77 1 obtain statement amount needed pay credit contract reason requesting order given early november 2008 phoned rhg payout figure mortgage include fee charge penalty amount figure provided 1 discharge fee 695 00 2 legal fee 295 00 3 balance fee 191 658 30 per 30 september 2008 statement penalty fee 4 440 00 interest fee 467 56 provided application continues stating penalty fee provided would paid loan would waited 30 january 2009 date would third anniversary loan therefore early repayment fee penalty fee would apply applicant pose question would payout hisloan early liable pay penalty fee applicant claim rhg provide right information therefore misled seek reimbursement total amount penalty fee 4 440 00 mr nicolouleas hearing 15 april 2009 stated sure called twice requesting information one time definitely 15 september 2008 written statement filed dated 20 april 2009 mr nicolouleas state calling rhg mid september requesting payout figure received bank statement period 01 april 2008 30 september 2008 assumed closing balance 191 658 30 payout figure go state mid october telephoned rhg asked penalty fee paid account early told mortgage discharge fee legal fee claim stated penalty fee mr nicolouleas writes reason telephoned rhg occasion regard fee taken rhg bank statement westpac refinance loan westpac told may penalty fee early repayment phone rhg confirm state told westpac rhg said penalty fee exception fee evidence earlier hearing 15 april 2009 mr nicolouleas also claimed aware early repayment fee applicant executed document broker advised fee signed document broker respondent response officer reviewed telephone call made applicant according record call received contact made september 2008 transcript provided sound recording conversation one telephone call logged made 12 november 2008 indicates request made discharge authority form sent 30 september 2009 applicant provided 6 month statement loan period 1 april 2008 30 september 2008 according rhg issued automatically every 6 month sent applicant requested 18 november 2008 discharge authority form submitted applicant appointed westpac applicant agent proposed settlement date 25 november 2008 form indicated applicant undertook pay fee charge connection discharge mortgage respondent dealt westpac applicant agent relation discharge accordance instruction discharge form 20 november 2008 indicative payout provided writing included amount collected administration fee discharge fee early repayment fee interest discharge date 9 december 2008 updated payout amount preparation settlement arranged westpac 11 december 2008 respondent position provide statement accordance section 77 1 theconsumer credit codeto westpac acted agent behalf applicant applicant appointed westpac agent responsibility agent advise applicant amount payable considerationthere considerable force submission respondent recollection date mr nicolouleas somewhat unreliable number inconsistency stated mr nicolouleas application oral evidence later written statement set respondent final submission record discussion telephone applicant various officer respondent assist applicant case first satisfied documentary evidence establishes contract clearly provides early repayment fee loan repaid 3 year settlement date settlement date defined date lend first part loan amount accept applicant loan settled 30 january 2009 fund made available applicant date discussed mr nicolouleas commencement loan made issue telephone conversation 13 july 2006 18 july 2006 appear indicate applicant aware commencement date loan agreement argued respondent telephone conversation 12 may 2008 mr nicolouleas advised early repayment fee date commencement applicant loan noting mr nicolouleas disagreed agree submission made respondent applicant aware early repayment fee would apply 30 january 2008 importantly late 2008 respondent provided agent applicant westpac notice early repayment fee would payable westpac applicant agent mr nicolouleas state westpac raised possibility penalty fee early repayment prior settlement considered evidence satisfied applicant made case relieved payment early repayment fee either section 77 theconsumer credit codeor basis application dismissed john bordonsenior memberconsumer trader tenancy tribunal11 june 2009
Hume C120 (PSA) [2010] PPV 68 (21 June 2010).txt	hume c120 psa 2010 ppv 68 21 june 2010 last updated 27 july 2010hume planning schemeamendment c120craigieburn r2precinct structure planpanel report17 june 2010hume planning schemeamendment c120craigieburn r2precinct structure planpanel reportrodger eade chairalison glynn memberpeter newman member17 june 2010contentsappendiceslist figuresexecutive summarygrowth area planning victoria represents new way planning emerging community fringe metropolitan melbourne implement precinct structure plan psp urban growth zone ugz psps include allocation land residential employment community business purpose well allocation open space integrated water management public us area growth area authority gaa responsibility implementing psp ugz process throughout six growth area municipality outer fringe melbourne psp guideline approved october 2009 provide guidance stakeholder gaa prepared psp craigieburn r2 area area 455 hectare approximately 25 km melbourne cbd r2 area proposed accommodate 15 000 people 5 300 dwelling psp prepared consultation hume city council major landholder developer participated relevant working group two plus year period development psp craigieburn r2 psp related document placed public exhibition one month november 19 2009 result exhibition 12 submission received referred panel comprising rodger eade chair alison glynn peter newman public hearing held 2 4 march 13 16 april 2010 office planning panel victoria result written submission submission made hearing expert evidence panel considered material prepared report report panel ass psp first principle rather concentrate issue remained unresolved gaa submitter conclusion hearing included biodiversity issue development contribution plan dcp provision passive open space issue raised roman catholic trust corporation rctc together range matter respect biodiversity issue panel undertook analysis context objective planning victoria aim determining net community benefit panel found need broader strategic approach implementing native vegetation framework nvf rather prescriptive site site approach detailed appendix 4 nvf panel also find need rationalise clarify intent large body word relating native vegetation protection planning practice note state policy panel heard number lengthy submission respect protection golden sun moth gsm habitat gsm classified critically endangered provision relevant federal legislation panel role respect commonwealth legislation urged submitter make recommendation state turn make recommendation commonwealth prescription impacting gsm however commonwealth approved prescription relating gsm specie last day hearing panel therefore make recommendation respect funding land construction arterial road significant component many psps apportionment cost associated development contribution plan impact significantly final charge per hectare therefore final price charged land particular instance craigieburn road declared arterial road state responsibility panel view consistent vicroads responsibility dcp guideline relevant psps appropriate approach take total cost associated acquiring land ultimate configuration craigieburn road apportioned dcp vicroads responsibility construction major concern regarding provision open space related approach used provision passive open space gaa proposed equalisation approach whereby provided land passive open space would financially compensated contribution underprovided hume city council proposed major land holder required provide land open space agreed percentage landholding council argued administratively simpler panel concluded approach proposed gaa appropriate submission made respect siting proposed catholic primary school psp area way catholic school treated dcps extensive convincing evidence put panel significance role rctc providing primary secondary education victoria panel concurs cranbourne east psp panel casey c119 finding considers charging catholic school full development contribution road intersection work inequitable follows cranbourne east panel suggests interim levy 25 full contribution charge urge gaa review approach taken catholic school dcps overall panel find craigieburn r2 psp provides appropriately future growth development area subject number amendment psp related document amendment c120 hume planning scheme adopted include number significant alteration schedule 1 urban growth zone 1 introductionamendment c120 hume planning scheme seek facilitate development land craigieburn r2 precinct structure plan cr2psp growth area predominantly residential employment us including residential neighbourhood mix density provide 5 300 dwelling accommodate approximately 15 000 people two neighbourhood activity centre nac two local activity centre small mixed use employment area andinfrastructure including major road school community facility recreation area amendment implemented introduction urban growth zone ugz cr2psp development contribution plan cr2dcp craigieburn r2 native vegetation precinct plan cr2nvpp hume planning scheme various consequential change panel consider amendment c120 hume planning scheme appointed delegation minister planning 29 december 2009 comprised emeritus professor rodger eade chair m alison glynn mr peter newman amendment c120 prepared growth area authority gaa planning authority specific component amendment discussed detail chapter2of report amendment exhibited 19 november 2009 18 december 2009 consequence 12 submission received list submitter included submission referred panel direction hearing held tuesday 2 february 2010 public hearing relation amendment held office planning panel victoria 2 march 4 march 13 april 16 april 2010 time following party represented heard submitterrepresented bygrowth area authority planning authority stuart morris qc assisted adele patterson barrister travis conway gaa hume city council responsible authority karina shpigel dla phillips fox aaron chile council department sustainability environmentmark winfield manager biodiversity port phillip region assisted michelle mchugh project leader psps adam muir principal policy officer alan webster senior biodiversity officer vicroadslawrence seyers villawood propertiesjohn cicero solicitor best hooper assisted chris de silva villawood called evidence paul kelly ecologistpeet craigieburnjeremy gobbo qc assisted peter farrell part 1 hearing counsel juliet forsyth part 2 hearing mr farrell called evidence stephen hunt cardno grogan richards matt ainsaar urban enterprisems forsyth called evidence aaron organ ecology partner roman catholic trust corp archdiocese melbournechris wren sc brief davis langdonvicurbanphil bisset solicitor minter ellisonurban pacifictim power solicitor freehills jason black town planner insight planning consultant submitter hume amendment c120 follows submitter1department education early childhood development2urban pacific3davis langdon behalf roman catholic trust corporation4department sustainability environment5mr joe hanna6melbourne water7victorian urban development authority vicurban 8peet estates9hume city council10public transport division department transport11vicroads12villawood propertiesthe department transport initially requested heard hearing withdrew request hearing commenced issue resolved negotiation gaa prior hearing expert witness report due exchanged week prior proposed commencement hearing panel made aware concern amongst submitter unresolved biodiversity issue identified discussion gaa dse gaa therefore sought delay commencement hearing result panel issued following direction panel approached gaa requesting hearing amendment hume c120 delayed two day dse requirement relation golden sun moth habitat panel unwilling delay hearing date preset known party time however given issue one relatively discreet panel proposes issue except issue associated golden sun moth habitat proceed originally timetabled proposed issue associated golden sun moth heard thursday march 11 reserve day original timetable day gaa would present submission issue dse submitter would also given opportunity make submission party requested respond midday tomorrow friday february 19 requested indicate whether impacted proposal impacted requested indicate whether proposed approach acceptable agree approach acceptable please indicate amount time would request thursday march 11 panel agreement proposal midday friday february 19 proposed call direction hearing 2 pm tuesday february 23 resolve issue managed intended inform party close business friday whether direction hearing need proceed panel subsequently called urgent direction hearing tuesday 23 february 2010 split hearing two phase first commencing march 2 dealing non biodiversity issue second commencing april 13 addressing mainly biodiversity issue reaching conclusion recommendation panel read considered submission including written verbal presentation well range material referred relation amendment particular panel emphasis taken broad strategic approach addressing particular issue put formulating recommendation pain carefully balance economic social environmental consideration required panel also note consideration challenging biodiversity issue put treated broad context panel informed commonwealth also required use similar broad strategic framework considering matter put provision theenvironment protection biodiversity conservation act 1999 panel note council gaa given opportunity make closing submission hearing closing submission gaa addressed biodiversity issue issue raised roman catholic trust corporation reason panel assumed preparing report final gaa position issue put gaa opening submission put amended documentation provided hearing panel thanks party way presented contributed process information provided 2 craigieburn r2 precinct structure planamendment c120 applies land shown figure 1 craigieburn r2 precinct structure planthe key element psp area land 455 hectare located approximately 25 kilometre north melbourne cbd land generally bounded mt ridley road north aitkin hill conference centre south western boundary follows white lane oliver road rural property boundary eastern boundary extent existing urban zoned land forming part highland estate land part flat slope general south principal environmental feature aitken creek remnant gum grey box woodland area degraded grassland planted wind break windrows throughout given previous current use area farming precinct substantially cleared andcraigieburn road run east west site essentially creating two large neighbourhood within psp area 2 1 precinct structure planoverviewthe cr2psp prepared gaa association hume city council relevant government agency drawing expertise four major development proponent vicurban villawood peet urban pacific consultation taken place two year period psp working group comprising gaa council four major developer met regularly period contribute psp development review work undertaken cr2psp long term strategic framework document describes craigieburn r2 area developed including future infrastructure service provision cr2psp informed state planning policy framework council lppf prepared context key strategic document development cr2psp also informed several background report including r2 precinct structure plan craigieburn urban development cultural heritage management plan 10575 draft tardis enterprise pty ltd 19 june 2009 traffic modelling hume corridor rev 3 ashton traffic service september 2009 craigieburn r2 precinct structure plan assessment community infrastructure requirement opportunity draft asr research august 2008 hume corridor growth area economic development employment analysis final report essential economics pty ltd february 2010 growth area authority report craigieburn r2 precinct infrastructure servicing report ghd october 2008 craigieburn r2 precinct structure plan flora fauna existing condition report version 6 practical ecology 6 july 2009 r1 greenvale north r2 craigieburn urban growth zone golden sun moth survey version 3 practical ecology 13 july 2009 implementationthe proposed urban development framework craigieburn r2 implemented principally clause 37 07 urban growth zone clause 52 16 native vegetation precinct plan nvpp ultimately cr2psp incorporated document clause 81 planning scheme ugz new planning control established manage transition undeveloped non urban land urban land replaces previous set planning control used growth area typically established zone plus development plan overlay development contribution plan overlay new provision intends make planning process le complex easier understand community landowner planning professional ugz make cr2psp primary plan guiding development craigieburn r2 area removing need plan reducing number approval needed precinct structure plan guidelinesthe precinct structure plan guideline psp guideline launched minister planning 7 october 2009 replacing earlier draft version psp guideline released gaa 2006 psp guideline apply preparation precinct structure plan new residential community new employment area purpose psp guideline set addressed preparing assessing precinct structure plan seek increase consistency certainty growth area planning assist timely preparation completion precinct structure plan support drafting requirement ugz related part victoria planning provision vpp andfacilitate creation unique new community better place live respond challenge future panel satisfied cr2psp generally consistent psp guideline however discussed recommended following chapter belief gaa council review revise structure general content final psp guideline without changing intent 2 2 development contribution planoverviewthe new community craigieburn requires range network associated infrastructure item support development cr2dcp identifies infrastructure item required new community apportions cost infrastructure across cr2psp area cr2dcp refers state local planning policy framework hume planning scheme strategic basis requires developer build contribute various site infrastructure satisfaction council cr2dcp prepared accordance withpart 3bof theplanning environment act1987
1109439 [2012] MRTA 1408 (21 May 2012).txt	1109439 2012 mrta 1408 21 may 2012 last updated 31 may 20121109439 2012 mrta 1408 21 may 2012 decision recordapplicants mr wanthana jutilamtongmr vorapoj jutilamtongmrt case number 1109439diac reference bcc2009 381781tribunal member dione dimitriadisdate 21 may 2012place decision sydneydecision tribunal jurisdiction matter statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant applicant skilled provisional class vc visa unders 65of themigration act 1958 act applicant applied department immigration citizenship skilled provisional class vc visa 9 october 2009 delegate decided refuse grant visa 24 august 2011 notified applicant decision review right letter dated 24 august 2011 applicant applied tribunal 9 september 2011 review delegate decision since tribunal advised applicant withdrawn application review relevant lawa decision refuse grant skilled provisional class vc visa unders 65of act mrt reviewable decision covered bys 338 2 act valid application made unders 347of act review mrt reviewable decision tribunal must review decision unless decision relation minister issued conclusive certificate 348of act however applicant may withdraw application review time determined applicant review withdraws application longer valid application review tribunal circumstance tribunal jurisdiction conduct review szasd v mimia 2004 fmca 472 finding reasonson 19 april 2012 tribunal wrote applicant invited appear tribunal hearing 24 may 2012 18 may 2012 applicant representative telephoned tribunal stated applicant would like withdraw application review 21 may 2012 tribunal received withdrawal application review signed first named applicant behalf applicant stating withdraw application review tribunal satisfied circumstance set application review withdrawn accordingly tribunal find longer valid application therefore tribunal jurisdiction review delegate decision decisionthe tribunal jurisdiction matter dione dimitriadismember
Adapt-A-Lift Group Pty Ltd [2019] FWCA 2068 (28 March 2019).txt	adapt lift group pty ltd 2019 fwca 2068 28 march 2019 last updated 29 march 2019 2019 fwca 2068fair work commissiondecisionfair work act 2009s 185 enterprise agreementadapt lift group pty ltd ag2018 5351 adaptalift group collective agreement victoria tasmania 2018manufacturing associated industriesdeputy president colmanmelbourne 28 march 2019application approval adaptalift group collective agreement victoria tasmania 2018 1 adapt lift group pty ltd made application approval enterprise agreement known theadaptalift group collective agreement victoria tasmania 2018 agreement pursuant tos 185of thefair work act 2009 act agreement single enterprise agreement 2 employer provided written undertaking copy undertaking attached annexure satisfied undertaking cause financial detriment employee covered agreement undertaking result substantial change agreement 3 subject undertaking referred basis material contained application accompanying statutory declaration satisfied requirement ofss 186 187 188and190as relevant application approval met 4 agreement approved 28 march 2019 accordance withs 54 operate 4 april 2019 nominal expiry date agreement 28 march 2023 deputy presidentprinted authority commonwealth government printer ae502582pr706325 annexure
1202352 [2013] MRTA 1748 (1 August 2013).txt	1202352 2013 mrta 1748 1 august 2013 last updated 16 august 20131202352 2013 mrta 1748 1 august 2013 decision recordapplicant mr filippo borgiolimrt case number 1202352diac reference bcc2012 12605tribunal member rania skarosdate 1 august 2013place decision sydneydecision tribunal remit application temporary business entry class uc visa reconsideration direction visa applicant meet following criterion subclass 457 visa cl 457 223 4 schedule 2 regulation statement decision reasonsapplication reviewthis application review decision delegate minister immigration refuse grant visa applicant temporary business entry class uc visa unders 65of themigration act 1958 act visa applicant applied visa 5 january 2012 time visa application lodged class uc contained following subclass subclass 456 subclass 457 tribunal jurisdiction relation decision refuse subclass 456 visa criterion subclass 457 visa set inpart 457of schedule 2 themigration regulation 1994 regulation one criterion satisfied time decision cl 457 223 requires visa applicant satisfy one alternative stream visa one stream contained cl 457 223 4 set attachment decision present case specific claim made cl 457 223 4 applies sponsorship employment occupation standard business sponsor claim made respect alternative stream cl 457 223 delegate refused grant visa 2 february 2012 basis cl 457 223 4 eb met delegate satisfied applicant met english language proficiency requirement applicant applied tribunal review delegate decision applicant represented relation review registered migration agent response invitation provide information tribunal received copy notification approved nomination respect applicant submission applicant representative arguing applicant exempt english language requirement following reason tribunal concluded matter remitted reconsideration consideration claim evidencenominationclause 457 223 4 requires approved nomination occupation relating applicant standard business sponsor ceased basis recently approved nomination dated 22 june 2013 respect applicant occupation mechanical engineering technician 312512 alto artarmon pty ltd sponsor standard business sponsor time approval tribunal find applicant meet cl 457 223 4 reason requirement cl 457 223 4 met englishthe delegate case refused grant subclass 457 visa applicant applicant met requirement relating english number amendment made english language requirement since 1 july 2013 apply 457 visa application finally determined accordingly tribunal must ass application legislative requirement effect time decision english language requirement visa set cl 457 223 4 ea eb ec clause 457 223 4 eb requires applicant vocational english applicant exempt subclause 6 apply least 1 paragraph ea ii apply information recently approved nomination indicates base salary 69 000 tribunal accordingly satisfied cl 457 223 6 apply applicant purpose cl 457 223 4 eb ii relation cl 457 223 4 ea tribunal note evidence indicate mechanical engineering technician working nsw required hold license registration membership required cl 457 223 4 ea ii accordingly tribunal find neither paragraph cl 457 223 4 ea apply purpose cl 457 223 4 eb iii relation cl 457 223 4 eb tribunal considered whether cl 457 223 11 applies applicant whether applicant exempt demonstrating vocational english exemption english language requirement set inimmi 13 099and paragraph 3 legislative instrument relevantly state applicant lodged visa application instrument applies 1 july 2013 subject approved nomination application approval nomination made 1 july 2010 occupation require level english language competency grant however described registration license membership ii nominated application approval nomination occupation approved position occupation anzsco major group 1 2 4 5 6 sub major group 31 unit group 3993 case applicant lodged visa application 1 july 2013 relation 3 tribunal satisfied applicant subject approved nomination application approval made 1 july 2010 occupation required level english language competency grant registration license membership relation 3 ii tribunal also satisfied applicant nominated occupation approved position occupation anzsco sub major group 31 evidence tribunal find applicant exempt paragraph 3 ofimmi 13 099applies basis tribunal satisfied applicant exempt applicant defined cl 457 223 11 purpose cl 457 223 4 eb accordingly applicant required vocational english required cl 457 223 4 eb basis tribunal find cl 457 223 4 eb apply applicant tribunal also considered whether require applicant demonstrate english language proficiency provided cl 457 223 4 ec specified manner however considering evidence tribunal decided necessary circumstance particular case applicant demonstrate english language proficiency tribunal accordingly find cl 457 223 ec applicable case conclusiongiven finding appropriate course remit application visa minister consider remaining criterion subclass 457 visa decisionthe tribunal remit application temporary business entry class uc visa reconsideration direction visa applicant meet following criterion subclass 457 visa cl 457 223 4 schedule 2 regulation rania skarosmemberattachment clause 457 223 extract standard business sponsorship457 223 4 applicant meet requirement subclause following applies nomination occupation relation applicant approved section 140gb act ii nomination made person standard business sponsor time nomination approved iii approval nomination ceased provided inregulation 2 75 aa nominated occupation specified instrument writing paragraph 2 72 10 aa effect ba either nominated occupation specified minister instrument writing subparagraph ii following applies applicant employed work nominated occupation b person made approved nomination met paragraph 2 59 e paragraph 2 68 e f person recent approval standard business sponsor applicant employed work position person business business associated entity person c person made approved nomination met paragraph 2 59 h paragraph 2 68 person recent approval standard business sponsor applicant employed work position person business minister satisfied applicant intention perform occupation genuine ii position associated nominated occupation genuine da applicant skill qualification employment background minister considers necessary perform task nominated occupation e minister requires applicant demonstrate skillsthat necessaryto perform occupation applicant demonstrates skill manner specified minister ea applicant would required hold licence registration membership mandatory perform occupation nominated relation applicant ii order obtain licence registration membership applicant would need demonstrate competent english proficient english concessional english superior english note competent english proficient english concessional englishandsuperior englishare defined inregulations 1 15bto1 15ea applicant proficiency english least standard required grant however described licence registration membership eb applicant exempt applicant ii subclause 6 apply applicant iii least 1 subparagraphs ea ii apply applicant vocational english ec minister requires applicant demonstrate english language proficiency applicant demonstrates english language proficiency manner specified minister f either adverse information known immigration person made approved nomination mentioned paragraph person associated person ii reasonable disregard adverse information known immigration person made approved nomination mentioned paragraph person associated person 6 subclause applies applicant base rate pay applicant term condition employment minister last satisfied paragraph 2 72 10 c least level salary worked way specified minister instrument writing paragraph b minister considers granting subclass 457 visa applicant would interest australia 11 subclause 4 exempt applicantmeans applicant class applicant specified minister instrument writing subclause
Department of Health and Aged Care [1999] AUSStaCSDLM 70 (23 April 1999).txt	department health aged care 1999 ausstacsdlm 70 23 april 1999 department health aged careallocation amendment principle 1999 1 96 1 theaged care act 1997aged care act 1997made31 03 99tabled19 04 99 shrsummaryprovides matter secretary may consider considering application place community care grant amendment principle 1999 1 96 1 theaged care act 1997aged care act 1997made31 03 99tabled19 04 99 shrsummaryadds additional criterion allocation community care grant determination ihs4 1999 paragraph bj schedule 1 thenational health act 1953national health act 1953made15 03 99tabled19 04 99 shrsummaryamends level benefit payable category overnight hospital treatment extra service amendment principle 1999 1 96 1of theaged care act 1997aged care act 1997made31 03 99tabled19 04 99 shrsummaryprovides matter secretary may consider considering application extra service status residential care grant amendment principle 1999 1 96 1 theaged care act 1997aged care act 1997made31 03 99tabled19 04 99 shrsummaryprovides matter secretary may consider considering application residential care grant therapeutic good amendment regulation 1999 1 statutory rule 1999 62therapeutic good act 1989made15 04 99tabled20 04 99 shrsummaryprovide operation complementary medicine evaluation committee
1511185 (Refugee) [2016] AATA 3832 (12 May 2016).txt	1511185 refugee 2016 aata 3832 12 may 2016 1511185 refugee 2016 aata 3832 12 may 2016 last updated 27 may 20161511185 refugee 2016 aata 3832 12 may 2016 decision recorddivision migration refugee divisioncase number 1511185country reference chinamember christine codydate 12 may 2016place decision sydneydecision tribunal affirms decision grant applicant protection visa statement made 12 may 2016 5 20pmany reference appearing square bracket indicate information omitted decision pursuant tosection 431of themigration act 1958and replaced generic information allow identification applicant relative dependant statement decision reason application reviewbackgroundthe applicant national people republic china china seek granted protection visa unders 65of themigration act 1958 act first arrived australia august 2011 student february 2013 applied department immigration protection visa claimed feared persecution result involvement participation xiang gong china applicant invited attend interview delegate attend application refused delegate july 2013 delegate stated applicant provided insufficient detail support claim could accepted based upon assertion 2013 applicant applied review refugee review tribunal first tribunal differently constituted 22 september 2014 first tribunal affirmed delegate decision basis applicant attend hearing insufficient detail accept applicant claim 1311419 2015 applicant lodged application review decision refugee review tribunal differently constituted second tribunal 1500411 found jurisdiction consider review ground already application review lodged determined applicant applied judicial review application given leave amend judicial review application seek review decision first tribunal matter 1311419 remitted consent basis failure first tribunal send hearing invitation applicant last known address matter current tribunal 1511185 theapplicant invited attend hearing tribunal unable make favourable decision information applicant provided submission document tribunal support claim appeared tribunal 29 april 2016 give evidence present argument tribunal hearing conducted assistance interpreter mandarin english language claimsthe applicant claim set protection visa application lodged department statement february 2013 according document claim born year town hebei province ethnicity han religion xianggong never married parent sibling remain china number year education lastly attending name university year year october 2010 may 2011 worked resided workplace passport issued 2009 difficulty obtaining passport left china august 2011 travel outside home country prior travel australia travelled australia student tu 570 august 2011 provides detail study work carried australia although suggests unlawful casual work australia speaks read writes chinese read writes english contact father schoolmate china commenced learning practising cultivation practice xiang gong end 2007 learned friend commencing practice applicant felt energised focused study another number friend also joined practice xiang gong university practised xiang gong evening quiet place university campus june 2011 went dinner friend number friend practised xiang gong private dining room one friend suggested practice inside restaurant end meal agreed asked restaurant staff move dining table chair aside practised xiang gong together completed practice police suddenly came restaurant detained including applicant police station beaten belt electric baton applicant suffered electric shock caused blackout cold water poured make come around questioned taught xiang gong say anything struck electric baton lost consciousness next thing knew parent taking care found paid fine 5000 rmb police said member evil cult banned government first offence punished fine would give undertaking would offence otherwise would arrested sent labour camp resting home five day returned beijing resume work however dismissed employer member evil cult practice xiang gong realised would leave country target persecution option go democratic country came australia protect right personal belief applicant indicated application form would provide document support claim would posted schoolmate china however document provided hearing tribunal applicant said studied one month city arrived australia august 2011 moved another city october 2011 study anymore instead worked initially variety manual job october 2011 date worked full time five six day week applicant claim currently practice xiang gong instead claimed christian although claim tribunal would face harm basis applicant said practiced xiang gong australia one month stopped started work tribunal said understand would stop said xiang gong way improve health started work occupation physically demanding like xiang gong exercise feel tired tribunal concerned statement signed february 2013 referred religion xiang gong gave indication accordance evidence tribunal stopped practicing xiang gong one month arrived australia october 2011 responded occasionally tribunal noted statement xiang gong gave indication effectively given religion made statement said made application would arrested harmed return basis record police member evil cult xiang gong tribunal put applicant issue concern well information pursuant tos 424aaof act country evidence accordance ministerial direction 56 tribunal also taken account country information assessment prepared dfat expressly protection status determination purpose dfat country information report china 3 march 2015 dfat report dfat thematic report unregistered religious organisation group people republic china 3 march 2015 dfat thematic report applicant told tribunal may detained like falun gong practitioner tribunal put falun gong practitioner agreed tribunal put basis country information referred seem like would considered falun gong practitioner tribunal put applicant according united state department state international religion freedom report 2012 china xiang gong opposed falun gong considered illegal china prc government banned falun gong anti cult provision criminal law 1999 spiritual movement including xiang gongand yan xin qigong free practice 1 response applicant said banned cult however offer information evidence support noted applicant raised hearing attending church tribunal put applicant hearing information dfat report note religion3 12 official statistic state around 100 million religious believer china including 23 million protestant six million catholic 22 million muslim difficult quantify number daoists buddhist china mostly private nature faith chinese government claim 5 500 religious group china along nearly one hundred religion affiliated academic institution many 140 000 registered place religious activity officially 360 000 registered religious clergy reality number religious believer estimated much higher rising particularly among believer unregistered religious organisation see separate dfat thematic report unregistered religious organisation group 2 2 11 broadly speaking dfat ass religion china practised within state sanctioned boundary long practice challenge interest authority chinese government 3 tribunal put applicant according report would indicate even accept attending church would want attend church china relation doubt 100 million believer china would appear could go back attend church manner attends australia appear faced real chance serious harm real risk significant harm response applicant said hope concern returning record police evil cult concerned take tribunal noted concern claim accept claim appeared nothing country situation set dfat report tribunal required regard would indicate would face real chance serious harm real risk significant harm china relevant evidence information set finding reasonscountry referencethe applicant produced tribunal passport issued chinese authority tribunal accepts applicant national china appropriate country reference assessment refugee claim receiving country purpose complementary protection claim china credibilitythe mere fact person claim fear persecution particular reason establish either genuineness asserted fear wellfounded reason claimed similarly applicant claim face real risk significant harm establish risk exists harm feared amount significant harm remains applicant satisfy tribunal statutory element made pursuant 5aaa act responsibility applicant specify particular claim person australia protection obligation provide sufficient evidence establish claim tribunal responsibility obligation specify assist applicant specifying particular claim tribunal responsibility obligation establish assist applicant establishing claim although concept onus proof appropriate administrative inquiry decision making relevant fact individual case supplied applicant much detail necessary enable examiner establish relevant fact decisionmaker required make applicant case tribunal required accept uncritically allegation made applicant miea v guo anor 1997 191 clr 559at 596 nagalingam v milgea 1992 fca 470 1992 38 fcr 191 prasad v miea 1985 fca 47 1985 6 fcr 155at 16970 tribunal number concern applicant inconsistent changing credible evidence past event fear upon return china tribunal find applicant credible truthful reliable witness relation matter central related claim tribunal concern set firstly tribunal concerned inconsistency applicant statement evidence tribunal detail claim set applicant told tribunal detained due xiang gong tortured forced admit cult member claim forced admit cult member inconsistent however statement tribunal asked admitted cult member said questioned beaten june 2011 tribunal put inconsistent statement claimed tell authority anything held explain inconsistency repeated evidence tribunal applicant gave evidence tribunal chose stop working would arrested also inconsistent statement claimed tried return work could dismissed work said employer would sacked involved cult tribunal also noted according application form stopped working job may 2011 asked whether correct agreed tribunal noted also inconsistent statement arrested june 2011 lost job decided leave possible stopped working may 2011 said july resigned difference resigning sacked tribunal asked one applicable said sacked tribunal considers applicant would able give consistent evidence whether sacked quit employment considers well inconsistency referred undermines credibility claim secondly tribunal concern applicant inconsistent evidence concerning applied student visa come australia according statement arrested tortured released sacked employer 4 realised could remain china practice cultivation human right decided option go democratic country contacted travel agency could help obtain visa applicant told tribunal decided apply student visa come australia released lost job tribunal noted inconsistent statement said lost job realised needed leave china target persecution chinese authority explain inconsistency repeated evidence tribunal tribunal concerned claimed timing decision apply leave china noted according statement decision must occurred time date june 2011 even decision apply student visa made detention claimed hearing decision would made date june 2011 insisted date date detention june 2011 however put applicant pursuant tos 424aaof act according departmental record applicant made student visa application june 2011 even detained response applicant said applied student visa june 2011 5 employer family supported june arrested already applied come australia student visa come australia democratic country tribunal considered response however explain applicant claim repeated statement hearing reason applying student visa detained tribunal considers inconsistent evidence undermines credibility claim detained tortured lost job decided come australia escape persecution could practice religion thirdly tribunal concerned applicant delay leaving china student visa granted tribunal note applicant claimed statement option go democratic country unable practice religion target persecution chinese government however according departmental record student visa granted june 2011 delayed departing china date august 2011 period almost two month tribunal put information applicant pursuant tos 424aaof act said visa granted wanted come immediately grandmother sick delayed tribunal find response explains delay almost two month given serious claim tortured sacked facing persecution knew target chinese government circumstance tribunal considers applicant would left china soon possible avoid harm claim true tribunal considers delay leaving china undermines claim experienced harm claimed fourthly tribunal concerned applicant evasive inconsistent changing evidence delay lodging protection visa application whether saw migration agent set tribunal noted arrived australia august 2011 sign protection visa application february 2013 applicant told tribunal china aware could apply protection visa australia tribunal asked lodge protection visa application came australia said know apply tribunal asked enquiry made applying said enquired friend lodged protection visa application friend seen lawyer tribunal asked applicant gone see agent said saw old man friend friend tribunal noted answering question asked whether seen agent said friend tribunal put applicant fear persecution would expect would consulted expert field could help response applicant said thought could find everything internet tribunal asked applicant could take long arrival august 2011 sign protection visa application february 2013 responded need prepare find information computer asked friend tribunal put applicant see would take 18 month response applicant said think consulted time agent lawyer tribunal noted earlier asked whether done said asked changing evidence said occurred tribunal asked applicant whether wanted say anything delay said came australia know australia stopped studying went work time busy tribunal find explanation delay persuasive tribunal also concerned applicant gave inconsistent evidence lodge protection visa earlier noted claim despite student visa studied one month initially told tribunal however lodge protection visa application thought would allowed study tribunal put applicant chance study hard accept reason lodge protection visa application response applicant said original plan transferred city know transfer school worked get money tribunal find applicant explanation lodge protection visa application earlier persuasive according delegate decision record applicant student visa cancelled december 2011 remained unlawfully present australia lodge protection visa application date february 2013 tribunal put information applicant pursuant tos 424aaof act response applicant said came australia adapted life worrying arrested enjoyed freedom application delayed working asked friend came know could make application tribunal considered response however find persuasive noting also claimed aware could make application came australia tribunal also taken account reason offered applicant statement namely thought public security bureau psb might know protection visa application family member would involved make mind lodge application hard get work without work permit decided lodge protection visa application tribunal considers applicant serious fear confidentiality application could made enquiry told tribunal noted working full time basis october 2011 date undermines explanation could get work tribunal consider explanation persuasive tribunal considers applicant consulted agent obtained advice would remembered would told tribunal asked tribunal considers likely applicant failed make enquiry migration situation instead spent time working australia tribunal also considers unlikely applicant wanted study australia given lack study australia tribunal considers significant delay lodging protection visa application arrival cancellation visa tribunal considers claim true would made enquiry immigration status could protected given circumstance tribunal considers delay lodging application indicates fear harm china escaping persecution finally tribunal concerned applicant evidence claimed religion vague evasive indicative person attending religious activity committed follower concerning xiang gong said think became member xiang gong december 2007 however tribunal asked practiced religion able say started repeat statement started however tribunal said wanted know practiced religion explain practiced finally referred xiang gong exercise tribunal asked describe said describe said word dragon wiggle tail jade phoenix tribunal said still understand exercise asked tell name exercise description said personal opinion morning exercise tribunal asked describe actual exercise said stand like practice yoga tribunal noted could say asked would considered part cult yoga exercise able explain religion considered cult say authority enough quota cult religion considered cult tribunal considered applicant evidence vague evasive unlikely concerning christianity claimed could recall started attend church 2 3 year ago tribunal concerned applicant gave evasive evidence new religion able refer concept example baptism although said baptised wanted old new testament story really remember story except one said needed time think story might tribunal asked tell religion said believe jesus get eternal life go good heaven guilt repent front jesus need good deed good men tribunal asked anything else said make donation african orphan tribunal asked anything else could tell religion although could say word finding difficult accept christian unable despite given several opportunity tribunal considers applicant evidence claimed new religion vague lacking detail tribunal concerned applicant unable provide real information difference claimed religion tribunal noted applicant claimed devoted xiang gong four year china instead chosen practice christianity australia tribunal asked applicant explain difference two religion response applicant said xiang gong chinese religion christianity come pakistan belief westerner really know tribunal put applicant country information indicated christianity come pakistan 6 asked wanted say anything laughed responded however interpreter said speaking clearly tribunal asked speak complete sentence understood tribunal repeated question saying difficult accept evidence thusfar genuinely involved either religion giving opportunity explain different religion response applicant said xiang gong put emphasis exercise christianity spiritual belief opinion tribunal noted actually changed religion would expect would able say religion response like said believe jesus appealing tribunal also note claim xiang gong put emphasis exercise inconsistent country information referred calling spiritual movement tribunal considers applicant evidence undermines claim committed religion converted reason set tribunal consider applicant credible witness matterswhile tribunal acknowledges applicant could nervous hearing event occurred time ago tribunal accept explain difficulty evidence applicant gave information religion tribunal considered knowledge inconsistent claimed devotion practice religion consider knowledge corroborative claim regard tribunal concern credibility summaryconsidered cumulatively concern tribunal hold applicant credibility discussed lead tribunal conclude applicant witness truth applicant fabricated account event claimed fear upon based protection claim finding applicant claimson basis adverse credibility finding tribunal accept applicant ever involved either xiang gong christianity accept accused involvement xiang gong detained tortured released upon payment fine lost job police record escaped australia due fear persecution tribunal find applicant remained australia work prepared make false claim support protection visa application tribunal find applicant working claimed china living parent working find upon return continue work live parent satisfied reason considering applicant face real chance serious harm real risk significant harm accept freedom face chance imputed involvement religion accept seek attend church involved religion accept undertaken activity australia one month study thereafter work consider reason applicant time australia draw adverse attention anyone tribunal satisfied evidence applicant suffered face real chance suffering reasonably foreseeable future serious harm anyone tribunal considered applicant claim individually cumulative basis regard finding applicant credible witness concerning past future harm feared well relevant country information claim accepted tribunal reject various claim made find well founded fear convention related persecution reason put forward behalf complementary protectionhaving concluded applicant meet refugee criterion in 36 2 tribunal considered alternative criterion in 36 2 aa see annexure provides summary relevant term tribunal accepted applicant young male china educated worked china studied one month australia thereafter worked reason discussed tribunal satisfied applicant truthful relation majority claim tribunal accept experienced past harm claimed fled china fear anyone ever shown adverse interest tribunal accept involved religion claimed reason involvement imputed tribunal considers return live parent work tribunal satisfied real risk face real risk adverse attention amounting significant harm anyone reason evidence reason discussed considered claim singularly cumulatively tribunal satisfied substantial ground believing necessary foreseeable consequence applicant removed australia receiving country namely china real risk suffer significant harm accordingly tribunal find applicant satisfy requirement ofs 36 2 aa act conclusionfor reason given tribunal satisfied applicant person respect australia protection obligation refugee convention therefore satisfy criterion set in 36 2 concluded applicant meet refugee criterion in 36 2 tribunal considered alternative criterion in 36 2 aa however satisfied applicant person respect australia protection obligation unders 36 2 aa suggestion applicant satisfiess 36 2 basis member family unit person satisfiess 36 2 aa hold protection visa accordingly applicant satisfy criterion in 36 2 decisionthe tribunal affirms decision grant applicant protection visa christine codymemberannexure relevant lawthe criterion protection visa set in 36of act schedule 2 themigration regulation 1994 regulation applicant visa must meet one alternative criterion 36 2 aa b c applicant either person respect australia protection obligation refugee criterion complementary protection ground member family unit person person hold protection visa refugee criterionsection 36 2 provides criterion protection visa applicant visa non citizen australia respect minister satisfied australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee together refugee convention convention australia party refugee convention generally speaking protection obligation respect people refugee defined article 1 convention article 1a 2 relevantly defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return section 91r 91s act qualify aspect article 1a 2 purpose application act regulation particular person four key element convention definition first applicant must outside country second applicant must fear persecution 91r 1 act persecution must involve serious harm applicant 91r 1 b systematic discriminatory conduct 91r 1 c example serious harm set 91r 2 act high court explained persecution may directed person individual member group persecution must official quality sense official officially tolerated uncontrollable authority country nationality however threat harm need product government policy may enough government failed unable protect applicant persecution persecution implies element motivation part persecute infliction harm people persecuted something perceived attributed persecutor third persecution applicant fear must one reason enumerated convention definition race religion nationality membership particular social group political opinion phrase reason serf identify motivation infliction persecution persecution feared need besolelyattributable convention reason however persecution multiple motivation satisfy relevant test unless convention reason reason constitute least essential significant motivation persecution feared 91r 1 act fourth applicant fear persecution convention reason must well founded fear add objective requirement requirement applicant must fact hold fear person well founded fear persecution convention genuine fear founded upon real chance persecuted convention stipulated reason real chance one remote insubstantial far fetched possibility person well founded fear persecution even though possibility persecution occurring well 50 per cent addition applicant must unable unwilling fear avail protection country country nationality stateless unable unwilling fear return country former habitual residence expression protection country second limb article 1a 2 concerned external diplomatic protection extended citizen abroad internal protection nevertheless relevant first limb definition particular whether fear well founded whether conduct giving rise fear persecution whether applicant person respect australia protection obligation assessed upon fact exist decision made requires consideration matter relation reasonably foreseeable future complementary protection criterionif person found meet refugee criterion 36 2 may nevertheless meet criterion grant protection visa non citizen australia respect minister satisfied australia protection obligation minister substantial ground believing necessary foreseeable consequence applicant removed australia receiving country real risk suffer significant harm 36 2 aa complementary protection criterion significant harm purpose exhaustively defined 36 2a 5 1 person suffer significant harm arbitrarily deprived life death penalty carried person person subjected torture cruel inhuman treatment punishment degrading treatment punishment cruel inhuman treatment punishment degrading treatment punishment torture defined 5 1 act certain circumstance taken real risk applicant suffer significant harm country arise would reasonable applicant relocate area country would real risk applicant suffer significant harm applicant could obtain authority country protection would real risk applicant suffer significant harm real risk one faced population country generally faced applicant personally 36 2b act section 499 ministerial directionin accordance ministerial direction 56 made 499 act tribunal required take account policy guideline prepared department immigration pam3 refugee humanitarian complementary protection guideline pam3 refugee humanitarian refugee law guideline country information assessment prepared department foreign affair trade expressly protection status determination purpose extent relevant decision consideration done 1 u department state 2013 international religious freedom report 2012 china includes tibet hong kong macau 20 mayhttp www state gov j drl rls irf religiousfreedom index htm dynamic_load_id 208226 year 2012 wrapper 2 dfat report 3 march 2015 3 dfat thematic report 4 put applicant according date detention june five day released detention found lost job date decided least date june 2011 5 hearing said date june 2011 appears error 6 christianity started 2000 year ago judea present day israel jesus christ faithful group disciple http www allaboutreligion org history christianity htm
Mairie & Malak [2013] FamCA 89 (7 February 2013).txt	mairie malak 2013 famca 89 7 february 2013 last updated 18 april 2013family court australiamairie malak 2013 famca 89family law child father prison 18 year sexual assault sentencing occurs application order filed father seek adjournment lawyer get instruction basis adjournment refused proper permit father start wished family law act 1975 cth applicant m mairierespondent mr malakfile number mlc2355of2010date delivered 7 february 2013place delivered melbourneplace heard melbournejudgment cronin jhearing date 7 february 2013representationthe applicant personcounsel respondent m savillesolicitor respondent cash stavroulakis lawyersorders 1 application case filed m malak 17 october 2010 struck 2 application case filed m 17 october 2012 struck 3 application case filed father 9 november 2012 struck 4 extant parenting order discharged 5 mother sole parental responsibility child e born may 2004 6 child live mother 7 order court father restrained injunction contacting child 8 father application day adjournment refused 9 application mother otherwise filed 16 august 2012 dismissed 10 pursuant tos 65da 2 ands 62b particular obligation order create particular consequence may follow person contravenes order detail assist party adjust comply order set fact sheet attached hereto particular included order notedthat publication judgment court pseudonymmairie malakhas approved chief justice pursuant tos 121 9 g thefamily law act 1975 cth family court australia melbournefile number mlc 2355 2010ms mairieapplicantandmr malakrespondentreasons judgmentbefore today variety application unfortunately deal sequentially time first application initiating application m mairie shall refer mother application filed 16 august 2012 searching file numerous volume contains 70 odd document never response filed mr malak shall refer father second application time m seems mother father day another application case filed m fourth application time father filed 9 november 2012 application variously listed late november 29 november 2012 precise reason matter request everybody consent mother adjourned today morning counsel appeared behalf father note court file notice address service filed application simply adjournment father application application simply instructor taken file legal aid would seem yet opportunity even speak father result lot material given today clear father prison told sentenced 18 year day ago concerned sexual assault child take much imagination understand sexual assault child serious purpose parenting dispute criminal law justice system 18 year long time presume treated extremely seriously court sentenced make observation even without benefit sentencing remark sentencing judge application father counsel seek adjourn concern order sought mother thought would effect taking father life child relationship large extent already happened 2009 brown j made order father contact child varied order 2011 order involved face face contact seems clear father new south wale long way child regard said sentence would seem unlikely existing order court whether suspended face face contact likely take place would seem circumstance father seek application fourth referred keeping relationship alive contact child electronic mean present card regard sentence delivered significant problem convince court adequate proper role model child mother made position clear resists contact application seek removed life completely second third application seek effectively form contact electronically grandmother aunt child october 2012 gave two applicant permission appear telephone 2012 hearing would seem address various document prepared provide proper residential address indeed even affidavit described address care post office box town b new south wale ironically enough address town b prison even sure father currently town b prison court wrote person correspondence came back unclaimed court attempted correspondence came back even intended father control proceeding seems either post office prison know m mairie mother given letter today asked provide also counsel father clearly indicates father assisting mother sister respect application sort contact child filed material since filed application october court endeavoured let know proceeding heard way structured document cooperative important also note grandmother describes almost 80 year age affidavit set wished face face contact child son released prison presumably know stage sentenced 18 year imprisonment would obviously make 98 year age ultimately opportunity gravamen application sister therefore effectively form electronic communication basis father significant change circumstance whole case predicated basis presumably relatively short term prison andthat also sought recuse counsel position argue matter today seems sensible course action strike application also application grandmother sister basis future serious application put proper material court based upon significant event father life recent imprisonment sentence basis would appear enormous waste court time otherwise propose refuse application adjournment said problem sorted father putting proper material court would face estoppel point leaf question mother application seek exclude father life child basis sentence seems logical order 2009 2011 least discharged ensure extant never carried mother also seek order father restrained contacting harassing child permitted within kilometre residence child school regard sentence would thought unlikely going position within kilometre residence school event contacting child seems logical step grant application contact harass child issue determined court word file proper application setting form contact want child future two significant part application first mother seek father sign necessary paper release share fund held supreme court seems unnecessary order regard fact mother position tell fund could released even respondent father signed document may control disposal fund supreme court treat right prisoner aware circumstance order could efficaciously made basis make order matter mother seek declaration respondent vexatious litigant court power unders 118of thefamily law act 1975 cth act make order precluding people bring vexatious application appropriate declaration somebody deemed vexatious litigant rather precluded bringing unnecessary application application waste time would inappropriate make order today without knowing whether father going bring proper application undoubtedly limited scope prison may well basis application make court might future considers 118of act basis material thus far appropriate make order stage propose therefore deal today mother application discharge order seek paragraph 1 2 application hear mother respect paragraph 3 relation question injunctive order contacting child recorded transcribedfurther reason various application application going deal specifically seek exclude father life child time proper application made way mother would seek think appropriate way deal bearing mind background discharging even varying previous parenting order mean making parenting order therefore provision ofpart viiof act must followed unusual case way conducted made much difficult try deal formal process alleviate problem trying deal inpart vii part viiof act provides child right involved life parent raft object principle set in 60bof act every one principle however underwritten fact child right exercised best interest largely bereft much evidence case fact hardly dispute section 60caof act provides court making parenting order intends must regard best interest child paramount consideration child quite satisfied confused uncertain father distinctly recall indication father want child know prison problem addressed regard fact long time court make order parenting nature obliged considers 60cc particular provision set court determines best interest child propose go matter seriatim purpose person reading reason presumed taken every one account fundamental problem physical contact father child go without saying one consideration in 60ccis parental capacity father cannot carry capacity without restriction even point view telephone contact email contact state new south wale permission able doubt prisoner crown right cannot unrestricted time child lost liberty one consideration in 60ccis attitude parenting parental responsibility hard imagine situation finding could made someone irresponsible parent plead guilty serious offence sexually assaulting young child receive sentence 18 year imprisonment hard imagine without even reading sentencing remark someone could argue responsible parent responsible parenting flow issue role modelling child possibly see father role model matter go clear every one issue in 60cchas problem point view father father application propose strike wanted child interviewed psychologist appointment independent child lawyer indication show really little understanding problem associated child child court system since 2009 young time stage allegation made court satisfied child need get life father going put proper application court setting proposes continue role father court consider basis material absence proper response application sought mother appropriate grant mother application best interest child granted question case need consider question parental responsibility section 61dastarts presumption parenting order made presumption rebutted best interest child parent responsibility mother father cannot communicate one another even could physically mother want nothing father regard heard background case probably really surprising circumstance presumption must rebutted find best interest child order discharged contact father child subject making proper application proper ground proper evidence basis discharge parenting order certify preceding twenty eight 28 paragraph true copy reason judgment honourable justice cronin delivered 7 february 2013associate date 20 february 2013
Amer v Consolidated Meat Group Pty Ltd [2002] QSC 345 (24 October 2002).txt	amer v consolidated meat group pty ltd 2002 qsc 345 24 october 2002 last updated 28 october 2002supreme court queenslandcitation amer v consolidated meat group pty ltd 2002 qsc345parties gaynor ann amer plaintiff vconsolidated meat group pty ltd defendant file s582 2001division trial divisiondelivered 24 october 2002delivered rockhamptonhearing date 5 6 august 2002judge dutney jorders judgment plaintiff defendant sum 87 791 13catchwords damage assessment damage whiteboards fell plaintiff 1998 plaintiff fell backside injured hand tried cushion fall pre existing degeneration hand thumb lower back condition asymptomatic condition would become symptomatic plaintiff mid late 50 spersonal injury liability quantum plaintiff slipped piece fat gristle 1999 whether system cleaning adequate back injury aggravated nerve pinched temporary aggravation injurygriffin v cole myer ltd 1992 2 qd r 478 citedcounsel mr r lynch plaintiffmr mcmeekin sc defendantsolicitors sciacca lawyer plaintiffswanwick murray roche defendant 1 gaynor amer worked lake creek meatworks rockhampton adult life began 1967 done variety job packing general labouring quality assurance officer m amer working latter position injured 1 june 1998 near trolley white board collapsed board fell m amer leg causing fall backside put hand cushion fall also suffered injury left hand thumb result 2 liability injury admitted 3 following 1998 injury m amer suffered sore lower back hand thumb following insignificant incident pushing box flushing toilet hand swelled experienced shooting pain arm m amer tested negative carpal tunnel syndrome injury affected m amer work quality assurance officer drill used take core sample meat caused pain hand trouble lifting box meat also trouble replacing box meat cryovac bag 4 9 december 1998 dr boland performed operation m amer left hand following operation m amer work compensation 3 month 7 8 week spent plaster m amer returned work suitable duty may 1999 full duty august 1999 return normal duty m amer given job leading hand lazy susan downturn business m amer lost leading hand position required normal process work lazy susan m amer say back hand continued trouble making difficult maintain employment took panadeine forte panadol consulted chiropractor 5 m amer suffered injury 30 november 1999 liability injury contested 6 30 november 1999 m amer carrying pile empty box lazy susan area another part boning room pile box obstructed view one m amer foot recall one slipped piece fat gristle boning room floor started fall backwards regain equilibrium m amer grabbed horse horse metal construction spike coming hold roll plastic wrapping meat 7 floor boning room bare concrete meat fat fall regularly two labourer employed continually remove debris contest party largely revolved around adequacy system cleaning boning room floor 8 consequence near fall m amer aggravated back injury pinched nerve neck m amer say coping work event worked two day 30 november 1999 incident worked since 9 currently m amer complains constant daily aching pain neck related headache dizziness complains limited head movement inter alia inhibits driving sleep disturbed consequence take sleeping tablet 10 m amer experience loss sensation strength dexterity left hand pain thumb area said constant 11 m amer say avoids activity fear injury weight increased self esteem lowered say longer mow go movie go fishing horse riding longer enjoys gardening currently m amer take 4 panadeine forte per day also take arapax control depression 12 medical evidence support conclusion m amer suffered aggravation pre existing degeneration hand thumb lower back incident 1998 degenerative condition largely asymptomatic incident later incident 1999 caused temporary aggravation conclusion supported drs gillett macfarlane accept m amer unsuited work meatworks although medical reason could light sedentary semi sedentary work involving heavy lifting twisting back neck confined space repetitive movement left hand wrist suggestion included factory work packer assembler messenger sale person shop assistant parking attendant despite residual earning capacity mr amer appears made little effort seek work worked briefly butchery obtained application employment capricorn resort complete 13 m amer 52 year age born 29 march 1950 48 injured 1998 without aggravation 1998 prognosis degenerative condition may become symptomatic mid late fifty although accept inevitability seems likely particularly noted medical record defendant meatworks reveal complaint m amer pain thumb filleting 12 may 1998 may well one incident heavier usual work suggestive likelihood condition eventually developing symptom evidence medical record suggesting mr amer hand progressively becoming problemsome 15 assessing quantum deal contest concerning system employed clean floor 16 mr drochmann boning room supervisor gave evidence system adopted meatworks two labourer employed patrol floor shovel broom pick spillage worked progressively line picking everything fell would cover whole floor every 5 10 minute apparently impossible prevent meat product falling floor labourer worked night shift ceased midnight cleaner would come clean floor high pressure hose system admitted m amer suggested however fat could come boot worker leaving shift fall shift actually finished night cleaner arrived 17 plaintiff must show omission act defendant contributed near fall 1999 word system cleaning employed defendant inadequate adequate system place incident would probability happened 1 18 persuaded plaintiff established breach required standard defendant relation second incident cleaning system prima facie proper one persuaded inappropriately implemented always possibility substance floor cleaning round labourer contract cleaner last shift frequency cleaning view much could reasonably expected follows defendant liable second incident 19 basis matter set consider second incident contributed little m amer present condition even occurred probability would cease work difficulty experiencing 20 outset indicated m amer spent working life lake creek meatworks however spent 3 season anglis meatworks melbourne 1970 1973 1 seigal meatworks melbourne also early seventy early 1980 m amer worked month biloela evidence relevance lake creek meatworks closed apparently permanently 28 july 2002 m amer say injured would left rockhampton looking work another meatworks convinced period mentioned m amer lived rockhampton since least 1965 daughter grand daughter live rockhampton property rockhampton balance probability find even first incident occurred m amer would probably remained rockhampton result meatworks closure would probably looking work 21 accept however m amer placed difficult position seeking alternative work would otherwise 22 light ass damage 1998 injury follows pain suffering 20 000 00past loss earnings 2 50 193 00interest 5 51486 23 4 year 10 297 25future economic loss 3 11 524 00lost superannuation 7 4547 34future superannuation 9 1037 16expenses paid workcover 8 600 39expenses paid workcover 4 2 500 00interest 5 668 15future medical expense 500 00fox v wood3 156 15subtotal 113 023 44less workcover refund 25 232 31total 87 791 13 23 found defendant liable second injury would allowed additional 7 500 00 pain suffering would allow additional pain difficulty driving activity consider m amer could continue meatworks event earlier injury figure affected 24 give judgement plaintiff defendant sum 87 791 13 1 griffin v cole myer ltd 1992 2 qd r 478 2 allowed amount 525 00 per week 38 2 week 9 12 98 17 3 99 3 12 99 30 6 00 547 per week le 50 residual work capacity meatworks closure 1 7 00 meatworks closed plus 50 per week 29 7 02 judgment weekly amount based upon gross earnings 1998 financial year le applicable tax 50 discount allows progressive return alternative employment 3 50 per week diminished capacity 8 year discounted 33 allow inter alia risk symptom would appeared age 60 4 agreed
McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828 (30 June 2006).txt	mcilwain v ramsey food packaging pty ltd 2006 fca 828 30 june 2006 mcilwain v ramsey food packaging pty ltd 2006 fca 828 30 june 2006 last updated 30 june 2006federal court australiamcilwain v ramsey food packaging pty ltd 2006 fca 828industrial law consideration conduct dismissal employee refusal employ person south grafton abattoir consideration part xa division 2 3 s 298k 1 prohibited purpose membership industrial association entitlement benefit order airc participation proceeding airc party giving evidence expression dissatisfaction working condition context industrial association seeking better condition consideration circumstance required satisfied statutory presumption prohibited purpose arises purpose 298v practice procedure consideration approach adopted dealing case answer submission whether respondent ought put election condition making submission consideration basis upon submission made relationship ground advanced moving party need election evidence consideration utility report expert extent report failed meet standard required theguidelines expert witness proceeding federal court australiaissued chief justice 19 march 2004 consideration extent report might characterised piece advocacy party evidence consideration principle governing reception tendency evidence generally purpose ofs 97of theevidence act1995
Cleland, Alison; Quince, Khylee --- "Double Jeopardy? Team Teaching in a Law School Elective" [2012] MqLawJl 1; (2012) 10 Maquarie Law Journal 1.txt	cleland alison quince khylee double jeopardy team teaching law school elective 2012 mqlawjl 1 2012 10 maquarie law journal 1double jeopardy team teaching law school electivealison cleland khylee quince author article taught researched together developing new elective course undergraduate llb program university auckland carried review team teaching literature traditional law school teaching developed course taught time initial motivator using team teaching provide comprehensive view subject possible author agreed wanted inquire whether team teaching could reduce intimidation surface learning traditional method caused also wanted test claimed benefit team teaching since little research related law inquiry collected qualitative quantitative data student response method showed engaged lecture material readily participated class discussion debate often found lecture atmosphere le intimidating traditional compulsory law school subject although student recognised different perspective author conclude yet enough evidence state student learning improved deepened directly team teaching introductionthe ability identify side argument adopt defend opposing position essential skill lawyer despite undergraduate law course make use obvious method modelling debate two lecturer discussing issue time designing new law elective course placed idea legal team heart course delivery planned explore topic presenting contrasting perspective student lecture designed course reviewed literature traditional team teaching method delivery noting drawback socratic method claimed benefit team teaching notable almost literature use team teaching undergraduate law subject decided conduct inquiry use team teaching course wanted know whether student would find method helpful learning article firstly set literature review helped u identify danger student learning posed traditional law teaching benefit claimed team teaching explains research methodology used conduct inquiry team teaching analyse data obtained conclusion considers significance inquiry result teaching also law teaching generally ii exploring appropriate teaching methodologieswe worked legal practice acutely aware potential impact sometimes positive often negative law client life area practice criminal law khylee aotearoa new zealand child law alison scotland surprise quickly moved discussion similarity difference two small jurisdiction specific consideration respective youth justice system effect young people involved new zealand scotland developed unique youth justice procedure regarded largely line international law standard wanted offer elective youth justice would allow student explore new zealand youth court family group conference system context international instrument comparative element passionate allowing student explore response legal system young people understand practice lawyer could important advocate young people youth justice elective available part 3 4 student proposed approved 2008 1 obvious neither u alone knowledge expertise required bring subject youth justice life student particular representation maori young people required maori critique aotearoa new zealand system khylee particular expertise area began explore idea operating lecture legal team one u could take responsibility leading discussion particular topic would add observation pose question model would classic legal team used present case court member team particularstrengths resulting argument stronger since draw aspect team knowledge expertise initial discussion teaching team arose desire fill perceived gap knowledge present student comprehensive picture subject possible however planned learning outcome content method assessment discovered frustration traditional teaching model used law school began discus moving away traditional model implementing team approach part discussion gathered relevant literature teaching method aliterature traditional teaching methodsgood teaching nothing making thing hard nothing frightening student 2 developed course reviewed research traditional law school teaching method socratic method signature pedagogy law school teaching common law jurisdiction since introduction harvard law school christopher langdell 1870s addition langdellian method modern teacher law also use range technique teaching including problem method traditional lecture textbook method problem method involves providing student written fact pattern apply legal rule principle discern correct answer lecture textbook approach passive student receiving instruction lecture supplemented reading case text clarify understanding 3 agreed literature suggested law student engagement learning could risk result three factor use socratic method demand professional curriculum failure accommodate individual learning style would seem rather driven research determining way student learning could enhanced learning style provided much law teaching fall back traditional method quick mean conveying vast amount information extent believe result tail wagging dog view externally imposed requirement satisfied certain compulsory subject cannot met way 1 socratic methodafter observing alison teaching 2008 colleague another faculty indicated quite traumatised class time alison using casebook method compulsory course teaching partly socratic socratic method traditional model used law school teaching common law jurisdiction case dissected understand law questioning answering student lecturer take place challenge assumption examine assertion alison peer observer indicated several student seemed anxious unable concentrate anticipated asked contribute recovered questioned experienced model law student version used widely compulsory subject taught reflected observer comment talked aspect existing law school teaching might stopping student learning agreed student fear likely significant inhibiting factor would fear subject law reputation inherently difficult fear would compounded use socratic even partly socratic interaction required immediate student response socratic method regarded characteristic form teaching learning shulman called signature pedagogy 4 law school 5 researcher found use method mean student far better chance success others personality type much better suited teaching used 6 woman 7 minority ethnic group placed particular disadvantage 8 feminist scholar claim hierarchical authoritarian approach socratic method counterproductive embarrassment student lack accounting relationship emotion relevant legal practice associated feminine ethic 9 claimed structure learning exchange core method also masculine contest like nature student seek discernible objective truth new zealand significant growing body research literature effective teaching learning practice maori student educational context known askaupapa maorieducational theory invariably criticises existing mainstream method teaching learning posit alternative culturally appropriate theory praxis education kaupapa maori educational theory challenge cartesian tradition learning embedded socratic method value free body knowledge obtained application reason logic 10 direct research effectiveness socratic method maori extrapolate kaupapa maori educational literature traditional teaching method law likely le effective maori approach similar body educational literature developed concurrently pasifika learner research argues distinct cultural value behaviour amongst pasifika community example acceptance teacher authority unilateral learning environment little student input make socratic method even le suitable maori 11 research shown physical emotional problem result intensely competitive environment law school 12 gerald hess argued law school experience remove student enthusiasm self confidence 13 net result traditional teaching make student le confident stressed likely take surface approach learning agreed saw compulsory class wanted avoid new course 14 socratic teaching law school us case dialogue method observed alison peer observer elicited strong negative reaction 15 áine hyland shane kilcommins argued case method undermine student learning various way 16 first method suggests inquiry law scientific endeavour result certainty content meaning law fact law highly contestable social political cultural dimension relevant meaning karl llewellyn argued progressive school le time left anything reading case chasing reference 17 second method concentrate largely decided appeal case legal practice concerned complex esoteric point reach appellate court kahn freund criticised method eloquently legal education based case law like medical education would plunge student morbid anatomy pathology without taught anatomy physiology healthy body 18 seemed case method could discouraging student questioning assumption underlying law seeing operation broader context hyland kilcommins conclude case method stifle creative critical emotion law student stop thinking analytically law outcome 19 extensive review use impact case method russell l weaver suggests avoid limitation method care taken explaining aim objective course student developing technique independent thought 20 2 demand professional curriculumthere one way qualify lawyer aoteaoroa new zealand successfully completing bachelor law llb degree council legal education specifies compulsory subject form core degree 21 professionally specified curriculum result degree heavy emphasis information transmission result student overwhelmed amount material time think carefully f marton r säljö identified type learning surface learning found student used grasp real meaning text 22 john biggs catherine tang note several factor encourage surface learning including anxiety trying cover much 23 quote howard gardner determined cover lot thing guaranteeing kid understand time enough go thing depth 24 seemed u combination heavy curriculum use socratic method would produce surface learner suddenly revisited constant complaint law lecturer student care answer see much templating 25 extreme pressure due competition amount material teaching method used unintentionally encouraging want also noted test examination used instrument assessment compulsory subject thought back student day agreed instrument torture might equally valid description emphasis learning reproducing large amount information judged essential council legal education law society scotland looking back regretted limited chance think law critically analyse grasp principle concept deep meaningful way wanted new course provide student opportunity 3 assumption learning stylesentry part ii law degree highly competitive demand place keep class number high 26 research indicates use large class early year law degree assumes student need generally one style teaching suit student 27 number compulsory course stream typically around 100 elective number around 60 80 assumption main thing learned law school think like lawyer close textual analysis case socratic dialogue develop thinking skill assumption take account student individual learning style robin boyle rita dunn tested hypothesis believed widespread among law lecturer student would similar learning style pursuing career law 28 found diverse learning style traditional lecture would reach around 30 student 29 john sonsteng colleague similar result 30 found law student learned verbally aurally physically visually 31 agreed appeared little consideration given different way student might learn khylee also raised concern different learning need maori pacific island student pointed programme designed support student real attempt introduce range teaching style accommodate need lecture review identified result traditional law school teaching wanted change avoid fear anxiety arising much content use socratic method alienation student use limited teaching technique took account difference learning style encouragement surface learning emphasis content use particular form assessment breview team teaching literatureour initial decision teach together informed theory benefit student learning teaching practice might derive class time developed course thought much teaching method used might affect student experience realised wanted conduct inquiry student response team teaching methodology therefore reviewed team teaching literature place practice context identify appropriate research question 1 definition team teachingthe first issue literature question definition rebecca anderson bruce w speck note one key difference definition whether address planning implementation course actual teaching practice used classroom 32 definition emphasise planning course joint responsibility marking teacher address class alone 33 model emphasise two teacher class time 34 karin goetz analysis various form team teaching identifies range different model 35 dick carpenter colleague found division review 36 adopted lee c deighton 1971 definition two teacher regularly purposefully share responsibility planning presentation evaluation lesson prepared group student 37 definition extends team approach beyond simply class together felt definition appropriate inquiry making joint decision learning outcome content assessment teaching method well working student together class 2 claimed benefit team teachingthe literature potential benefit team teaching drew experience variety setting many different undergraduate law programme study dealing language teaching 38 adult education 39 nursing 40 none seemed directly relevant legal pedagogy wondered far could extend perceived benefit study work however several clear theme emerged diverse study frequently claimed benefit one set u team teaching path first place bringing different perspective student student would hear different point view would broaden intellectual range inquiry 41 interestingly benefit also flip side study recognised danger student uncomfortable different opinion conflict teacher becoming anxious right view might 42 fictional dialogue advocate team teaching ingrid shafer opponent model assert team teaching confuse frustrate student proponent counter saying socratic admission ignorance start learning 43 engaging way presenting argument particularly relevant considering team teaching law school given reference illustration socratic method another claimed key benefit student increased likelihood student teacher interaction encouragement student participation class educational theory state engaging student learning create condition transformative experience 44 fauneil j rinn sybil b weir refer intellectual excitement direct benefit two teacher class together 45 enthusiastic prospect using team teaching practice model intellectual debate encourage student participate allow develop argument perspective mike wenger martin j hornyak found outcome emerging team teaching interaction student became complex 46 literature also discussed benefit teacher improvement teaching practice francis j buckley referred clarification class goal improved teacher morale creativity 47 caplow fullerton found team teaching improved preparation performance noted one benefit team teaching law legal practice often collaborative able model practice student 48 benefit teacher may opportunity engage critically familiar material different perspective 49 3 practice support team teaching benefitscarpenter colleague point much literature team teaching overwhelmingly descriptive qualitative nature 50 note r schustereit 1980 review empirical research team teaching showed result inconclusive 51 work found measure engagement learning improve following team teaching 52 felt important bear mind embarked team teaching particularly much literature highlighted difficulty student teacher could arise practice danger student confusion already mentioned danger referred student anxiety assessment would marked 53 unsettling effect student adjusting different teaching presentation style 54 student suspicion material coming fellow student discussion rather lecturer 55 literature contained description practice could minimise identified danger tried build course structure teaching plan george p davis wiley describe drew agreed marking criterion independently applied paper 56 professor anderson landy recommend team teacher explicit mutually agreed standard student clear expected 57 important refer necessary explain different style member team may use caplow fullerton discussed different presentation style student commented class 58 one benefit team teaching increase student participation logically class time involve listening view student rather teacher barabara j millis philip g cottell jr note student suspicious group discussion teacher say important student hear authority figure 59 millis cottell refer extensive research supporting use cooperative active learning strategy advise teacher explain student exactly going think activity benefit student iii inquiry team teachingan honest assessment would show u lawschools almost use teamwork 60 team teaching law school least undergraduate class appears rare may various reason including economic pressure demand staff time perception concept team one important learning law literature team teaching contains little analysis possible benefit team teaching law school hoped might able add something understanding model could benefit law student law teacher project felt risky however refer double jeopardy title one risk identified start project inadequacy teacher exposed although literature always explicitly state whether researcher previously taught together could deduced easily surrounding information study 61 seems reasonable assume teacher may decide work together level trust make comfortable close peer observation never taught carried research together like approach style work well together second risk student resistance tried new teaching assessment format literature set range difficulty might arise use team teaching enterprise positive learning experience student began inquiry felt professional credibility reputation could jeopardy although believed risk well worth taking aresearch methodologywe offered elective course first time 2009 open student part 3 4 degree elective ran 2009 2011 2012 number student enrolled year 73 79 83 respectively wanted collect three year worth team teaching data try reduce impact teething trouble inquiry review literature given u project aim objective aim explore benefit drawback student learning team teaching law school elective objective explore student expectation experience team teaching ii identify student response team teaching method particularly debate discussion iii analyse effect team teaching student learning first objective included place team teaching context faculty teaching law teaching generally given natural fit team style presentation adversarial legal debate wanted know whether student might experienced previously might expectation method respect second objective particularly interested whether student response method would change time anxiety identified literature might dissipate course progressed planned gather student data midway course end third objective problematic effect method learning may emerge long time course finished learning may influenced many factor within lecturer control knew conclusion improved learning otherwise would limited snapshot portion student experience felt would ideal collect qualitative quantitative data wanted use student focus group course end group discussion seen appropriate way allow student explore reaction teaching method change view occurred course progressed hoped format would also encourage reflection effect teaching might learning would also use quantitative questionnaire student familiar evaluation questionnaire end course thought would ensure fairly high participation rate 1 satisfying ethical concern buffering clear wanted wanted however gain ethic approval research make several modification data collection method reason modification best described buffering teacher would marking student work giving grade essential integrity research freedom choice student completely confident decision whether participate needed know decision would bearing performance course would assessed data collection anonymous meant knowledge student participated focus group also meant access digital voice recording group since might able identify individual student extremely lucky dr ian brailsford head university academic practice group 62 agreed research assistant conducted recorded focus group provided u transcription discussion 63 anonymity issue respect questionnaire however could use usual practice collecting class student might felt inhibited expressing criticism teaching final assessment yet marked arranged questionnaire handed administrative staff left final class student place completed questionnaire box faculty office student advised would access completed questionnaire final mark course released 64 2 responding student apathywe concerned student resistance new teaching method eclipsed middle first semester 2009 pressing concern would manage collect data ensure student feel pressure u participate research asked dr brailsford address first class absence explained trying said would touch focus group week designated date group volunteer several reminder dr brailsford eventually produced student average participation rate three year eight half per cent disappointing 65 arrangement made dr brailsford tried increasing participation various way change appeared affect number offer pizza even increase buy greatly end 2009 produced disappointment three questionnaire returned class 73 student concluded use drop box faculty office could problem seem prudent rely student remembering deliver questionnaire particularly class despite ethic statement would use reception box 2011 2012 asked faculty staff collect questionnaire last class retain u assessment complete result 19 per cent return rate bresearch findingsat end inquiry quantitative data 44 questionnaire qualitative data total 20 student taken part 4 focus group questionnaire 6 page contained 33 question five topic 66 one open ended comment question pleased note material focus group transcript detailed student explored possible effect learning team teaching method analysed extent material met three research objective grouped finding three heading student experience expectation team teaching ii student response team teaching iii effect team teaching student learning 1 student experience expectation team teachingstudent response overwhelmingly indicated previously experienced team teaching defined deighton two lecturer interacting time four student took part focus group completed questionnaire indicated previous experience none law subject 67 clear student experience many described block teaching compulsory subject law degree multiple lecturer never lecture sort thing like one part leave another one come methodology familiar student influenced expectation team teaching might like thought might bit traditional like law paper kind tag team class time many student expectation positive negative teaching method many expectation like oh yeah could different often said excited intrigued see course would like thought might interesting see balance two different outlook topic student asked identify initial concern team teaching eight six mentioned lack clarity confusion respect material contrasting view would given 68 concern noted questionnaire one student added concern arisen dealt 2 student response team teachingto gauge student response team teaching focus group questionnaire asked range question three question dealing danger literature highlighted student asked clear charge class thought lecturer equal authority teaching methodology clearly explained knew exactly assessment would marked every student answered question yes several focus group saying definitely one saying incredibly clear really went delighted planning avoided potential difficulty even appear laboured explanation time student specifically asked comment use small group discussion whole class debate discussion first year booked break room small group student anxious losing lecture time moved room n beginning breaking group seemed lot time know mean think thought came back probably quite good felt like waste lot time mean think could different way tried turn neighbour talk something wanting get discussion actual break away group think effective several student approached u asked stop using break room class representative explained want hear guy somewhat dispiriting changed practice asked student form small discussion group lecture research data suggests may hasty giving approach one student said broke smaller group much comfortable like know people group fine comfortable le formal kind atmosphere able exchange everyone kind feel like equal another commented good group discussion really good got develop idea get know people take reading co sometimes read something go understand talk go oh yeah get response small group mixed student overwhelmingly enthusiastic class debate discussion two linked theme emerged first format made class le daunting yeah le intimidating especially sort core paper like land equity huge lecture theatre never want raise hand lecture minority actually talk make feel really dumb like know enough subject culture lecture structured actually felt like even participate like everyone else dumber yeah really good second format encouraged participation like contribute class generally felt like sort given mandate already interruptive flow structured way seem like interrupting lecturer asked question made statement others said definitely involved like asked couple question class normally course lot interactive think team teaching made feel le formal class one person focus lecturer interacting encouraging everyone else interact lot le know authoritarian like normal law class find like go sit family law whatever kind people say thing time youth justice way teach feel lot relaxed le formal think encourages lot people speak people hearing time student also appreciated opportunity hear different perspective topic discussed guess coming different background give different perspective obviously scottish versus new zealand different perspective student specifically mentioned based solely ethnicity jurisdiction good raised different point well also like lot people coming different like ethnic background quite good see point view khylee alison also view obviously khylee maori background alison scottish uk kind view yeah quite good alison definitely giving sort scottish european perspective speciality khylee probably complement quite well really khylee kiwi girl really full kiwi perspective approach surprising student identified perspective easily different accent discussion practice different jurisdiction would reinforced throughout disappointed reference different theoretical perspective tried present student specifically asked whether thought team teaching format would work appropriate law school subject majority student answered question clear approach would work compulsory paper 69 several said course content statute based use approach contract company tax law mentioned particularly problematic literature noted student could anxious presented differing view student seemed comfortable fact several questionnaire comment suggested student would liked u argue interestingly linked positive reaction perception got well together one student said question whether team teaching work others know khylee alison close socialise outside uni quite good friend would say whether would work maybe team lecturer friend outside maybe would power struggle something 3 effect team teaching student learningstudents asked whether teaching method helped learning way also asked whether format helped challenge view view reading pleased student took time answer question detail student identified several effect teaching holding interest providing coherence subject enabling challenge academic view providing different perspective clearest effect team teaching held student interest better single lecturer would ask u lot question lecture good talk thing find much better way learning lectured two hour really good student comment suggested effect entertain necessarily suggest deeper learning personally really like like really like style teaching able hold interest lot longer one lecturer co sometimes one lecturer hard listen seem work really well together able bounce one another student equated personality way worked together level interest know mean like like two teacher want room guy actually wanted learn learn made really enjoyable made understandable yeah really good different practice experience often commented positively think one thing really help learning process people thing people really appreciate anecdote story especially people practised two lecturer twice wealth experience anecdote think quite valuable make paper enjoyable student often contrasted teaching block teaching compulsory subject felt team approach gave consistency coherence way subject taught much prefer way teaching rather people coming stint leaving lot reason harder try see link section people another said like different lecturer thing make sometimes hard got try merge different concept like two lecturer contract would different think working like lecturer room time know going work better people coming like two three week kind thing result suggested method least partially successful enabling student challenge academic view heard u encountered reading occasionally disagree easy feel comfortable holding conflicting view comment questionnaire reinforce analysis particularly aided two lecturer give view interesting see agree encouraging comment presentation one view encouraged work formulating rather absorbing taught noted discussion response team teaching student identified useful different perspective presented find quite good two different kind opinion happening class help u help sort look thing different angle approach issue yeah find quite helpful hm plus make really clear agree point blah blah blah comment think really good get better discussion going get perspective going one think good different view show area unclear controversial suggest method allowed exploration different viewpoint result inquiry suggested team teaching approach engaged student effectively longer helped identify challenge different perspective indicate deep learning decided use team teaching approach partly persuaded traditional teaching approach law school encouraged surface learning marton säljö research different outcome learning described student approach study surface learning deep learning 70 contrast surface learning student tried rote learn material reproduce later deep learning involved student search meaning order understand material marton säljö showed deep learning associated student work qualitatively better work produced surface learning 71 introduced new elective new teaching approach simultaneously therefore control group student experienced youth justice taught traditional way meant could compare work produced approach instead two potential source data deep learning examined transcript indication student constructing meaning reading hearing analysed questionnaire answer student thought approach affected learning student comment focus group suggest beginning construct understanding material approaching issue different angle got thinking understand everything come perspective background student seemed approaching material questioning analytical way result way presented issue student completed questionnaire section team teaching affected learning none said approach negative effect learning student simply stated better helped without explanation however several indication deep learning could occurring made think issue class discussion good showing way looking thing found particularly encouraging student beginning think learned deep learning involve student monitoring developing understanding 72 deliberately held focus group semester end course explore whether student view team teaching changed time change view team teaching since student previously experienced approach however student referred way learning raised different point well also like lot people coming different like ethnic background quite good see point view lot say normally even enter head took note class lot information shared yeah always kind two view something several positive theme emerged student response concluded indication deep learning beginning take place student however one fascinating exchange focus group reproduced full reminded u matter much effort put creating condition deep learning may occur student choose use opportunity researcherso negative impact sort mode team teaching learning course participant 1it like kind felt like oh gosh going go debate end seemed bit endless limitless researcherokayparticipant 3it might depend approach class though think people approach really wanting understand issue youth justice really helpful engaging think probably approached want 10 point probably approach university get degree education participant 1which necessarily way frustrating kind feel like right answer put exam participant 3this course probably flagged one right answer long established case law massive tome written think respect actually quite refreshing could frustrating participant 1for 10 point participant 3for mark yeah ironically although student asked identify negative impact team teaching response suggested positive effect student learning reference endless limitless pleased u sounded though really managed open topic present complexity loved suggestion course flagged one provide right answer considering inclusion following course book warning course requires think enrolment may severely sharpen intellect iv conclusion future considerationsour initial decision team teach arose desire present student comprehensive view subject could result inquiry suggest succeeded presenting student different perspective encouraging least explore others assumption view material challenge fact always two lecturer class demonstrably different background experience interacting student together reinforced broader contextual approach hoped student would adopt also say confidence use model team teaching increase student engagement lecture time two teacher hold student attention better one longer participation class discussion debate high level compared student experience course indicated student engaged happening class might argued increase participation could led higher learning outcome synthesis evaluation seen b bloom taxonomy 73 would need inquiry confirm probably involving analysis completed student assessment inquiry showed possible overcome difficulty sometimes arise team teaching identified difficulty tackled two way class structure detailed explanation given student class time fact student felt course presented coherently block taught course commented coherence helped learn confirmed u managed avoid danger confusion turned dual input advantage student one benefit emerge inquiry creation le intimidating lecture environment appeared given student confidence challenge others opinion issue discussion taking different perspective presented student might hope deep learning began occur evidence would sought looking student written work evidence state categorically student learning improved use team teaching say engagement lecture time increased created environment high quality learning might occurred however one measure deep learning confidence ability analyse synthesise student negative reaction small group work must considered see increase student appreciation discussing material peer would produce valuable material improve learning perhaps necessary confidence small group discussion need develop time may given easily student request stop using small group perhaps persisted group evidence value would changed student attitude towards future intend reinstate small group work spend time explaining student think work beneficial also intend disagree class challenging inviting student defend attack position encouraged student specifically expressed disappointment engaged argument developed comfortable team teaching style le anxious confusing student exposing inadequacy three year inquiry concern risk faced dissipated confident committed continuing team teaching course one issue emerged inquiry student talked experience part 2 compulsory subject confirmed research message traditional teaching law described intimidated noted confusion different lecturer presented different part course explained class different compulsory subject left u doubt believed lecturer subject want question challenge think slightly bewildered khylee teach criminal law alison contract law except fact lecture class approach subject youth justice explain contestability arguing alternative policy context part 2 student take board wonder answer might student cannot disentangle teaching methodology used content compulsory course student appear fixed rather pessimistic view expected learn compulsories view may stop appreciating different teaching method help learn ever decide introduce new method part 2 subject certainly challenging senior lecturer faculty law university auckland new zealand 1 first elective dedicated exclusively issue youth justice taught new zealand faculty law part llb programme excellent support principal youth court judge youth court judge addressed student 2 paul ramsden learning teach higher education routledge 1992 98 3 see cynthia g hawkins leon socratic method problem method dichotomy debate teaching method continues 1998 brigham young university education law journal1 4 4 lee shulman signature pedagogy profession 2005 134 3 dǽdalus52 5 socratic method pure form used predominantly law school united state america limited form used common law jurisdiction united kingdom australia new zealand 6 vernellia r randall myers briggs type indicator first year law student performance 1995 26cumberland law review63 vernellia randall discus people colour particular khylee run maori support programme noted research effect socratic method maori pacific island student make significant minority student body university auckland faculty law 7 jennifer l rosato socratic method woman law student humanize feminize 1997 8 7south california review law woman studies37 jennifer rosato supportive socratic method advocate ethic care classroom limit psychological damage student especially female 8 elizabeth mertz et al difference difference make challenge legal education 1998 48journal legal education1 work carried empirical study student participant 25 law school usa 9 see eg susan h williams legal education feminist epistemology socratic method 1993 45stanford law review1571 10 see eg r bishop et al te kotahitanga phase 3 whanaungatanga establishing culturally responsive pedagogy relation mainstream secondary school classroom ministry education 2007 k hawk et al importance teacher student relationship maori pasifika student 2002 3set research information teachers44 11 common thread kaupapa maori pasifika educational research include promotion teaching approach holistic affirming cultural identity well positive influence non lecture based teaching learning see eg clark cross cultural issue student south pacific 2001 57australian mathematics teacher http www freepatentsonline com article australian mathematics teacher 206688328 html dr airini et al success improving maori pasifika student success degree level study auckland uniservices limited 2009 12 see eg barbara glesner fear loathing law school 1990 1991 23connecticut law review627 13 gerald f hess heart head creating effective teaching learning environment law school 2002 52journal legal education75 14 reader may well ask tackle compulsory subject difficulty presented heavily information based curriculum subject economic necessity one lecturer take one stream year around 330 student presented enormous difficulty short term decided use evaluate team teaching elective discussing possible use compulsory subject 15 introduced christopher columbus langdell dean harvard law school 1855 langdellian case method based premise written court judgment empirical data used construct law since legal reasoning deductive legal principle discovered deduced reading analysing case 16 áine hyland shane kilcommins signature pedagogy legal education university epistemological pedagogical concern langdellian case method 2009 14 1 teaching higher education29 17 karl n llewellyn wrong called legal education 1935 35 5 columbia law review651 663 18 kahn freund reflection legal education 1966 29 2 modern law review121 127 19 hyland kilcommins n 16 38 20 russell l weaver langdell legacy living case method 1991 36villanova law review517 21 discussion core subject see chris gallavin richard scragg value llb comparative perspective new zealand england wale 2006 4 2 journal commonwealth law legal education123 22 f marton r säljö qualitative difference learning ii outcome process 1976 46british journal educational psychology115 23 john biggs catherine tangteaching quality learning university society research higher education 3rded 2007 39 41 24 howard gardener educating understanding 1993 julythe american school board journal20 24 24 quoted john biggs catherine tang teaching quality learning university society research higher education 3rded 2007 40 25 common compulsory subject student pas template outline covered answer test examination question one year next 26 class around 800 student part 1 llb degree auckland around 330 admitted part 2 27 alice k dueker diversity learning imagining pedagogy difference 1991 1992 19new york university review law social change101 research concern student law school usa key difference student law school new zealand australia uk post graduate student rather school leaver might suggested although suggestion would require testing difficulty experienced student different would pronounced younger le experienced student 28 robin boyle rita dunn teaching law student individual learning style 1998 62albany law review213 29 ibid 227 30 john sonsteng et al learning preparing law student practice law legal practicum 1995 21william mitchell law review111 31 ibid 137 32 rebecca anderson bruce w speck oh difference team make team teaching make difference 1998 14 7 teaching teacher education671 672 33 see eg rex ennis team teaching adult basic education 1986 26 3 australian journal adult education4 34 see eg e b gurman effect prior test exposure performance two instructional setting 1989 123 3 journal psychology275 275 author defines team teaching approach two person assigned student one time instructional purpose 35 karin goetz perspective team teaching 2000 http www ucalgary ca egallery goetz html 36 dick carpenter et al testing efficacy team teaching 2007 10 1 learning environment research53 37 lee c deighton encylopedia education 1971 89 quoted ibid 54 5 38 see eg peter boyd bowman et al comparative study teaching spanish team teaching supervised independent study 1973 57 4 modern language journal199 magnan teaming teaching modifying class size experiment first year french 1987 60 4 french review454 39 tom stehlik reflection team teaching adult education opportunity professional development 1995 35 2 australian journal adult community education101 40 e garner c thillen school nursing ready implement interdisciplinary team teaching 1977 16 7 journal nursing education27 41 ibid 28 42 discussed garner thillen n 40 anderson speck n 28 43 ingrid shafer team teaching education future 2000 http www usao edu facshaferi teamteaching htm 44 lee harvey peter knight transforming higher education society research higher education open university press 1996 9 10 author state student encouraged think knowledge process engaged approach encourages critical ability treat student intellectual performer rather compliant audience 45 fauneil j rinn sybil b weir yea team 1984 32 1 improving college university teaching5 9 46 mike wenger martin j hornyak team teaching higher level learning framework professional collaboration 1999 23 3 journal management education311 323 4 47 francis j buckley team teaching sage publication 2000 author referring specifically secondary school teaching 48 caplow fullerton co teaching international criminal law new strategy meet challenge new course 2005 2006 brooklyn journal international law103 49 charlotte wood researching developing interdisciplinary teaching towards conceptual framework classroom communication 2007 54higher education853 charlotte wood specifically discussing teaching learning cross subject boundary comment appear equally applicable use different perspective within discipline 50 carpenter et al n 36 55 51 r schustereit team teaching academic achievement 1980 28 2 improving college university teaching85 52 carpenter et al n 36 60 author found graduate introductory research statistic course higher level achievement overall team taught opposed taught sole teacher statistically significant increase comfort research statistic factor likely promote learning 53 melissa c leavitt team teaching benefit challenge 2006 16 1 speaking teaching center teaching learningstanford university newsletter1 3 http ctl stanford edu speaking teaching newsletter html 54 henry c morlock et al rotational format team teaching introductory psychology 1988 15 3 teaching psychology144 55 helm et al planning implementing shared teaching mba team teaching case study 2005 81 1 journal education business29 author discus student initial negative reaction format traditional lecture mba student used large formal class law student 56 george p davis wiley team teaching graduate course clinical research study 2000 48 2 college teacher75 57 professor anderson landy approach discussed leavitt n 53 3 58 caplow fullerton n 48 notable feedback author student said beginning team taught course knew teacher style teacher seemed since taught individually one law teacher interested allowed u reflect student might perceive teaching style since many student enrolled elective taught one u previously 59 barbara j millis philip g cottell jr cooperative learning higher education faculty 1998 american council education 27 60 beverly moran trapped paradox speculation female law professor find hard fit law school culture 2002 11southern california review law woman studies283 294 beverly moran specifically discussing team teaching contrasting co operative working many woman colleague engage individualistic authoritarian nature teaching often used law school argues suit male colleague particular 61 researcher often written previous paper together worked field inquiry several year see eg judith winn trinka messenheimer young team teaching university level 1995 18 4 teacher education special education223 author involved writing project together undertaking team teaching mainstreaming child special educational need 62 dr ian brailsford advising faculty law teaching learning matter several year immensely grateful assistance wise advice inquiry 63 confidentiality agreement transcription service dr brailsford placed recording secure drop box transcription sent identifying student information student calling name removed dr brailsford sent fully anonymised transcript u 64 advice given research participant information sheet 65 focus group participant number 7 73 2009 10 79 2010 3 83 2012 66 topic previous experience team teaching initial attitude team teaching response teaching method response assessment method view quality learning 67 four student mentioned different setting tertiary foundation certificate accounting course commerce course working high school teacher 68 two concern contradictory expectation assessment person go outside class question 69 significant minority completing questionnaire stated sure know whether course team teaching would appropriate 70 f marton r säljö approach learning f marton hounsell n entwistle ed experience learning university edinburgh centre teaching learning assessment 3rdinternet ed 2005 ch 3 71 detailed discussion marton säljö research deep surface learning see k trigwell prosser improving quality student learning influence teaching context student approach learning learning outcome 1991 22higher education251 72 n entwistle entwistle revision experience understanding f marton hounsell n entwistle ed experience learning university edinburgh centre teaching learning assessment 3rdinternet ed 2005 ch 9 73 b bloom et al taxonomy educational objective cognitive domain 1956 mckay new york learning objective original version knowledge comprehension application analysis synthesis evaluation revised version taxonomy available http www odu edu educ roverbau bloom blooms_taxonomy htm revised version intellectual behaviour remembering understanding applying analysing evaluating creating
Heaps v Longman [2000] NSWSC 542 (19 June 2000).txt	heap v longman 2000 nswsc 542 19 june 2000 last updated 16 october 2000new south wale supreme courtcitation heap v longman 2000 nswsc 542current jurisdiction equity divisionfile number 2690 1999hearing date 29 05 2000judgment date 19 06 2000parties barry wilson heap anor v addison wesley longman australia pty ltdjudgment master macreadylower court jurisdiction applicablelower court file number applicablelower court judicial officer applicablecounsel w haffenden plaintiff benson defendantsolicitors edington alfonso plaintiffstephen blank associate defendantcatchwords landlord tenant order cost proceeding consideration basis assessment whether party party indemnity basis consideration clause lease dealing cost held entitled cost party party basis mortgage cost matter act cited decision paragraph 24judgment 1 supreme courtof new south walesequity divisionmaster macreadymonday 19 june 20002690 99 barry wilson heap anor v addison wesley longman australia ltdjudgment1master hearing notice motion filed 22 may 2000 plaintiff seek certain order consequent upon decision honour mr justice austin separate question determined part 31 2 november 1999 notice motion seek order damage interest cost damage agreed party sum 21 444 24 interest agreed sum 5 737 99 remaining matter concern third claim notice motion defendant pay plaintiff cost indemnity basis alternatively basis court think fit 2 actual order cost made honour ordered defendant pay plaintiff cost determination separate question party agreed honour determined basis upon cost would paid appropriate matter determined note result answer separate question agreement party amount damage interest utility proceeding continuing 3 principal proceeding concerned construction rent review clause procedure resolve disagreement valuer appointed determine rent due lease appointment umpire required make decision within certain time failed led question separately determined honour 4 difference party matter argued arises plaintiff submits appropriate cost indemnity basis defendant submits party party basis basis claim based upon provision lease particular clause 13 5 provides follows lessee pay stamp duty including penalty fine penalty fine due default lessor lessor reasonable legal cost charge expense incidental preparation completion stamping registration lease certified copy thereof required lessor consent required hereunder subletting surrender termination lease otherwise effluxion time case default lessee observing performing covenant lease contained implied lessee shall pay lessor legal cost charge expense lessor shall become liable lessor shall suffer incur consequence connection default 5 defendant placed reliance case ofre adelphi hotel brighton ltd 1953 2 er 498 case concerned bank issuing writ enforce security question arose basis upon order cost made honour mr justice vaisey held mortgagee entitled mortgagor mortgage property full cost expression meant ordinary party party cost cost solicitor client honour excluded case special bargain term relevant clause mortgage considered case whether relevant mortgage effect basis cost would paid honour conclusion followed williams j injamieson v gosigil pty ltd1983 2 qd r 117 honour mr justice williams also referred decision street j inre solicitor bill cost shanahan anor 1941 58 wn 132 mr justice street case referred general rule cost recoverable mortgagee properly payable party party taxation 6 additionadelphi casehas followed honour mr justice hodgson inagc advance limited v west agc advance v cranston or 1986 5 nswlr 301 honour case dealing rule existed part 52 time present time provision part 52a came force 1994 apply relevance rule provide two base taxation namely party party indemnity 7 honour mr justice hodgson judgment useful deal different base assessment cost rule mentioned cost party party basis normally cost necessary proper connection proceeding common fund basis generous basis extended reasonable amount respect cost reasonably incurred pointed difference solicitor client solicitor client basis cost may allowed latter even though unreasonable amount even though may unreasonably incurred either case happened approval client 8 party assumed principle derived case also apply case lease plainly correct effect upon court rule contract party plainly unambiguously expressed considered seeanz banking group nz limited v gibson 1986 1 nzlr 556 9 part 52a rule 32 cost payable party party basis unless rule order provide payable indemnity basis party party basis defined basis cost assessment provided part 11 division 6 thelegal profession act1987 section 208f 208g act refer factor cost assessor must consider 10part 52arule 37provides follows 37 proceeding cost payable person rule order court indemnity basis person party proceeding capacity trustee legal representative deceased estate fiduciary cost payable property held controlled person capacity cost incurred person shall allowed except extent appears incurred breach person duty capacity b otherwise cost incurred person shall allowed except extent appears unreasonable amount unreasonably incurred 11 second provision applies instant case would seem somewhat closer cost common fund basis old rule event seems indemnity basis likely allow recovery higher sum party party basis one start basis cost incurred allowed 12 fundamental question present case whether clause 13 5 set sufficient displace general principle referred case quoted plaintiff relied upon number factor evident clause 13 5 broadly three different subject matter second included lessor reasonable legal cost whereas third referred legal cost charge expense 13 theagccase honour mr justice hodgson displace general rule dealt clause 24a purported extend recovery cost charge expense payment may incurred made mortgagee however dealing clause 11 stated legal cost shall assessed solicitor client basis without necessity taxation come view allowed assessment essentially common fund basis 14 ingomba holding uk ltd or v minories finance ltd or 1993 ch 171the usual rule displaced fact definition cost included cost charge expense howsoever incurred bank receiver relation mortgage full indemnity basis 15 reference appear course clause consideration 16 clause honour mr justice vaisey concerned inadelphi casewas cost charge expense incurred paid relation negotiation preparation completion realisation enforcement security 17 honour refused construe word giving measure indemnity change basis recovery party party basis 18 clause honour mr justice williams deal injamieson casewas effect iii cost charge expense grantee may time time incur sustain put exercise enforcement attempted exercise enforcement power right remedy grantee hereunder reason default payment money hereby secured performance observance obligation part grantor performed observed herein contained implied otherwise behalf account grantor respect premise security incidental thereto vi also demand cost expense grantee incidental preparation execution stamping registration security renewal registration thereof 19 honour mr justice williams thought provision went considered vaisey j wide considered street j circumstance held clause amount agreement party mortgagee entitled recover cost expense taxed solicitor client basis 20 important look nature clause referred inre shanahan anorbecause one express definition cost including either solicitor client basis indemnity basis clause inshanahan casewas follows sixthly addition cost expense mortgagor may liable law equity pay respect security otherwise relation thereto mortgagor upon demand pay cost expense incurred mortgagee consequence account default part mortgagor hereunder incurred mortgagee preservation manner reference security cost expense shall time payment expenditure thereof respectively repaid mortgagee mortgagor deemed principal money covered security shall carry interest accordingly 21 honour mr justice street observed term clause widest possible nature imposed upon mortgagor obligation pay something addition cost expense would liable law equity pay circumstance honour construed clause include cost solicitor client basis 22 benefit consideration mind one return clause 13 5 one find plaintiff point three separate subject matter dealt clause case subject matter different first one refers stamp duty second cost preparation lease third cost connection default effectively relation default one statement general term appears third part clause part clause little different one inadelphiand similar considered honour justice williams injamiesons case 23 find helpful rely upon use word reasonable second part clause 13 5 contrast word third part clause time mortgage executed least three different base cost could ordered present litigation considering order made 1 july 1994 two possible base seen 208f 1 2 party party cost include assessment reasonableness respect incurring amount cost emphasis changed former touchstone necessary proper cost circumstance seems appropriate one confine attention part clause 13 5 deal relevant cost namely third part clause regard clause considered case referred satisfied clause change normal basis present rule party party cost 24 accordingly view cost ordered paid honour order 2 november 1999 party party basis thus necessary deal question whether cost suffered incurred consequence connection default lease party bring short minute give effect reason outstanding matter last updated 19 06 2000
V02_14453 [2003] RRTA 1016 (24 October 2003).txt	v02 14453 2003 rrta 1016 24 october 2003 refugee review tribunaldecision reason decisionrrt reference v02 14453country reference indiatribunal member m kim magnussendate decision made 24 october 2003place melbournedecision tribunal affirms decision grant protection visa ___________________________________in accordance withsection 431of themigration act 1958the tribunal publish statement may identify applicant relative dependant applicant backgroundthe applicant claim citizen india arrived australia late 1990s four year later lodged application protection class xa visa department immigration multicultural indigenous affair themigration act 1958 act delegate minister immigration multicultural indigenous affair refused grant protection visa applicant applied review decision legislationunders 65 1 act visa may granted decision maker satisfied prescribed criterion visa satisfied subsection 36 2 act relevantly provides criterion protection visa applicant visa non citizen australia minister satisfied australia protection obligation refugee convention amended refugee protocol subsection 36 2 act force 1 october 2001 substantially effect refugee convention refugee protocol defined mean 1951 convention relating status refugee 1967 protocol relating status refugee respectively 5 1 act criterion grant protection class xa visa set inparts 785and866of schedule 2 themigration regulation 1994 definition refugee australia party refugee convention refugee protocol generally speaking protection obligation people refugee defined article 1a 2 convention relevantly defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return high court considered definition number case notably chan yee kin v minister immigration ethnic affair 1989 hca 62 1989 169 clr 379 applicant anor v minister immigration ethnic affair anor 1997 190 clr 225 minister immigration ethnic affair v guo anor 1997 191 clr 559 chen shi hai v minister immigration multicultural affair 2000 hca 19 2000 201 clr 293 minister immigration multicultural affair v haji ibrahim 2000 hca 55 2000 204 clr 1 minister immigration multicultural affair v khawar 2002 187 alr 574 section 91r 91s act qualify aspect article 1a 2 purpose application act regulation particular person four key element convention definition first applicant must outside country second applicant must fear persecution 91r 1 act persecution must involve serious harm applicant 91r 1 b systematic discriminatory conduct 91r 1 c expression serious harm includes example threat life liberty significant physical harassment ill treatment significant economic hardship denial access basic service denial capacity earn livelihood hardship denial threatens applicant capacity subsist 91r 2 act high court explained persecution may directed person individual member group persecution must official quality sense official officially tolerated uncontrollable authority country nationality however threat harm need product government policy may enough government failed unable protect applicant persecution persecution implies element motivation part persecute infliction harm people persecuted something perceived attributed persecutor however motivation need one enmity malignity antipathy towards victim part persecutor third persecution applicant fear must one reason enumerated convention definition race religion nationality membership particular social group political opinion phrase reason serf identify motivation infliction persecution persecution feared need solely attributable convention reason however persecution multiple motivation satisfy relevant test unless convention reason reason constitute least essential significant motivation persecution feared 91r 1 act fourth applicant fear persecution convention reason must well founded fear add objective requirement requirement applicant must fact hold fear person well founded fear persecution convention genuine fear founded upon real chance persecution convention stipulated reason fear well founded real substantial basis merely assumed based mere speculation real chance one remote insubstantial far fetched possibility person well founded fear persecution even though possibility persecution occurring well 50 per cent addition applicant must unable unwilling fear avail protection country country nationality stateless unable unwilling fear return country former habitual residence whether applicant person australia protection obligation assessed upon fact exist decision made requires consideration matter relation reasonably foreseeable future claim evidencethe tribunal department file includes protection visa application delegate decision record tribunal also regard material referred delegate decision material available range source content discussed summary initial protection visa application applicant claimed follows left india late 1990s undertake tertiary study australia parent made decision send australia problem family india family friend mr murdered cousin arrested mistreated police suspect murder even though nothing father mother also taken police station questioned murder sort conduct police led family believe future india security situation india become worse since departure late 1990s family life city short distance pakistan border within range nuclear conventional weaponry likely war india pakistan country advising national leave india pakistan problem india large muslim population actually 3 4 time number muslim government acknowledges number terrorist pakistani sympathiser fifth column india violence every day hindu muslim constant exchange fire betweens indian pakistani show violence leading full scale war suicide bombing attack civilian guerrilla attack use biological chemical weapon water supply poisoned police try make people confess crime committed use torture happened cousin parent threatened fear happen return ever suspect case pakistan tested intercontinental weapon india escape war applicant gave oral evidence tribunal answer question tribunal applicant provided following information born india lived city left australia late 1990s finishing year 12 parent younger sibling still live father mother professionally employed relation murder victim close family friend police suspected family involved murder photograph victim home member applicant family taken family function met victim close friend relative victim wife relationship people involved politics may person made accusation family cousin arrested treated extremely harshly police since cousin released hiding cannot return home belief police really care murdered victim arrest anyone mistreat extort money release whilst returned twice visit family since initial travel australia late 1990s stay parent home fear may arrested stayed relative home return visit relative family acquaintance murder victim murder remains unsolved police continually reopen file court proceeding going moment relation case even though one charged murder one occasion returned police came parent home looking saying knew back country believe imminent risk nuclear war india pakistan however country amassed troop border two country constant report newspaper home large city would target attack war india pakistan muslim people living throughout home city even area majority population hindu think specifically targeted individual group anyone including could happen wrong place outbreak violence attack occurred authority india cannot protect civilian violence demonstrated situation kashmir 10 000 people killed government done nothing prevent thisfindings reasonsthe applicant travelled australia valid indian passport issued india tribunal find applicant indian national currently outside country nationality applicant made 2 separate claim relation fear happen return india first specific claim police arrest mistreat way cousin tribunal accepts applicant account murder mr affected family whilst applicant unable give specific date murder arrest cousin account event consistent throughout initial application interview hearing tribunal tribunal accepts applicant cousin arrested local police suffered serious mistreatment custody late 1990s tribunal accepts applicant cousin released payment bribe family tribunal accepts also applicant parent questioned police part investigation murder around time applicant cousin arrested tribunal note family considered particular social group convention definition refugee tribunal accepts applicant genuine fear could harmed local law enforcement authority returned india according applicant case remains unsolved tribunal unable elicit applicant nature court proceeding going relation matter however tribunal accepts applicant belief due widespread corruption police force india person may arrested even evidence person involved criminal activity tribunal must also satisfied however objective basis fear held applicant tribunal accept police actively seeking applicant relation murder time left india necessary applicant leave india time avoid arrest applicant home city several month murder period time cousin arrested parent questioned police intended arrest question applicant relation matter could done time applicant returned india twice since time period month without come attention law enforcement authority whilst may stayed relative tribunal considers police actively seeking applicant would known india time would able locate without difficulty relative also life applicant home city tribunal considers police searching applicant claimed would able find relative ease two return visit india tribunal accept law enforcement authority continued interest applicant cousin member applicant family according applicant evidence cousin released family paid bribe applicant said also reason cousin arrest extort money family tribunal accepts likely explanation authority contact towards cousin nothing happened cousin applicant parent since initial arrest questioning despite applicant evidence cousin remains hiding tribunal considers law enforcement authority would able locate cousin wish tribunal therefore find authority india interest applicant cousin apart initial questioning applicant parent also subject attention authority similar reason tribunal accept police currently seeking arrest question applicant relation matter event occurred number year ago noted substantial period time murder applicant left india police could questioned arrested applicant intention returned india twice since time without adverse consequence tribunal therefore find chance applicant member family arrested detained mistreated police relation murder mr remote applicant fear therefore well founded second claim made applicant general claim fear war india pakistan would place risk harm tribunal considers chance nuclear attack pakistan india remote tribunal note suggestion put applicant hearing applicant said think nuclear war likely happen however reiterate belief conflict two state likely newspaper frequently reported troop build ups along border tribunal find chance war declared pakistan india vice versa remote even event occur harm applicant would convention related hardship danger person caught war civil disturbance without amount persecution within meaning convention applicant also made general claim fear harm muslim resident local area recent past incident intercommunal violence throughout india however according country information government tolerate condone conduct act protect citizen attack occur example 2003 uk home office report state follows united nation special rapporteur religious intolerance concluded situation india relating tolerance non discrimination based religion generally satisfactory country commitment democracy sound democratic institution legislative government measure secular nature state contributed religious tolerance india annual report international religious freedom published 7 october 2002 u department state concluded despite incident violence discrimination period covered report relation various religious group generally amicable among substantial majority citizen indian government stated 80 attack minority motivated local incident economic argument intra denominational feud tribunal cannot rule possibility outbreak communal violence applicant home city however tribunal find harm may potentially befall applicant would random result religion political opinion chopra v mima 1999 fca 480 persecution purpose convention requires harm feared systematic selective discriminatory rather general random mima v ibrahim 2000 hca 55 2000 204 clr 1 conclusion hearing applicant stated wished submit document support application tribunal advised applicant information provided would taken account decision made information must provided later 14 day date information received tribunal date decision taking account applicant claim individually cumulatively tribunal find applicant face real chance persecution convention reason fear well founded conclusionhaving considered evidence whole tribunal satisfied applicant person australia protection obligation refugee convention amended refugee protocol therefore applicant satisfy criterion set 36 2 act protection visa decisionthe tribunal affirms decision grant protection visa m kim magnussen
Sadleirs Transport Co (NSW) Pty Ltd T_A Sadleirs Transport [2021] FWCA 6781 (22 November 2021).txt	sadleirs transport co nsw pty ltd sadleirs transport 2021 fwca 6781 22 november 2021 last updated 24 november 2021 2021 fwca 6781fair work commissiondecisionfair work act 2009s 185 enterprise agreementsadleirs transport co nsw pty ltd sadleirs transport ag2021 8356 sadleirs kewdale wa logistics enterprise agreement 2021road transport industrydeputy president saundersnewcastle 22 november 2021application approval sadleirs kewdale wa logistics enterprise agreement 2021 1 application made approval enterprise agreement known thesadleirs kewdale wa logistics enterprise agreement 2021 agreement application made pursuant tosection 185of thefair work act 2009 act agreement single enterprise agreement 2 satisfied requirement ofsections 186 187and188as relevant application approval met 3 transport worker union australia bargaining representative agreement given notice undersection 183of act want agreement cover accordance withsubsection 201 2 act note agreement cover organisation 4 agreement approved accordance withsection 54of act operate 29 november 2021 nominal expiry date agreement 31 june 2023 deputy presidentprinted authority commonwealth government printer ae513967pr736005
Christess Pty Ltd v Roads and Maritime Services [2019] NSWLEC 1393 (23 August 2019).txt	christess pty ltd v road maritime service 2019 nswlec 1393 23 august 2019 last updated 23 august 2019land environment courtnew south walescase name christess pty ltd v road maritime servicesmedium neutral citation 2019 nswlec 1393hearing date conciliation conference 8 august 2019date order 23 august 2019decision date 23 august 2019jurisdiction class 3before maston acdecision court order 1 compensation determined sum 431 000 pursuant section 55 land acquisition term compensation act 1991 act compensation acquisition whole lot 210 deposited plan 1240517 part land certificate title 5 599382 land formerly known 2789a northern road luddenham nsw 2745 2 applicant duly complete deliver respondent deed release indemnity issued respondent within 28 day final order proceeding deed reflect term agreement provide subject matter proceeding finalised full final basis 3 within 28 day respondent receiving applicant duly completed executed deed release indemnity direction payment respondent pay applicant compensation le advance compensation paid b statutory interest respect compensation calculated accordance act 4 respondent pay applicant amount respect applicant cost proceeding agreed party conciliation process interest payable amount catchword compulsory acquisition conciliation conference agreement party orderslegislation cited land acquisition term compensation act 1991land environment court act 1979category principal judgmentparties christess pty ltd applicant road maritime service respondent representation counsel hourigan applicant nash respondent solicitor wilson solicitor attorney applicant herbert smith freehills respondent file number 2019 149643publication restriction nojudgmentcommissioner proceeding comprise objection offer compensation amount 292 100 arising compulsory acquisition respondent lot 210 deposited plan 1240517 part land certificate title 5 599382 known 2789a northern road luddenham nsw 2745 applicant unders 66of theland acquisition term compensation act 1991 act court required determine amount compensation payable respondent applicant within class 3 court jurisdiction court arranged conciliation conference unders 34 1 theland environment court act 1979 lec act party held 8 august 2019 presided conciliation conference conciliation conference party reached agreement term decision proceeding would acceptable party decision involved respondent agreeing pay applicant following amount compensation act arising compulsory acquisition total compensation 431 000 34 3 lec act must dispose proceeding accordance party decision party decision decision court could made proper exercise function party decision involves court exercising function 66 2 act hear dispose applicant claim compensation satisfied party decision one court could made proper exercise function required 34 3 lec act party decision decision court could made proper exercise function required 34 3 lec act dispose proceeding accordance party decision court order 1 compensation determined sum 431 000 pursuant section 55 theland acquisition term compensation act 1991 act compensation acquisition whole lot 210 deposited plan 1240517 part land certificate title 5 599382 land formerly known 2789a northern road luddenham nsw 2745 2 applicant duly complete deliver respondent deed release indemnity issued respondent within 28 day final order proceeding deed reflect term agreement provide subject matter proceeding finalised full final basis 3 within 28 day respondent receiving applicant duly completed executed deed release indemnity direction payment respondent pay applicant compensation le advance compensation paid b statutory interest respect compensation calculated accordance act 4 respondent pay applicant amount respect applicant cost proceeding agreed party conciliation process interest payable amount j mastonacting commissioner court
G v Credit Provider [2003] PrivCmrA 5 (1 May 2003).txt	g v credit provider 2003 privcmra 5 1 may 2003 last updated 29 august 2003case citation g v credit provider 2003 privcmra 5subject heading disputed default consumer credit information file ground amount listed inaccuratelaw section 18g and18e 8 b theprivacy act 1988 cth determination 2003 2privacy act 1988 cth 11b 1 b v b concerning assigneesfacts early 1999 complainant owed 319 original credit provider complainant disputed amount charged requested account amended account amended complainant pay amount owed april 1999 mobile phone service disconnected however monthly service charge continued accrue around time australian competition consumer commission accc charged original credit provider making false representation ruled original credit provider credit customer 50 allow exit contract payment default 1 365 listed 3 july 2000 complainant individual consumer credit information file debt purchased respondent credit provider sent notice demand complainant november 2002 1 365 listed incorporated 319 owed accrual monthly service charge complainant paid amount demanded order avoid threatened litigation able apply home loan successfully reserved right complain commissioner issue commissioner determination 2003 2 provides organisation purchase debt credit provider becomes new credit provider way right liability attached original credit provider assigned new credit provider section 18g theprivacy actrequires credit reporting agency possession control credit information file credit provider credit reporting agency possession control credit report must take reasonable step ensure personal information contained file report accurate date complete misleading information credit provider reasonable ground believing accurate provided credit reporting agency accordance withsection 18e 8 b theprivacy act original credit provider adhered accc ruling complainant would able exit contract time would owed 269 319 50 credited 1 365 listed overdue individual consumer credit information file also included accrual monthly service charge accordingly commissioner found credit provider breach ofsections 18g and18e 8 b theprivacy act outcome result investigation credit provider reimbursed complainant 1 096 difference amount paid 1 365 amount owed 269 also removed default listed individual consumer credit information file investigation closed unders 41 2 theprivacy act ground credit provider adequately dealt matter office federal privacy commissionermay 2003
BCN18 v Minister of Home Affairs & Anor [2018] FCCA 2641 (28 September 2018).txt	bcn18 v minister home affair anor 2018 fcca 2641 28 september 2018 last updated 28 september 2018federal circuit court australiabcn18 v minister home affair anor 2018 fcca 2641catchwords migration application review decision administrative appeal tribunal tribunal found applicant witness truth whether tribunal made illogical assumption considering psychologist report psychiatrist report submitted applicant whether tribunal rejected expert opinion substituted opinion whether logical connection evidence conclusion drawn tribunal tribunal credibility concern overcome evidence applicant mental state jurisdictional error established legislation migration act 1958 cth s 5j 36 476cases cited minister immigration citizenship v szmds 2010 hca 16minister immigration ethnic affair v wu liang 1996 hca 6 1996 185 clr 259mzxtt v minister immigration citizenship 2008 fmca 1007wago 2002 v minister immigration multicultural indigenous affair 2002 fcafc 437 194 alr 676applicant bcn18first respondent minister home affairssecond respondent administrative appeal tribunalfile number syg 610 2018judgment judge bairdhearing date 6 august 2018date last submission 6 august 2018delivered sydneydelivered 28 september 2018representationcounsel applicant m yusolicitors applicant m battisson human right pty ltdsolicitors first respondent mr fisher hwl ebsworthorders 1 application dismissed 2 applicant pay first respondent cost fixed sum 5 600 federal circuit courtof australiaat sydneysyg 610 2018bcn18applicantandminister home affairsfirst respondentadministrative appeal tribunalsecond respondentreasons judgmentintroductionthis application pursuant tos 476of themigrationact1958 cth judicial review decision second respondent administrative appealstribunal dated 31 january 2018 affirmed decision adelegateof first respondent theministerfor home affair minister immigration border protection made 25 may 2017 delegate refused grant applicant protection subclass 866 visa applicant 26 year old tajik sunni muslim citizen afghanistan arrived australia june 2015 subclass 309 provisional partner visa basis marriage kabul australian citizen afghani descent applicant married former wife m kabul 2014 returned australia sponsored applicant partner visa granted offshore end june 2015 applicant arrived australia however settled australia m informed wish married result breakdown relationship litany allegation m sibling made applicant charged domestic violence related offence m family applicant later exonerated charge spent time prison pending prosecution released bail m withdrawn sponsorship partner visa cancelled whilst released bail placed immigration detention 7 april 2017 applied visa subject present proceeding applicant appeared tribunal video conference 15 september 2017 give evidence present argument tribunal hearing conducted assistance interpreter dari english language applicant represented registered migration agent attended hearing 31 january 2018 tribunal affirmed decision delegate grant applicant visa 8 march 2018 applicant applied court judicial review tribunal decision applicant claim circumstancesaccording evidence thedepartmentof immigration border protection tribunal applicant claimed protection ground father work afghan american force taliban harm return afghanistan also claimed fear harm former wife family afghanistan applicant representative also claimed tribunal m family afghanistan connection military one high ranking military officer would likely know breakdown applicant marriage applicant claimed would suffer harm return tribunal decision 79 tribunal decisionthe tribunal held significant concern applicant credibility concluded witness truth account event protection claim based false tribunal made extensive adverse credibility finding applicant consequence finding tribunal rejected claim tribunal set credibility concern applicant evidence addressing evidence submission including employment set written statement dated 9 september 2016 expanded upon written statement dated 6 april 2017 b compliance interview 29 30 june 2016 c interview delegate 27 april 2017 letter additional material submitted applicant representative letter dated 11 may 2017 23 june 2017 3 august 2017 25 october 2017 e tribunal hearing 15 september 2017 application partner visa made october 2014 41 tribunal addressed applicant evidence submission heading applicant employment 8 21 recommendation letter x 22 35 document related employment 36 40 evidence employment education application partner visa 41 45 omission important claim compliance interview 46 51 evidence employment applicant father 52 60 evidence receiving letter taliban 61 66 tribunal 67 concluded assessment whether applicant relating truthful account follows considered cumulatively concern tribunal hold pplicant credibility lead tribunal find witness truth account event protection claim based false reaching conclusion 68 70 tribunal considered submission made representative writing well oral submission made tribunal hearing however reason gave 69 following found submission overcome adverse assessment applicant credibility court party agreed applicant challenge tribunal decision focus attention tribunal treatment two medical report report psychologist m h dated 24 october 2016 submitted applicant visa application b report psychiatrist dr dated 7 june 2017 submitted applicant representative together document cover email dated 2 august 2017 accompanied letter dated 3 august 2017 m h dr reported applicant history circumstance relating marriage including arriving australia spouse visa allegation charge arrest domestic violence incarceration jail detention dr report later time also recognises dismissal charge m h also recorded applicant concern fearing return afghanistan ex wife family could harm without repercussion afghanistan also fearful persecution taliban due family work american army psychologist reportin report m h state applicant fearful return afghanistan exwife family could harm without repercussion afghanistan also fearful persecution taliban due family work american army applicant reported experiencing excessive anxiety worry day last year number thing marital breakdown criminal case incarceration concern future m h state applicant presented generalised anxiety disorder major depressive disorder beginning breakdown marriage australia m h identified symptom consistent generalised anxiety disorder based dsm v reporting difficulty controlling worry symptom causing significant distress impairment daily functioning m h noted applicant presentation result also consistent major depressive disorder based dsm v stated symptom caused applicant clinically significant distress impairment daily functioning m h reported applicant symptom started allegation made m family police involvement m h concluded applicant mental health likely improve significantly released immigration detention centre allowed reside community nonetheless ongoing support mental health professional recommended monitor manage symptom psychiatrist reportin report dated 7 june 2017 dr noted stressor cultural shock court visa application procedure detention centre year anxiety family case stating applicant like stay mckenzie found hard cope detainee jail nothing common dr noted current medication diagnosed anxiety mild depression situational dr identified current medication applicant taking provided plan including two month review applicant representative letter dated 3 august 2017 referred psychiatrist report dr subheading mental health stating applicant mental health deteriorating closed administrative detention applicant diagnosed adjustment disorder anxious mood taking antidepressant see psychiatrist report recently moved christmas island away support network noted applicant remains administrative detention held prison crime cleared committing requested decision tribunal taken timely expedient manner page318 tribunal consideration medical evidencethe tribunal addressed medical evidence 71 72 71 reaching conclusion credibility tribunal also considered medical evidence pplicant submitted tribunal department according evidence october 2016 psychologist found pplicant presented feature generalised anxiety disorder major depressive disorder beginning breakdown marriage australia june 2017 psychiatrist assessed pplicant adjustment disorder anxious mood disorder taking medication psychiatrist refers stressor event occurred since pplicant arrived australia namely breakdown marriage 72 tribunal carefully considered evidence record pplicant well able meaningfully participate hearing give evidence diagnosis mental health professional great degree based information claim self reported pplicant tribunal acknowledges diagnosis made tribunal find pplicant witness truth account event protection claim based false also find credible evidence caused mental state mental health professional assessed pplicant quite possibly return afghanistan immigration status australia resolved mental state could also resolve rate claim made pplicant would suffer serious harm afghanistan mental state assessed claim arise evidence tribunal tribunal took account various document submitted corroborate applicant claim reached conclusion document overcome concern tribunal hold credibility significantly discredit witness see 73 tribunal give weight certain document including video submitted representative tribunal consideration evidencethe tribunal concluded applicant witness truth disbelieved evidence employment work undertaken applicant father mother rule taliban found evidence false tribunal similarly disbelieved applicant evidence father involvement political party parent suffered harm life afghanistan time mother suffered stroke applicant studying undertaking work pharmacist afghanistan tribunal believe applicant claim evidence except limited respect 79 follows tribunal accepts pplicant married afghanistan separated wife brought domestic violence related charge australia dismissed tribunal concluded credible evidence anyone afghanistan would seek harm applicant failure marriage australia tribunal believe applicant entered marriage afghanistan escape harm disbelieved applicant virtually claim evidence placed tribunal turned ass whether applicant hold well founded fear persecution within meaning ofs 5j 1 act concluded 100 basis country information security ethnicity religion returnees inference drawn country information risk applicant suffering serious harm afghanistan remote real chance hold well founded fear persecution within meaning ofs 5j 1 act 101 tribunal turned consider complementary protection criterion reason tribunal found risk applicant suffering significant harm afghanistan remote concluded accordingly substantial ground believing necessary foreseeable consequence pplicant removal australia receiving country afghanistan real risk suffer significant harm ground reviewthe applicant set one ground review application follows 1 second respondent tribunal erred making illogical assumption applicant mental health condition particularsa tribunal 71 decision accepted october 2016 psychologist found applicant presented feature generalised anxiety disorder major depressive disorder beginning breakdown marriage australia june 2017 psychiatrist assessed applicant adjustment disorder anxious mood disorder taking medication b 72 decision tribunal concluded tribunal acknowledges diagnosis made tribunal find pplicant witness truth account event h protection claim based false also find credible evidence caused mental health state mental health professional assessed pplicant quite possibly return afghanistan immigration status australia resolved mental state could also resolve c 79 decision tribunal accepted applicant married afghanistan since separated wife australia accepted fact logical basis finding credible evidence caused applicant mental health condition logical basis tribunal finding 72 decision applicant mental health condition could resolve return afghanistan e making finding 72 decision tribunal impermissibly substituted lay opinion expert opinion provided psychologist psychiatrist october 2016 june 2017 making finding applicant state mental health f finding made tribunal 71 72 decision relevant tribunal conclusion applicant witness truth account event could believed consequently finding also relevant tribunal decision affirm refusal visa proceeding courtthe applicant represented counsel m yu minister represented mr fisher solicitor applicant present court hearing noted party agreed applicant challenge tribunal decision focus attention tribunal treatment two medical report applicant submissionsms yu applicant submitted fact credibility matter tribunal determine question fact mean challenge finding credibility open submitted present case tribunal reached finding without logical probative basis relying onminister immigration citizenship v szmds 2010 hca 16at 135 submit tribunal decision may affected jurisdictional error illogicality irrationality among thing logical connection evidence inference conclusion drawn also submitted unwarranted assumption matter relevant formation view credibility also amount jurisdictional error relying onwago 2002 v minister immigration multicultural indigenous affair 2002 fcafc 437 194 alr 676 per lee rd nicholson jj 54 carr j agreeing 57 m yu submitted tribunal finding comment 72 went beyond mere assessment weight instead amounted rejection medical opinion m h dr substitution lay opinion place expert opinion submitted tribunal accept expert opinion could relied respect conclusion applicant state mental health submitted read fairly tribunal accept applicant suffering diagnosed mental health issue instead view mental state would resolve simply abandon migration issue australia return afghanistan submitted logical basis tribunal arrive conclusion open tribunal take approach two key reason 1 causal link applicant mental health issue identified m h dr applicant personal circumstance including surrounding breakdown relationship former wife m tribunal accepted fact relationship breakdown domestic violence charge dismissal see 79 2 tribunal properly consider nature quality expert evidence provided m h dr instead substituted lay opinion expert opinion referring tomzxttv minister immigration citizenship 2008 fmca 1007at 37 m yu urged court follow court approach inmzxtt submitted tribunal made unwarranted assumption applicant state mental health speculating condition could resolve merely reason return afghanistan effectively rejected expert opinion m h dr substituted lay opinion m yu submitted witness state mental health inextricably linked ability recount event consequently perceived credibility decision maker submitted credibility issue care need taken decision maker including proper consideration medical evidence adduced explanation given gap inconsistency evidence submitted tribunal conclusion applicant mental health credibility formed substantial part reason affirming decision review conclusion led find applicant would harmed return afghanistan result find meet criterion grant protection visa considerationcommencing 7 67 tribunal refers considers significant inconsistency development applicant claim tribunal considers detail paucity early claim example written statement dated 9 september 2016 6 april 2017 compared later detailed written submission new claim several point decision tribunal contrast detailed statement nonetheless omit important claim see example tribunal treatment evidence 8 35 relation applicant purported employment period november 2012 december 2013 z company part time basis earlier claimed said delegate worked driver company period applicant statement lacked information detail claimed working driver period applicant however provided detail recommendation letter x relied support claim may 2017 ceased rely fabrication tribunal expressed concern significant inconsistency conflict applicant evidence employment father employment personal circumstance family tribunal noted merely absence detail rather basic inconsistency two visa application partner protection fundamental aspect applicant life namely education employment see eg 44 gave rise concern lead finding mr fisher minister submitted important note structure tribunal reason develop follows 7 tribunal concludes decision review affirmed reference claim protection due father work afghan american force taliban harm tribunal commencing 8 several page explains concern applicant credibility reason concern reference inconsistency omission applicant evidence including reliance false reference recommendation letter x considerable period time may 2017 arrives conclusion credit 67 tribunal turn set consider applicant representative submission applicant credibility including submission relating effect applicant extreme stress anxiety depression since arriving australia accused charged jailed basis false accusation violent behaviour related breakdown marriage tribunal record representative submission applicant memory approach protection visa application process clear ordered subject calm consideration 69 tribunal say dealt applicant mental state experience since arrival australia find reasonably refers back 59 60 tribunal responds allowing various matter mentioned representative continues notwithstanding matter written statement pplicant given clear detailed account father work afghanistan somewhat precise period employment none matter mentioned representative explain excuse inconsistency vagueness evidence issue tribunal considered additional evidence submitted applicant applicant submitted video appeared produced v company related construction school military facility 2007 involved american force claimed father appeared video tribunal noted appearance video overcome inconsistency vagueness applicant evidence matter returning 69 tribunal satisfied concern held applicant credibility explained excused ground submitted representative 70 tribunal summarises significant inconsistency applicant evidence follows 70 tribunal accept pplicant mental state experience since arrival australia could possibly explain significant inconsistency evidence father employment central feature protection claim willingness rely false reference x omission basis seek protection interview department inconsistent evidence receiving letter taliban tribunal accept mental state experience australia cause important credibility issue submitted elegate consider hear pplicant evidence relating knowledge representative claimed pplicant held particular construction method used afghanistan even pplicant hold knowledge would overcome concern tribunal hold credibility best tribunal could conclude credible evidence pplicant acquired knowledge purpose respect used infer tribunal summary 70 saying problem applicant evidence extensive cannot explained applicant mental state tribunal deal report m h dr reason give 72 report overcome tribunal concern specifically tribunal acknowledges diagnosis made implication accepts diagnosis however extent medical report set information claim self reported medical expert applicant example m h report regarding family danger return diagnosis persuade tribunal applicant claim credible tribunal found credible evidence caused mental state mental health professional assessed pplicant note dr m h posit applicant mental state could improve released detention informed bar table applicant presently detention 72 tribunal stated quite possibly return afghanistan immigration status australia resolved mental state could also resolve quite correct applicant counsel submits sentence speculation however consider sentence tribunal rejecting mental health professional report rather speculation link diagnosis dr report applicant anxiety mild depressive disorder situational see 16 m h conclusion see 15 tribunal 72 exploring whether health professional report provide credible evidence support applicant claim note applicant claim protection summarised decision 7 79 relation family member connected regime likelihood harm return conclude tribunal correct observe 72 applicant make claim would suffer serious harm afghanistan mental state assessed claim arose evidence tribunal applicant claim likelihood harm basis mental state return tribunal cavil diagnosis key finding fact credible evidence caused applicant mental state mental health professional assessed applicant finding fact proceeds premise applicant mental state assessed view applicant mental state could resolve immigration status resolved reflects m h conclusion condition likely improve significantly released immigration detention centre allowed reside community well dr observation one stressor affecting applicant detention centre year view tribunal resolution mental state applicant future distinct material finding fact tribunal neither report establishes cause mental state originating applicant protection claim fear harm taliban return arising work employment former wife family arising breakdown marriage contrary applicant submission conclude tribunal reason accept applicant suffering diagnosed mental health issue concluded diagnosis displace tribunal finding 67 applicant witness truth account event protection claim based false neither m h dr attributed diagnosis claim underpinning applicant protection visa application note even m h dr expressed opinion applicant mental health condition caused certain event consistent protection claim tribunal although respecting diagnosis bound accept psychologist opinion factual state affair leading diagnosis noting dr proffer opinion subramanian v minister immigration multicultural affair 2001 fca 891 28 affirmed appeal subramanian v minister immigration multicultural affair 2002 fcafc 255 47 48 algama v minister immigration 2001 fca 476at 127 andszhhf v minister immigration citizenship 2008 fmca 1208 15 appeal dismissed inszhhf v minister immigration citizenship 2008 fca 1818 even could said impliedly implicitly mental health professional considered cause cause contributor applicant mental health status marital circumstance allegation domestic violence since come australia stress detained prison detention circumstance link applicant experience afghanistan relevant protection claim extent applicant representative tribunal made submission applicant mental health status provided explanation inconsistency vagueness applicant account event tribunal considered dealt submission 68 70 referring back consideration 8 67 recording 67 tribunal serious concern applicant credibility move consider whether countervailing consideration considered applicant representative submission concerning applicant memory problem also diagnosis mental health professional matter tribunal make assessment evidence tribunal properly tribunal accepted mental health professional diagnosis applicant suffering variously anxiety disorder depressive state identified medical report conclusionthe tribunal found significant indeed overwhelming credibility concern applicant claim evidence tribunal found extent inconsistency combination detail vagueness great accounted overcome mental pressure applicant representative submitted applicant placed period making first written statement september 2016 hearing tribunal tribunal reached conclusion material provided reason finding inconsistency conclude tribunal err making illogical assumption applicant mental health coming conclusion applicant credible witness rather tribunal concluded basis significant inconsistency evidence applicant witness truth credible tribunal tested conclusion reference applicant representative submission considering accepting mental health professional diagnosis concluded material available diagnosis overcome concern applicant credibility whilst expressed felicitous language high court inminister immigration ethnic affair v wu liang 1996 hca 6 1996 185 clr 259has cautioned appropriate nitpick tribunal expression reason conclude tribunal reference lack credible evidence fact caused mental state applicant finding absence independent evidence cause originating relevant event applicant protection visa claim made namely claim summarised 7 79 finding open tribunal material follows concluded tribunal erred applicant claim must dismissed hear party cost certify preceding fifty seven 57 paragraph true copy reason judgment judge bairddate 28 september 2018
1109657 [2013] MRTA 1234 (27 May 2013).txt	1109657 2013 mrta 1234 27 may 2013 last updated 21 june 20131109657 2013 mrta 1234 27 may 2013 decision recordapplicant mr gokul sharmamrt case number 1109657diac reference clf2011 137555tribunal member alexis wallacedate 27 may 2013place decision brisbanedecision tribunal remit application student temporary class tu visa reconsideration direction applicant meet following criterion subclass 572 vocational education training sector visa cl 572 223 2 schedule 2 themigration regulation 1994 cth andcl 572 223 2 iii schedule 2 regulation statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship refuse grant applicant student temporary class tu visa unders 65of themigration act 1958 cth act applicant applied department immigration citizenship visa 10 june 2011 delegate refused grant visa 23 august 2011 delegate refused visa basis applicant satisfy requirement cl 572 223 2 iii schedule 2 themigration regulation 1994 cth regulation applicant applied tribunal 15 september 2011 review delegate decision relevant lawat time visa application lodged student temporary class tu visa contained number subclass item 1222 schedule 1 regulation limited exception relevant case subclass granted applicant applies student depends upon type course applicant enrolled offer enrolment principal course subclass type course specified minister r 1 40a see cl 570 232 571 232 572 231 573 231 574 231 575 231 schedule 2 r 1 40a minister must specify instrument type course subclass student visa except subclass 576 ausaid defence sector subclass applicant must support ausaid minister defence minister cl 576 229 regard applicant current enrolment relevant subclass case subclass 572 vocational education training sector criterion grant subclass 572 visa set inpart 572of schedule 2 regulation issue present case whether applicant meet criterion cl 572 223 far relevant present matter criterion requires time decision minister satisfied applicant genuine applicant entry stay student applicant meet requirement subclause 2 clause 572 223 relevantly state 572 223 1 minister satisfied applicant genuine applicant entry stay student applicant meet requirement subclause 2 2 applicant meet requirement subclause applicant person designated underregulation 2 07ao applicant give minister evidence accordance requirement mentioned schedule 5a highest assessment level applicant ii minister satisfied applicant genuine applicant entry stay student regard stated intention applicant comply condition subject visa granted b relevant matter iii minister satisfied applicant hold visa applicant access fund demonstrated declared accordance requirement schedule 5a relating applicant financial capacity b applicant person designated underregulation 2 07ao minister satisfied first requirement applicant must provide evidence accordance requirement schedule 5a regulation relevant clause schedule 5a dictated assessment level applicant subject applicable assessment level assessment level student visa mean level assessment level 1 2 3 4 5 specified kind eligible passport student visa r 1 41 r 1 03 regulation regulation 1 41relevantly provides minister must specify written instrument assessment level kind eligible passport relation subclass student visa applicant student visa subject reason set highest assessment level applicant present case assessment level 4 schedule 5a requirement assessment level 4schedule 5a regulation specifies requirement assessment level 4 subclass 572 relevantly provides division 2 requirement assessment level 4clause 5a404 english language proficiency5a404the applicant must give evidence one following applies applicant undertake anelicosbefore commencing principal course ii achieved anielts testthat taken le 2 year date application overall band score least 5 5 b applicant undertake anelicosof 20 week duration commencing principal course ii achieved anielts testthat taken le 2 year date application overall band score least 5 0 c applicant fully funded ii level english language proficiency satisfies proposededucation provider iii applicant undertake anelicosbefore commencing principal course undertake elicos 20 week duration applicant le 2 year date application successfully completed requirement senior secondary certificate education course conducted australia b english ii successfully completed requirement senior secondary certificate education course specified minister instrument writing sub subparagraph b conductedoutside australia c conducted english iii holder student visa successfully completed substantial part course foundation course conducted english b leading qualification australian qualification framework certificate iv level higher iv successfully completed substantial part course specified minister instrument writing sub subparagraph b conductedoutside australia c conducted english leading qualification australian qualification framework certificate iv level higher v successfully completed foundation course conducted australia b english vi successfully completed course foundation study specified minister instrument writing sub subparagraph b conductedoutside australia c conducted english e applicant achieved le 2 year date application required score test specified gazette notice clause5a102 f applicant level english language proficiency satisfies applicant proposededucation provider ii least 5 year study english undertaken 1 following country australia b canada c new zealand south africa e republic ireland f united kingdom g united state america clause 5a405 financial capacity5a405 1 applicant must give accordance clause evidence applicant hasfunds acceptable sourcethat sufficient meet following expense thefirst 36 month course fee ii living cost iii school cost aa declaration applicant stating access tofunds acceptable sourcethat sufficient meetcourse fee living costsandschool costsfor remainder applicant proposed stayin australiaafter thefirst 36 month b evidence applicant fund acceptable source sufficient meettravel cost c evidence regular income individual including applicant providing fund applicant sufficient accumulate level funding provided individual 1a applicant fully funded b applicant funded wholly partly commonwealth government government state territory b government foreign country c multilateral agency ii proposes undertake course study course study together duration le 12 month iii applyingin australia proposed period stay result applicant total period lawful stayin australiabeing le 12 month c subject arrangement thecourse fee living costsandtravel costsfor primary person sfull period assessed primary person alone met provincial state government aforeign country written support government country ii organisation specified minister agazette noticefor paragraph applicant must give evidence applicant access fund sufficient support eachmember applicant family unitwho afamily applicant 2 clause acceptable individualmeans one following applicant b applicant sspouseorde facto partner c applicant sparents applicant grandparent e applicant brother sister f uncle aunt applicant australian citizen anaustralian permanent residentor aneligible new zealand citizen ii usually residentin australiafinancial support applicant proposededucation provider mean scholarship awarded basis merit open selection process ii awarded student enrolled course leading certificate iv qualification higher qualification iii awarded greater 10 overseas student course intake b 3 overseas student course intake b waiver applicant scourse feescarried following circumstance applicant part exchange program involves formal agreement aneducation providerand education institution aforeign country b reciprocal waiver course fee part agreement ii applicant proposes study full time iii applicant proposed study credited course undertaken applicant applicant shome countryfunds acceptable sourcemeans one following applicant successfully completed least 75 requirement principal course ii applied visa order complete course iii propose undertake course amoney depositheld acceptable individual aa paragraph apply money deposit anacceptable individualhas held least 6 month immediately date application b financial support applicant proposededucation provider ii commonwealth government government state territory iii government foreign country iv corporation conduct commercial activity outside country based b employ applicant role relation applicant sprincipal courseis direct relevance v multilateral agency vi provincial state government foreign country provided written support government country vii organisation specified minister instrument writing subparagraph viii anacceptable non profit organisation c loan afinancial institutionthat made held name anacceptable individual loan government applicant shome countryclause 5a406 requirements5a406 1 applicant must give evidence successfully completed secondary schooling year 12 level equivalent b enrolled avocational education training course ii enrolled course pre requisite vocational education training course vocational education training course iii enrolled course pre requisite vocational education training course offer place vocational education training course 2 clause vocational education training course mean vocational education training course lead award qualification australian qualification framework diploma level b lead award qualification australian qualification framework advanced diploma level c course least 1 year duration lead award qualification australian qualification framework certificate iv level evidence findingsthe tribunal department file relating visa application delegate refused visa application satisfied applicant held visa would access fund demonstrated declared accordance schedule 5a requirement relating financial capacity required cl 572 223 2 iii theapplicant appeared tribunal 27 may 2013 give evidence present argument tribunal hearing conducted assistance interpreter punjabi english language applicant represented relation review registered migration agent tribunal confirmation enrolment coe document indicates applicant enrolled diploma business course commencing 8 april 2013 finishing 27 september 2013 evidence tribunal find applicant enrolled diploma course specified subclass 572 minister relevant instrument r 1 40a regulation accordingly relevant subclass review subclass 572 tribunal find applicant person designated r 2 07ao regulation hold eligible passport india according immi 11 011 2 april 2011 instrument r 1 41 force time application assessment level applicant subclass passport applicant subject assessment level 4 schedule 5a requirementsthe tribunal calculates current financial requirement applicant 6 900 tribunal calculated course fee living cost travel cost hearing applicant agreed calculation applicant relying upon two money deposit indian post office account tribunal evidence money deposit amount inr 349 902 held mr sohan lal sharma post office account since 20 september 2010 also evidence money deposit amount inr 294 595 held mr sanjogata sharma post office account since 20 september 2010 mr sohan lal sharma applicant father mr sanjogata sharma mother relationship applicant parent evidenced notation applicant passport copy appears department file tribunal find mr sohan lal sharma mr sanjogata sharma acceptable individual defined cl 5a405 2 schedule 5a regulation tribunal find applicant given evidence fund acceptable source defined cl 5a405 2 schedule 5a regulation evidence father mother acceptable individual held money deposit least six month immediately date visa application finding based evidence tribunal includes money deposit certificate balance showing amount fund held 20 september 2010 copy post office account book showing entry time decision tribunal also find evidence regular income individual providing fund applicant sufficient accumulate level funding provided individual required cl 5a405 1 c sch 5a regulation finding based document tribunal include copy applicant parent income tax return last three year copy business registration certificate applicant parent business india source regular income money deposit total inr 644 497 equivalent au 11 981 amount satisfies financial requirement calculated english language proficiencybefore tribunal letter shafston international college dated 14 june 2011 stating applicant completed diploma hospitality course 15 april 2011 letter state course full time conducted english also tribunal diploma certificate issued applicant completion course based evidence tribunal find applicant satisfies cl 5a404 iii schedule 5a basis evidence le two year date visa application applicant holder student visa successfully completed diploma course conducted english requirementsthe tribunal find applicant satisfies cl 5a406 1 schedule 5a basis secondary school certificate issued pubjab school education board appears department file tribunal find applicant satisfies cl 5a406 1 b schedule 5a basis coe diploma course basis tribunal find applicant given evidence accordance requirement schedule 5a subclass 572 assessment level subject relation requisite english language proficiency necessary financial capacity prescribed requirement accordingly applicant satisfies requirement cl 572 223 2 access fundsthe tribunal must also satisfied holding visa applicant access fund demonstrated declared accordance schedule 5a requirement relating financial capacity hearing applicant submitted evidence ability access fund held parent money deposit form signed affidavit support parent dated 21 may 2013 evidence fund declared accordance schedule 5a accessible found copy post office account book provided tribunal show current account balance available time decision basis evidence tribunal satisfied applicant holding visa access fund demonstrated declared accordance schedule 5a requirement relating financial capacity accordingly applicant satisfies cl 572 223 2 iii conclusionsfor reason given tribunal satisfied applicant meet requirement cl 572 223 2 cl 572 223 2 iii schedule 2 regulation accordingly remit matter delegate reconsideration decisionthe tribunal remit application student temporary class tu visa reconsideration direction applicant meet following criterion subclass 572 vocational education training sector visa cl 572 223 2 schedule 2 regulation andcl 572 223 2 iii schedule 2 regulation alexis wallacemember
V93_00406 [1994] RRTA 224 (18 February 1994).txt	v93 00406 1994 rrta 224 18 february 1994 refugee review tribunaldecision reason decisionrrt reference v 93 00406tribunal john gibsondate 18 february 1994place melbournedecision 1 applicant arefugee term theconvention relating status refugeesdone geneva 28 july 1951 modified theprotocol relating status refugeesdone new york 31 january 1967 decision primary decision maker refusing refugee status domestic protection entry permit set aside application domestic protection temporary entry permit remitted reconsideration direction criterion requiring applicant non citizen determined refugee convention protocol satisfied decision review applicationthis application tribunal review decision made 28 july 1993 applicant non citizen refugee 1951 united nation convention relating status refugee convention amended 1967 protocol relating status refugee protocol refusing grant domestic protection temporary entry permit dp ep criterion applicant non citizen determined refugee convention amended protocol application lodged 26 august 1993 section 22aa themigration act 1958 amended theact provides minister satisfied person refugee minister may determine writing person refugee refugee defined theactto meaning article 1 refugee convention article amended refugee protocol 4 1 theact subsection theactdefines refugee convention refugee protocol respectively convention relating status refugee done geneva 28 july 1951 protocol relating status refugee done new york 31 january 1967 application tribunal made pursuant 166bb theactwhich provides tribunal must review rrt reviewable decision rrt reviewable decision defined 166b 1 theactto include subject exception relevant present case decision made 1 september 1994 non citizen refugee convention amended protocol application dp ep refused apparent background circumstance applicant also satisfies requirement appliancant review rrt reviewable decision must non citizen refused application primary decision maker 166ba 2 theact must physically present migration zone application review made 166ba 3 theact migration zone defined bys 4of theactto include inter alia area consisting australian state territory applicant physically present migration zone date application review applicant standing seek review backgroundthe applicant 38 year old chinese national university graduate prior arrival melbourne december 1989 lecturer important communist party school institute one china largest provincial city prior event may june 1989 accepted study english country entered student visa made application refugee status dp ep 10 july 1991 application refused july 1993 lawthe central issue determination matter status applicant term definition refugee convention protocol definition contained article 1 section cconvention amended article 1 paragraph 2 protocol refugee defineda refugee person owing well founded fear persecutedfor reason race religion nationality membership particular social group politicalopinion outside country nationalityand unable owing fear unwillingto avail protection country nationality outside countryof former habitual residence unable owingto fear unwilling return five specified ground compendiously referred convention reason outside country nationalityfirst definition includes person outside country nationality applicant stateless person country former habitual residence applicant case meet requirement outside country nationality well founded fearsecondly applicant must well founded fear persecuted term well founded fear subject comment inchan yee kin v minister immigration ethnic affair 1989 hca 62 1989 169 clr 379 chan scase observed term contains subjective objective requirement fear concern applicant state mind term qualified adjectival expression well founded requires sufficient foundation fear see per dawson j p396 court chan case held fear persecution well founded real chance refugee persecuted return country nationality per mason cj p389 p398 per toohey j p407 per mchugh j p429 observed expression real chance clearly conveys notion substantial distinct remote chance persecution occurring p389 though weigh prospect persecution discount remote insubstantial p407 far fetched possibility persecution must excluded p429 therefore real chance persecution occurring may exist notwithstanding le 50 per cent chance persecution occurring p389 applicant refugee status may well founded fear persecution even though 10 per cent chance shot tortured otherwise persecuted p 429 persecution thirdly applicant must fear persecution accurately persecuted term persecuted defined convention protocol every threat harm person interference right constitutes persecuted court chan case spoke serious punishment penalty significant detriment disadvantage applicant return country nationality per mason cj p 388 likewise stated notion persecution involves selective harassment whether directed person individual member group subject systematic harassment although applicant need victim series act single act oppression may suffice p 429 30 harm threat harm part course selective harassment person whether individually member group subjected harassment reason membership group amount persecution done convention reason p 388 threat need product policy government person country nationality may enough depending circumstance government failed unable protect person question persecution p430 harm threatened may le loss life liberty includes appropriate case measure disregard human dignity serious violation core fundamental human right persecution historically taken many form social political economic discrimination hence denial access employment profession education imposition restriction freedom traditionally guaranteed democratic society freedom speech assembly worship movement may constitute persecution imposed convention reason p 430 1 date determination refugee status whether person refugee purpose legislation determined upon fact existing time decision made claim evidencethe applicant made number claim set original application response initial rejection application interview department immigration application review tribunal intensive examination oral hearing following summary applicant case worked number year prior event 1989 lecturer chinese communist party municipal committee school college administrative personnel henceforth school result reform promoted zhao ziyang encouraged graduate graduate teaching party school taught range sociology subject year half year course administrative management science section school student party cadre working position higher division chief various government department large industry enterprise pre requisite promotion cadre attend party school training year commenced teaching one two non party member assigned teach school asserted nature job political implication hearing applicant stated reason wanting come australia study initially accepted march april 1989 finally leave china afraid may persecuted activity pro democracy movement reason making application refugee status earlier familiar formality people frightened applying news spread could repercussion china serious one refusal point refer issue bearing applicant credibility response unfavourable primary assessment refugee application provided additional information contained initial application inference could drawn fact later specific information way manufactured constituted significant embellishment true role 1989 event read appropriate documentation heard applicant view substantial internal consistency regard case response subsequent oral written evidence although matter might exhibited slight tendency hearing put favourable gloss incident assist case overall found truthful credible witness fully examined previously gave detailed account event april june 1989 generally role circumstance prepared draw adverse inference failure set original application complete version ground relies one look actual refugee application indeed look like signed blank applicant contends case reason accept certain specific information appeared application form supplied person translated statement prepared applicant however view general finding credibility unnecessary go question pro democracy activity following death hu yaobang april 1989 applicant involved organizing establishing teacher support group city group formed meeting early may representative various research teaching association one approximately twenty tertiary institution representative social science academy group institution broadcasting vehicle declaration support teacher support group student broadcast applicant group personally helped organize large demonstration middle may liaising student autonomous organization city tertiary institution concerning route scale demonstration participant gathered main square demonstrated outside city party headquarters person school present another smaller demonstration held banner identifying school denouncing approach government demonstration teacher cadre student school attended well people various level society also demonstration school around 4 june helped organize applicant also drafted open letter group twenty teacher school ccp central committee support student movement urged dialogue letter identified teacher school copy sent city broadcasting v station broadcast applicant asserted strong impact came organ party seen coming support student invited others speak air forum identified name expressed view government reassess student movement commence dialogue course lecture school regular contact student lived campus encouraged join movement lecture meeting spoke espousing principle freedom democracy delivered speech school one demonstration representative teacher support group large demonstration helped organize applicant maintained high level involvement pro democracy movement name attracted support particularly among cadre student school reflected manner dealt crackdown followed tiananmen square incident signatory letter school participate participate extent applicant required self criticism school work unit fact involvement sending open letter demonstration applicant held banner identitying school specifically mentioned self criticism meeting june shortly crackdown began everyone school organized study document central government report activity others indicate one attitude pro democracy movement tried minimize activity public nature could hide applicant unlike others summoned local office public security bureau questioning interrogation involvement others demonstration special office especially set purpose first attended interrogation questioning beginning july teacher school happened attended eight hour every day end august required provide detail heard participant continually told told would cross checked account moreover threatened throughout period hidden anything found new material would put jail session basically told psb involvement although expected provide information others longer required attend warned case finalized still investigation report match finding psb would punished applicant expressed concern excessive extreme comment concerning party leadership made meeting rally disclosed could communicated authority witness asserts material gathered time would contained personal file held authority would view activity seriously intellectual worked party organ contends prc authority regarded activity organized intellectual like attack ccp government attempt provoke change socialist system employmentalthough applicant returned school end august longer allowed work lecturer right teach taken away automatic promotion cancelled demoted education research section sorted newspaper recorded name people borrowed performed general duty beginning august departure australia december told personnel section action taken political belief involvement pro democracy movement stated course comply opinion central government investigation continuing another member staff school party member taught course new academic year mother told march april 1993 former colleague met street told memorandum circulated school stating people different view central government suitable work party school mentioned implication name applicant maintained would able work tertiary school institution return china institution would offer job employ person person must investigated politically case would pas scrutiny someone situuation option available would denied employment trained anything else departure chinabefore applicant could leave china obtain second exit permit invariably obtained recommendation personnel section work unit decision grant second permit made accordance recommendation case impossible instead obtained letter president school stated applicant law abiding allowed go overseas seal school hand president took letter passport entry exit section psb city given exit permit asked hearing could happen still investigation stated many people investigation wanted list major concern authority control departure procedure technologically sophisticated normally psb would request personnel section provide recommendation someone going overseas president right make decision personnel report inquiry made apart obtaining recommendation throughout course pro democracy event president expressed tacit support movement november 1989 authority yet high level institution inquiry process self criticism although president knew position secure signed separate letter central committee urging dialogue movement treated riotous applicant departure prc accused living corrupt lifestyle privately allowing applicant leave country helping applicant breach discipline acting normal channel acting improperly relation letter approving applicant exit country imprisoned one half year released end 1991 remained surveillance applicant told letter beginning 1990 one colleague taught foreign language school australiaafter arriving country applicant participated several pro democracy demonstration 1990 two front chinese consulate general likely photographed consular staff attended concert vigil australia sent material concerning pro democracy movement around world material intercepted psb checked received presumbably confiscated body recent year attended demonstration nonetheless claim earlier activity would come attention chinese authority would still aware visit family chinain late 1990 security officer school personnel section another occasion local police came parent home asked time visit applicant activity china overseas word used officer suggested already knew involvement parent told tell involved anymore activity anything excessive asked report warned authority would still know involvement entirely clear view said parent said hearing seemed place gloss previous claim regarding visit extent authority actual knowledge past present activity notwithstanding slight doubt accept visit occurred least officer knowledge applicant pro democracy activity china although one guess level knowledge insofar could said represent indication authority continuing interest applicant fear returnthe applicant expressed fear level involvement teacher academic thus intellectual advocating pro democracy movement although different quality individual like zhang weiguo chen ziming wang juntao would expose risk harm return china particarly case finalized left authority still regard june 4 event counter revolutionary riot china one party dictatorship party determined maintain control expressed concern possible prosecution provision penal code 1989 activity said constituted breach code would able work teacher academic asked hearing whether would engage political activity return replied would something promote chinese democracy specific idea would save would express opinion democracy applicant stated firmly believed subsequently history would testify pro democracy movement correct discussion claim finding fact applicant asserts claim ground persecution reason political opinion relation accept account truthful essentially accurate description activity experience following event april june 1989 chinese authority embarked intensive campaign identify alleged anti government element arrest student academic took place three month activity early june widespread hunt dissident involved identifying involved planning organizing demonstration disturbance see example warner shanghai response deluge 1991 p 229 fact numerous category person sought authority inter alia 1 planner organizer instigated created disturbance push shanghai turmoil maier j tian anmen 1989 view shanghai china information documentation research centre contemporary china leiden category counter revolutionary rebel government rounding crackdown first category included professor lecturer offered student advice institution unit organized parade see irbd centre ming pao newspaper 15 june 1989 moreover immediately june 4 mandatory study session cadre state employee together written statement one ideological position requirement report one participation demonstration ordered authority hunt dissident china ir b documentation centre october 1990 entirely consistent description campaign applicant treated way described indeed given sensitive nature teaching position party school administrative personnel social science surprising dealt manner school question appears one institute administration set improve capacity government cadre manage administer modern economy occupy special place modernization cadre education huang 1992 cadre education p149 153 nonformal education modernization hayhoe r ed 1992 education modernization chinese experience aftermath pro democracy demonstration stringent central control exerted course social science humanity head state education commission li tieying suggested 1989 bourgeois liberalism democratic individualism manifested student demonstration result part certain course social science followed crackdown social science course form increased monitoring political soundness student sharp reduction number enrollment allowed hayhoe r 1990 china returned scholar democracy movement china quarterly 122 intellectual china traditionally treated great suspicion see kelly chinese intellectual 1989 democracy movement hick ed broken mirror china tiananmen enjoy high material status notwithstanding lack material status attends academic position evidence lecturer teacher considered hold position trust therefore enjoy degree respect however matter trust rather ambiguous one many respect teacher academic intellectual trusted may kept close organizational scrutiny position able influence attitude younger generation student chinese society critical authority see fang xiangshu academic intellectual china response 1993 writer stress utmost care taken distinguish superficial indication general liberalization situation individual academic intellectual furthermore asserts party fundamental attitude towards might influence younger generation critical authority never changed distinction made led astray person manipulated attitude clearly expressed beijing party committee draft recommendation thorough investigaton resolute suppression counter revolutionary rebel endorsed central committee thirthieth june 1989 document stipulates one target engaged counter revolutionary propaganda etc intellectual particularly vulnerable charge due factional struggle power within party political pendulum china may swing sharply time time way even chinese people including intellectual find hard anticipate teacher certainly expected crucial part role transmit student moral ideological precept party expression encouragement even tolerance dissenting opinion considered serious form misconduct attracting serious criticism penalty accusation directed people frequently couched term betraying trust party example sentencing ge hu 20th june 1990 lecturer shanxi coal mining management cadre institute well known dissident received seven year imprisonment crackdown court made much fact taken part illegal demonstration instigated counter revolutionary propaganda despite position university lecturer relation contrast invariably made leader participant person high compared low profile say would question distinction organizer non organizer context chinese political culture academic intellectual publicly expressed critical opinion already become figure intellectual leadership around organization may take place spontaneously dissemination idea traditional role dissident intellectual chinese society evidence crackdown non organizer would difficult find someone led public opinion sense branded organizer instigator evidence severity punishment well known dissident opposed veteran found case ding junze associate professor shanxi university twelve year imprisonment hu jian lecturer university ten year ge hu yao huxian lecturer shanxi medicine institute six year convicted counter revolutionary instigator protesting crackdown beijing rather organization rebellion academic number institute confirm crackdown variable severity many called instigator little participate expression protest refused recant punishment varied arrest detention without trial forced retirement unknown little known people likely far vulnerable punishment simply fate le likely attract attention outside china issue considered whether applicant argument would well founded fear return reason past status experience earlier dfat cable bj 40541 28 2 90 general comment anttitude chinese authority towards dissident noted mere involvement demonstration either china overseas likely result individual suffering official persecution either active passive significance extent nature individual political activism particular contact activist known particularly active though necessarily leadership position may find subject passive e g difficulty finding suitable employment active persecution specific reference made situation intellectual cable bj 41407 26 april 1990 follows intellectual elite particularly natural science field unlikely targeted working cultural area likely encounter difficult situation unless directly involved protest opposition activity position unlikely significantly worse colleague remained china cable stress prc authority interest led organized pro democracy movement little interest merely participated cable bj 44445 07 12 90 dfat add note warning reiterating earlier advice decision governing life individual taken highly arbitrary fashion depending host variable involving time place identity concerned dfat cable bj 1879 01 06 93 make following distinction chinese authority much concerned issue political activity overseas rather question whether returnees intention oppose government effective organized way return china student others high dissident profile significant influence china time tiananmen incident would remote chance facing administrative criminal sanction chinese authority unless return initiated organised activity opposing government effective way e wide scale later cable bj 2041 18 06 93 stressed reference intention refers judgement made authority returnees likely future behaviour judgement would based principally returnee dissident profile influence left china australia context risk facing academic return china fact potential influence perceived central government crucial regard accept analysis fang academic publicly espoused opinion critical political system assumes leadership role find applicant acted way described although high profile activist sense meant dfat nonetheless sufficiently high profile activist organizational capacity known institute pro democracy movement city concern interest authority could characterized simply participant protest activity ordinary member organization accept probability remained interest authority interrogation time departure short warranting arrest detention probably case psb doubt genuineness confession case still investigation also accept president school probably imprisoned part facilitated applicant departure applicant would conceivably able leave step taken find respect authority maintained adverse interest applicant throughout period accept visit family overseas student normal occurence least doubt mind visit applicant described could simply explained way feel measure relate past activity given probability early demonstration australia applicant attended observed chinese consular personnel also likely presence go unnoticed fact applicant well known dissident yet occupy leadership position reason action academic intellectual make likely would attract adverse attention government whether would amount persecution convention sense open question material taking account relevant circumstance case prepared find chance persecution occuring remote insubstantial far fetched possibility fortified conclusion number relevant matter dfat observation member occupation involves position public trust responsibility could well subjected administrative penalty beyond article 14 ten day detention provision although degree public trust responsibility might attract additional penalty could quite high cable bj 695 09 02 93 finding made applicant left china circumvented exit control procedure case still investigation probability matter activity pro democracy movement would appear personal dossier fact imprisonment school president linked least part assistance provided applicant leave country consideration might tend raise visibility eye authority return continuing climate china whereby despite ongoing economic liberalization ccp tolerate agitation multi party democracy increased human right release political prisoner free press amnesty international 1993 report note citizen free contradict basic communist party doctrine p 94 see dfat submission senate committee foreign affair defence trade reported age australian 26 10 93 recent arrest detention yang zhou shanghai qin yongmin wuhan taken away police place staying beijing working peace charter called political reform human right arrested notwithstanding made clear oppose communist party bangkok post november 27 1993 arranging series political trial beijing least 30 pro democracy activist secretly arrested 1992 accused forming joining dissident group circulating political leaflet planning activity commemorate third anniversary crackdown pro democracy protest amnesty international asa 17 wu 15 93 18 october 1993 jailing veteran dissident fu shenqi three year labour camp july 1993 telling foreign journalist activist shanghai move part crackdown dissident shanghai reflected tightening political control south china morning post 16 07 93 since appealed sentence secret trial dissident yao kaiwen gao xiaoliang one day beijing lost olympic bid harrassment human right activist particularly shanghai li gaotao president chinese association human right detained beaten severely south china morning post 20 october 1993 china information fbi chi 93 201 continuing increasingly stringent control placed propaganda department chinese cultural medium unit see australian 19 january 1994 correspondent south china morning post freeing well known dissident 1993 fang describes attention international medium domestic example made le well known dissident mean arrest detention yu zhou posted slogan commemorating third anniversary june 4 detained questioning september 1992 arrest formally announced may 1993 three month later tried sentenced two year imprisonment conclusion draft 1993 state department report human right china effect widespread abuse continue chinese government continues use repression maintain control population primarily state security force canberra time 13 january 1994 factor also relevance situation applicant engage political activity returned china regard frank honest seek exaggerate likelihood activity comment consistent low level participation pro democracy activity country however impress nonetheless man conviction reason educational background training experience firmly embraced intellectually emotionally principle espoused pro democracy movement view would find difficult suppress conviction return would probability find outlet would incur wrath authority unhcr handbook procedure criterion determining refugee status state even authority unaware asylum seeker political view prior departure due strength conviction however may reasonable assume opinion sooner later find expression applicant result come conflict authority reasonably assumed applicant considered fear persecution reason political opinion geneva 1992 para 82 parity reasoning person already expressed opinion would likewise fear adopt statement j c hathaway law refugee status p 150 since political expression core human right claimant must enjoy reasonable expectation tolerance peacefully articulated view therefore inappropriate simply discount risk harm ground claimant could avoid detection keeping silent right meaning substance must contemplate actual expression one view context claim refugee status unreasonable withhold grant status demanding individual suppress opinion reduce risk persecution consider approach consistent case chan supported decision woudneh v milgea federal court gray j unreported 16 september 1988 r v immigration appeal tribunal ex parte jonah 1985 imm r 7 hathaway go comment since purpose refugee law protect person abusive national authority reason exclude person could avoid risk refraining exercise inalienable right basis matter referred every reason believe dissent tolerated china consequential risk persecution high form detention punishment see people republic china trial punishment since 1989 amnesty international april 1991 find applicant made convention claim ground one claim advanced applicant seeking establish refugee status asserts prevented teaching return china permitted work academic implicitly contends discrimination degree constitute persecution within term convention irbdc december 1991 china country profile report fate returned intellectual depended greatly individual employer allowed return non teaching job university college others lost livelihood completely forced rely family support fang xiangshu paper comment academic criticised deng xiaoping regime especially handling demonstration would prevented teaching unless made full public retraction confession quote university president saying teacher maintain view allowed teach stated assurance chinese government 1991 2 returnees would prejudiced regard future employment reason past pro democracy activity qualified light find applicant relieved teaching duty sociology sensitivity teaching field institution taught eye authority find probable would engaged tertiary institution china teach area trained return recent case shanghai human right activist bao ge relieved teaching duty apparently connection pro democracy activist lends measure support conclusion see south china morning post 22 october fbi chi 93 203 issue whether discrimination amount persecution convention term dealt handbook basis case measure discrimination lead consequence substantially prejudicial nature person concerned e g serious restriction right earn livelihood hathaway argues persecution may established individual prevented securing employment work permitted access example grossly keeping qualification experience p 123 widely accepted sustained systematic denial right earn one living fundamental breach right work established article 23 universal declaration human right article 6 7 ot international covenant economic social cultural right although latter article contained convention progressive implementation establish right per se form persecution coerce abuse effectively imprisonment torture see hathaway p 121 denial right work one field case academic teacher constitutes serious restriction right earn livelihood circumstance applicant case denial amount discrimination sufficient degree constitute persecution convention standard seen combination risk otherwise face return china find reason set real chance applicant face persecution return china follows applicant subjective fear persecution reason political opinion well founded consequence applicant refugee term theact decisionthe applicant refugee term convention relating status refugee done geneva 28 july 1951 amended protocol relating status refugee done new york 31 january 1967 decision primary decision maker set aside application domestic protection temporary entry permit remitted reconsideration direction criterion requiring applicant non citizen determined refugee convention protocol 1 accordance 166ea themigration act1958
R v Vukovic [1999] VSC 225 (28 May 1999).txt	r v vukovic 1999 vsc 225 28 may 1999 last updated 31 march 2009supreme court victoriacriminal jurisdictionnot restrictedno 1466 98rvzuber vukovic judge eames jwhere held melbournedate arraignment 7 april 1999date plea 14 may 1999date sentence 28 may 1999media neutral citation 1999 vsc 225 crime intentionally causing serious injury plea guilty appearance counselsolicitorsfor crownmr j dickson qcsolicitor dppfor defencemr p caseyb nuredinimr justice eames28 may 1999sentencezuber vukovichis honour 1 zuber vukovic pleaded guilty charge intentionally causing serious injury andrew clifford taylor medical practitioner shot five time medical clinic 44 victoria street hastings 12 april 1997 custody since day task pas sentence offence 2 morning saturday 12 april 1997 tried make appointment regular practitioner dr rush also practised clinic told unavailable tried contact home told unavailable drove clinic taking unlicensed loaded handgun together additional magazine bullet 3 saturday morning time clinic operated emergency centre one doctor rostered work day know would doctor dr taylor although well known patient clinic attended 100 time previous eight year dr taylor dealt rarely five year known often treated son spoke briefly receptionist dr taylor entered reception area greeted friendly manner produced pistol announced depressed distance 10 foot commenced fire gun dr taylor thrown floor force bullet entering left leg fired two shot one hitting upper right leg one buttock dr taylor desperately tried shelter attack continued fire gun 4 dr taylor managed crawl away reception office hallway followed stood close shot dr taylor 5 last bullet entered left side dr taylor back reloaded gun inserting new magazine dr taylor said zuber killed please phone family say goodbye responded killed kill remember injury understand pain gone laid floor shot chest terrifying event took place front nurse reception desk clinic close proximity adult child patient adjoining waiting room seven expended bullet case found 6 time offence aged 45 year married man one teenage child prior conviction aged 47 year thus crime committed middle aged man previously unblemished record explanation appalling crime found deficiency personality character intellect also fact would inevitably suggest fact suffering mental illness time offence committed 7 necessary trace history gradual mental deterioration taken place prior commission offence 8 born raised yugoslavia albanian ancestry one four child poor farming family left school age 11 worked family farm joined navy age 17 remained service nine month migrated australia age 22 1974 upon arrival australia worked variety manual labouring job 1979 returned yugoslavia 18 month period married returned australia wife recommenced work smorgens paper mill working year prior departure australia 9 whilst employed smorgens mainly worked forklift driver also job factory 1982 slipped work concrete floor causing injury leg hip taken hospital discharged x ray conducted told nothing broken returned physiotherapy complained extreme pain seen orthopaedic surgeon diagnosed stretched ligament recommended rest referred rehabilitation centre sunshine attended two three time week month consulted solicitor brought proceeding employer 1986 proceeding concluded awarded lump sum payment way settlement sum 30 000 sum thought undervalued pain loss result 1982 injury work complained continuing lower back pain 10 settlement reached sickness benefit transferred invalid pension 1986 pension cancelled 1987 thereafter unemployment benefit sought work employer prepared employ light duty work year obtained light duty february 1989 obtained taxi driver licence within month obtaining licence involved serious car accident able work since time 11 accident 1989 passenger vehicle hit tree two relative killed accident wife son injured suffered broken pelvis broken rib punctured lung broken jaw hospital approximately three month continued frequent pain groin hip following accident also suffered stomach ulcer due stress relating litigation work injury car accident 12 motor vehicle accident produced litigation anxiety part legal process delay reaching settlement claim immediately accepted transport accident commission caused private investigator place surveillance surprisingly resented fuelled already pronounced sense hostility towards legal system medical profession motor vehicle accident claim finally settled august 1996 nearly seven year accident eight month offence committed delay doubt contributed fact became paranoid suspicious lawyer accusing acting interest changed lawyer many time course litigation 13 report presented court dated 23 september 1997 consultant psychiatrist dr william f glaser said opinion suffering gradually worsening depressive illness long period time prior offence condition aggravated precipitated event commencing back injury 1982 added injury sustained motor vehicle accident exacerbated protracted litigation stress related pain also suffered personal trauma year added difficulty brother young nephew killed car accident 1984 child another brother also died illness also 1992 brother law murdered 14 december 1995 psychiatrist dr george whar examined purpose accident claim diagnosed suffering anxiety state mild severity noted psychiatric treatment receiving consisted low dos anti depressant drug dr whar specifically recommended receive stated needed intensive treatment condition advice also given psychologist mr le thornton referred dr rush november 1995 15 mr thornton identified obsessional focus legal compensation system said displayed degree anxiety might indicate serious problem urged transport accident commission approve psychological treatment required letter dated 29 march 1996 mr thornton urged court proceeding concluded soon possible noting anxiety symptom increasing still mild diagnosed also suffering mild depressive disorder noted also personality disorder contributed difficulty mr thornton made representation tac authorised four counselling session conducted admission frankston hospital april 1996 mr thornton doubted effectiveness session whilst legal proceeding resolved 16 april 1996 panic attack taken ambulance frankston hospital held overnight upon discharge found home holding knife chest praying god result returned frankston hospital two week psychiatric treatment suffered continuing severe psychological symptom since time according dr glaser patient admission psychiatric facility followed appropriate community mental health service sunshine area 17 mr thornton practice mornington saw one occasion admission hospital letter tac dated 24 june 1996 mr thornton observed anxiety state become acute although counsel suggested tac failed authorise sufficient funding adequate provision psychiatric support possible determine whether apparent however treatment received insufficient need apart attendance mr thornton 1996 medication way mild anti depressant drug receive psychiatric psychological treatment dosage anti depressant drug low effective treatment psychiatric problem 18 impact litigation upon mental health confirmed dr kenneth byrne forensic psychologist whose report tendered counsel also clinical psychologist mr michael crewdson report mr crewdson also gave evidence 19 mr crewdson observed likely prior offence co operating psychiatric psychological treatment extent required time benefit hindsight apparent significant intervention required quite clear 1996 already use mr crewdson word tragedy waiting happen appropriate testing conducted time would disclosed indeed dr thornton apparently thought suicide risk time 20 dr byrne concluded time offence suffering moderately severe post traumatic stress disorder largely resulting motor vehicle accident also suffering severe depression condition aggravated chronic pain combination psychological illness pain would opinion compromised ability think clearly rationally provided decreased stress tolerance level 21 mr crewdson also concluded time offence person suffering gross impairment rational mental process paranoid personality disorder evaluation suffered major depressive disorder moderate severity remission also post traumatic stress disorder pain disorder relating psychological factor medical condition said adopted sick role time offence vulnerable individual alienated depressed desperate overwhelmed rage despair suicidal intention 22 told three consultant went clinic intending harm person intending shoot demonstrate world severe problem seeing dr taylor suddenly decided shoot might experience pain like suffering 23 making assessment relative importance explanation offence undoubted mental illness one hand personality intellectual deficiency concerned consultant opinion greater lesser extent readily accepted assertion intention harming person attended clinic 24 dr glaser concluded day offence resolved make public display sense frustration humiliation hurting anyone else killing front others matter chance came upon dr taylor sense grievance thus impulsive action turned sense anger outwards told dr glaser never intended kill doctor cause pain stopped shooting doctor cried pain 25 report dr byrne also accepted initial intention commit suicide clinic thus demonstrating dramatic way contention doctor failed appreciate degree suffering upon meeting dr taylor made spur moment decision shoot although report mr crewdson appeared adopt view maintain view gave evidence 26 8 year offence attended clinic 100 occasion seen dr taylor occasion told dr byrne dr glaser mr crewdson distrusted dr taylor year prior shooting believed antagonistic believed sick much pain claimed made offensive comment thus upon seeing dr taylor suddenly turned rage outwards 27 discount possibility disliked dr taylor reason advanced mean justification resentment dr taylor basis fact belief hostile towards might harbour unjustified belief would quite consistent paranoia feature mental condition paranoia various time also led suspect motif sympathy family friend legal adviser 28 reject suggestion went clinic sole purpose shooting specific antagonism towards dr taylor caused shot virtue sudden impulsive change plan part 29 whether originally intended commit suicide reached clinic decided course shot dr taylor need decide quite satisfied notwithstanding told consultant purpose attending armed solely commit suicide intended shoot medical practitioner misfortune present clinic upon arrival opinion evidence quite overwhelming arming taking much ammunition intended shoot medical practitioner day 30 fact demonstrate time offence dangerous man told dr byrne good shot intend kill dr taylor accept whilst intend kill dr taylor certainly intended cause serious injury action firing many shot might well caused death notwithstanding intention killed 31 turn consider question whether continue pose threat safety member community 32 self inflicted gunshot wound serious treatment alfred hospital st vincents admitted pentridge prison hospital 9 may 1997 remained early june 1997 made good recovery wound lung october 1997 transferred port phillip prison whilst prison received psychiatric treatment continue taking appropriate anti depressant medication pain killing tablet july 1997 specialist orthopaedic surgeon recommended degree degenerative disease hip necessitated hip replacement operation resisted acting advice june 1998 complained operation successful relieving pain indication personality problem continue rejected medical advice continuing use crutch risk causing long term damage 33 expert evidence made available agreement future risk might pose community 34 dr glaser concluded report mental state improved considerably whilst prison provided remain treatment especially taking appropriate level medication mental state remain stable treatment regime envisaged would comprise consultation medication family monitoring well psychiatric supervision opinion regime treatment maintained pose low risk offending 35 dr byrne express prognosis risk offending say remain highly vulnerable reacting impulsively stress observed much le stress simply confinement eliminates day day stress demand imposed 36 evidence mr crewdson confirmed received substantial benefit placed adequate level appropriate medication removed day day stress receiving psychological counselling accepted however underlying personality continuing mental health problem suggest given sufficient stress insufficient medication supervision significant risk could act violently future either towards others opinion released prison would require close monitoring 37 mr crewdson said appreciate need medication continue suffer major depressive disorder remission treatment addition mr crewdson said severe personality disorder continuing element vulnerability dependency paranoid thinking basic limited intelligence mean thinking always intuitive sensible co operation medication could assured without close supervision 38 agree opinion expressed mr crewdson certainly accept contention risk offending low 39 weapon used norinco 38 hand gun weapon told dr byrne 15 year fired couple occasion purpose traditional display wedding gun unlicensed gave different account dr glaser saying gun six year borrowed person knew local billiards club used activity shooting trip firing party 40 police attended house shooting search main bedroom disclosed imitation semi automatic pistol chest drawer wardrobe 22 shooting military type magazine lounge room police found pair handcuff hall cupboard 12 gauge pump action shotgun son room police found three throwing knife pouch unspecified location also located full face balaclava two shotgun rifle gun confiscated order made 41 subsequently told dr byrne shooting military magazine also full face balaclava pair handcuff found home property 15 year old son crown contend item fact unable say whether knew presence house prior offence indeed unable say necessarily knew seized weapon house 42 existence item therefore bear upon sentence mr crewdson agreed dr glaser monitoring mental health family friend important factor upon release ensuring mental health deteriorate dangerous level clear person access sort firearm weapon much obvious family friend remarkable friend family member removed gun weapon house pity none health professional contact apparently thought inquire whether possessed weapon insofar presence item might suggest home somewhat casual attitude weapon attitude would entirely inconsistent approach required future monitoring mental health 43 accept expressed genuine remorse harm victim interview police expressed concern well victim dr byrne dr glaser mr crewdson said interviewed expressed remorse harm caused doctor family plea guilty also expression remorse 44 prior conviction one son aged 15 married since 1979 support family friend 45 received victim impact statement dr taylor m kerrie coulson nurse present frightening event took place m coulson describes terror experience stated took long time comfortable working alone clinic m coulson described took strength courage shown dr taylor dealing impact shooting say getting life sought professional help 46 dr taylor shot five time one bullet passed soft tissue right upper thigh another right femur thigh bone breaking bone another left lower leg fracturing tibia another left side lower stomach coming rest inside body last bullet entered left shoulder blade area passed chest exited right shoulder front injury necessitated number operation dr taylor intensive care 21 april 1997 discharged alfred hospital mt eliza rehabilitation hospital 1 may 1997 47 dr taylor unable return full time work 9 month estimate total cost lost income expense order 120 000 claim compensation made dr taylor whether occur later time know dr taylor experienced range mental physical effect shooting longer participate many sporting activity endeavouring get life effect linger long time although courageously downplayed suffering apparent dr taylor suffered continues suffer profoundly result conduct 48 determining sentence impose question mental condition time offence future critical importance notwithstanding absence prior conviction previously unblemished record plea admitted responsible committing serious offence one done rage frustration done purpose seriously harming victim offence one would ordinarily call sentence expressed court denunciation conduct reflected need deter personally future offending also way example deter others community might minded engage similar conduct see r v laffey 1998 1 vr 142 49 considering question regard principle set full court r v anderson 1981 vicrp 17 1981 vr 155 court appeal r v tsiaras 1996 vicrp 26 1996 1 vr 398 appropriate approach sentencing person serious psychiatric illness amounting insanity also regard statement court appeal r v lewis unreported 20 april 1998 r v richards gregory 1998 2 vr 1 50 tsiaras p 400 court held psychiatric illness operates sentencing least five way first reduces moral culpability offence denunciation conduct le likely relevant consideration secondly treatment illness might bear upon type condition sentencing order may made thirdly sentencing person appropriate opportunity used purpose seeking deter member community committing offence fourthly person illness may mean difficult expect sentence imposed reduce risk offending person fifthly illness may mean severity sentence profound offender person suffering similar illness 51 insofar submitted factor concerning mental condition operate mitigation penalty offence obliged satisfy balance probability factor apply favour see r v storey 1998 1 vr 359 52 quite satisfied psychiatric psychological condition factor commission offence sentence must ameliorated reflect fact extent sentence might ameliorated vary case case anderson offender suffered paranoid schizophrenia evidence probably acting insane automatism time offence although defence insanity taken trial hand r v yaldiz 1998 2 vr 376the court appeal concerned person convicted attempted murder suffered severe post traumatic stress disorder uncommon condition one evidence interfered thought process offender caused delusional behaviour offender well aware wrong satisfied case also 53 judgment winneke acj yaldiz hampel aja agreed honour referred number decision including tsiaras anderson held 383
0902926 [2009] MRTA 1229 (3 July 2009).txt	0902926 2009 mrta 1229 3 july 2009 last updated 13 july 20090902926 2009 mrta 1229 3 july 2009 applicant mr chetan sharmamrt case number 0902926diac reference clf2008 158215tribunal member kira raifdate 3 july 2009place decision sydneydecision tribunal affirms decision cancel applicant subclass 573 higher education sector visa statement decision reasonsapplication reviewthis application review decision made delegate minister immigration citizenship cancel applicant subclass 573 higher education sector visa unders 116 1 b themigration act 1958 act department immigration citizenship granted applicant subclass 573 higher education sector visa 23 october 2007 applicant notified delegate minister considering cancelling subclass 573 visa decision cancel visa made 30 march 2009 applicant notified decision review right letter dated 30 march 2009 delegate cancelled applicant subclass 573 visa unders 116 1 b basis applicant breached condition 8202 breach due exceptional circumstance beyond control applicant applied tribunal 20 april 2009 review delegate decision tribunal find delegate decision mrt reviewable decision unders 338 3 act tribunal find applicant made valid application review unders 347of act relevant lawsection 116 1 b give minister power cancel visa visa holder complied condition visa relevantly state power cancel 1 subject subsection 2 3 minister may cancel visa satisfied b holder complied condition visa 3 minister may cancel visa subsection 1 minister must exist prescribed circumstance visa must cancelled regulation 2 43of themigration regulation 1994 regulation set prescribed circumstance referred in 116 3 student visa force 8 october 2005 r 2 43 2 relevantly provides 2 43 ground cancellation visa act s116 2 forsubsection 116 3 act circumstance minister must cancel visa b case student temporary class tu visa minister satisfied visa holder complied condition 8104 8105 condition applies visa ii minister satisfied visa holder complied condition 8202 b non compliance due exceptional circumstance beyond visa holder control effect ofs 116and r 2 43 2 b ii tribunal satisfied visa holder complied condition 8202 non compliance due exceptional circumstance beyond visa holder control itmustcancel visa term exceptional circumstance defined legislation however subject judicial interpretation context phrase exceptional circumstance beyond non citizen control appears 137l act section 137l 1 b concern application revoke automatic cancellation student visa breach condition 8202 expressed similar term r 2 43 2 b ii b inchen v mimia 2005 fca 229 2005 142 fcr 257lander j 111 considering operation 137 stated circumstance exceptional sense unusual applicant making beyond applicant control may provide reason minister revoking cancellation inwang v mimia 2005 fmca 918 walter fm also considered meaning exceptional circumstance context 137l referred approval comment kiefel j inhatcher v cohn 2004 fca 1548 2004 139 fcr 425 justice kiefel 49 stated e xceptional circumstance general term circumstance unusual ordinary term also one may wide operation factor affecting person set apart person comparable situation may amount exceptional circumstance word exceptionalcircumstances may apply variety circumstance definition limit application adopted unless application appears relevant statutory provision although comment case made context r 2 43 tribunal considers relevant issue presently respect breach condition 8202 occurring 1 july 2007 direction 38 guideline considering cancellation student visa non compliance student visa condition 8202 review cancellation decision considering revocation automatic cancellation student visa review decision revoke cancellation made pursuant 499 act also relevant document intended give decision maker primary review level direction performance power function 137l b act r 2 43 2 b ii b relation breach condition 8202 occurring 1 july 2007 direction 38 requires tribunal considering whether non compliance condition 8202 due exceptional circumstance beyond applicant control due regard following matter policy advice department director compliance operational support section give due regard political upheaval natural disaster particular country requires tribunal consider whether country applicant home country whether particular political upheaval natural disaster affected applicant ability comply condition 8202 written advice department education science training education provider concern error inappropriate action omission process leading non compliance subsequent reporting requires tribunal give due regard undertaking inquiry appropriate whether education provider failed accurately monitor applicant course progress attendance whether education provider failed give applicant access complaint handling appeal process required standard 8 national code 2007 consideration intended exhaustive rather tribunal required consider fact case total reaching conclusion breach condition 8202 occurred due exceptional circumstance beyond visa holder control prescribed circumstance visamustbe cancelled 116 3 exist absence prescribed circumstance leaf intact power 116 1 minister may cancel visa requires tribunal decide whether cancel visa regard circumstance condition 8202the applicant visa cancelled breach condition 8202 generally speaking relevant version condition 8202 version applicable time visa grant pradhan v mima 1999 fca 1240 1999 94 fcr 91at 19 however case breach condition 8202 occurred 1 july 2007 relevant version condition one force 1 july 2007 r 5 migration amendment regulation 2007 5 condition 8202 found item 8202 schedule 8 regulation relevant version condition 8202 applies case read follows 1 holder holder subclass 560 student visa ausaid student holder subclass 576 ausaid defence sector visa must meet requirement subclauses 2 3 2 holder meet requirement subclause holder enrolled registered course b case holder subclass 560 571 school sector visa secondary exchange student holder enrolled full time course study training 3 holder meet requirement subclause neither following applies education provider certified holder registered course undertaken holder achieving satisfactory course progress section 19of theeducation service overseas student act 2000 ii standard 10 national code practice registration authority provider education training overseas student 2007 b education provider certified holder registered course undertaken holder achieving satisfactory course attendance section 19of theeducation service overseas student act 2000 ii standard 11 national code practice registration authority provider education training overseas student 2007 4 case holder subclass 560 visa ausaid student holder subclass 576 ausaid defence sector visa holder enrolled full time course study training onus establishing fact may lead cancellation minister review tribunal although visa holder must invited show ground cancellation exist reason visa cancelled place onus visa holder rebut possible ground cancellation identified seezhao v mimia 2000 fca 1235at 25 32 claim evidencethe tribunal department file relating applicant tribunal also regard material referred delegate decision material available range source applicant granted student visa 20 september 2007 first entered australia holder visa 3 october 2007 23 october 2007 applicant granted student visa visa subject condition 8202 14 november 2008 applicant education provider insearch ltd trading insearch ut insearch certified applicant diploma business commerce course achieving satisfactory course progress 19 educational service overseas student act 2000 theesos act standard 10 national code practice registration authority provider education training overseas student day applicant issued notice 20 esos act applicant attended office diac 3 december 2008 given notice intention consider cancellation noicc 116 act noicc referred certification insearch invited applicant comment ground cancellation give reason visa cancelled noicc included copy direction 38 explanation concerning document may provided part written response noicc applicant replied 10 december 2008 provided statement stated admitted package course arranged agent get proper course outline agent put 100 concentration diploma course failed study grandfather died learned death failed affectionate applicant applicant fond grandfather grandfather sudden death applicant failure education put applicant gruesome situation applicant enrolled subject put best effort pas failed lost interest course situation created lot pressure tried get released course granted release letter told see course advisor others end informed approach diac college sent letter received unbearable situation found solace part time job working assistant chef find hospitality industry interesting give opportunity stress tension daily life requested another opportunity study area interest 30 march 2009 delegate decided cancel visa held applicant delegate found breach occurred due exceptional circumstance beyond applicant control applicant sought review delegate decision 20 april 2009 provided application various document including information problem address evidence enrolment holmes institute diploma hospitality bachelor business evidence study india ielts result academic transcript insearch ut material applicant representative also provided submission outlined applicant circumstance noting applicant enrolled packaged course advanced diploma business commerce bachelor business ut commenced diploma october 2007 enrolled 5 10 subject good academic record high school good ielts result able enrol fast track option successfully completed first semester passing 5 subject enrolled next 5 subject end february 2008 told family grandfather died 4 february 2008 told earlier study became upset attached grandfather previously lost grandfather father kidnapped youngest family sibling married settled family news grandfather death put lot mental stress applicant despite managed pas 3 5 subject enrolled second semester result came may 2008 applicant enrolled third semester remaining two subject putting even stress financial pressure still recovered shock grandfather death lost interest course never failed subject life failed two subject due loss interest course mental distress grandfather death despite fee paid studied ut year decided leave course uncompleted found difficult concentrate november 2008 asked release letter told october 2008 intention report letter sent copy letter given received letter due problem postal address applicant told already reported diac given opportunity appeal decision issued 20 notice noicc diac applicant education agent migration agent wrote response behalf applicant told problem solved applicant working hospitality industry since arrival australia agent suggested enrol hospitality management course applicant arranged noicc subsequently reissued applicant visa cancelled applicant also made submission regarding exceptional circumstance state always genuine student good academic result despite new study environment maintained 100 result first semester insearch lost one closest family member enrolling second semester academic progress declined despite attended class passed 3 5 subject undertook trying comply visa condition maintaining enrolment course receive letter insearch lost opportunity appeal also suffered incompetent immigration advice enrolled new course maintains 100 academic performance passed subject submitted exceptional circumstance beyond control 18 may 2009 tribunal wrote education provider seeking information concerning applicant study attendance education provider replied 28 may 2009 insearch informed tribunal applicant enrolled diploma business commerce two semester course 10 subject october 2007 june 2008 three semester period period passed 8 subject failed two repeated two failed subject third semester failed made unsatisfactory course progress second third semester february 2008 june 2008 failing four seven subject undertook failing achieve required average mark progress 50 achieved average 42 second semester 23 third insearch advised based applicant record interview academic advisor evidence illness misadventure account applicant unsatisfactory progress except unable plan manage time appropriately perhaps financial difficulty stated insearch done best counsel assist warn applicant respect course progress made accurate decision based insearch rule diac regulation intention report letter sent applicant 3 october 2008 given period internal appeal 7 november 2008 applicant appeal education provider enclosed copy applicant academic transcript various correspondence relating applicant academic progress 1 june 2009 tribunal wrote applicant pursuant 359a act inviting comment response information tribunal considered may reason part reason affirming decision review tribunal referred certification course provider relevant may indicate non compliance condition 8202 tribunal referred information provided insearch ut concerning academic progress said relevant may indicate breach found due exceptional circumstance beyond applicant control tribunal requested applicant pursuant 359 2 provide payslip information relating discretionary consideration applicant replied 9 june 2009 enclosed copy grandfather death certificate evidence relationship grandfather police report newspaper article relating missing father 1 july 2009 provided report relating father disappearance 2003 also provided statement vse international stating applicant working since july 2008 present average 15 20 hour week theapplicant appeared tribunal 1 july 2009 give evidence present argument tribunal also received oral evidence applicant sister applicant represented relation review registered migration agent oral evidence tribunal summarised applicant said since arriving australia undertook diploma business commerce completed eight ten subject given advanced standing undertaking hospitality course started january 2009 completed one semester course 100 attendance finish course march 2010 applicant said completed one semester insearch beginning second semester found grandfather death completed five subject next semester difficulty course loss interest could give proper attention course depression applicant said past good student scored good mark never failed subject father missing since 2003 small information father deep shock heard grandfather death close deeply shocked could study well tried study never failed first failed two subject felt embarrassed guilty attachment family member could study well failed two subject tried subject failed spent lot money two semester waste money parent kept failing job hospitality interest area decided change hospitality 100 attendance completed subject tribunal asked applicant grandfather death affected study applicant said living india spent time grandfather grandfather old age strong living parent since childhood close grandfather good moment past miss parent new country everything new also miss father missing since 2003 well grandfather family told death end first semester want affect study tribunal asked applicant grandfather death affected unable study applicant said close relationship fond grandfather never seen paternal grandfather close maternal grandfather also financial problem grandfather death significant effect planned return india spend time grandfather death gone mind could concentrate subject tribunal asked applicant able concentrate subject pas three subject five semester applicant said first semester passed subject found grandfather death continued attend college continued whatever used tried push hard two subject subject required concentration depression mind could study constantly thinking family suffering depression tribunal asked applicant whether saw medical practitioner whether diagnosed depression prescribed medication applicant said said nobody australia hard find good friend could talk friend tribunal asked see doctor applicant said country would go see doctor alone thinking matter could forget nobody told see doctor think doctor would help seen medical practitioner father gone everything family good afterwards everyone family depressed would share anyone told mother would suffer even tribunal noted evidence applicant depression medical sense word medical analysis diagnosis evidence condition applicant said even past one could see depressed stressed suffered acne black circle eye problem saw doctor told due stress depression tribunal asked applicant mentioned problem university applicant said failed two subject thought could try achieve goal enrolled two subject without telling anyone failing could suffer introverted express others tried finish course without telling anyone depression enrol another course ut tribunal noted odd would mention depression grandfather death university counsellor given contact counsellor given main reason poor academic progress applicant said know could counsel help even friend tell could see counsellor tribunal noted see counsellor university note suggest poor time management skill made reference grandfather death depression applicant said told family suffering depression could concentrate study told concentrate study try pas subject return india family member advise quite young time tribunal asked applicant provided grandfather death certificate ut delegate applicant said failed subject asked release letter normally release letter could given six month studying went see consultant migration agent told would try get release letter approached insearch told sent letter received problem postal address respond letter education provider told approach diac could provide information week received 20 notice agent told big problem agent wrote letter signed behalf tribunal asked applicant provided grandfather death certificate either ut diac applicant said approached student advisor told go diac could longer anything already reported tribunal pointed approached student advisor reported end 2008 kept failing since early 2008 almost year provide document education provider applicant said nobody asked nobody cared failing discus matter tribunal noted nobody could asked death certificate know grandfather death applicant said tried pas subject agent told get release letter everything fine agent give proper advice tribunal noted basic common sense failing subject due grandfather death depression disclosed education provider applicant said new country know proceduresthe tribunal noted concerned provided evidence throughout 2008 failed two subject delegate tribunal noted concerned whether claim genuine whether applicant honest effect grandfather death study applicant said agent advised provide evidence approached diac took letter tell evidence required diac took several month make decision made decision already changed course mind given reason diac everything okay receive response diac agent told continue studying receive response diac everything going smoothly delegate ask evidence applicant said really certificate could provided asked tribunal asked applicant able concentrate three subject passed two despite grandfather death depression applicant said hat already done accounting india familiar took accounting course skill knew could subject easily depression passed three subject easily could make effort two subject studied full time eight hour day took hour two get home would study whole night time rest study whole night tired studying full time could hour study night thing kept popping mind could concentrate two subject failed accounting finance passed management english statistic tribunal asked applicant failed accounting prior experience accounting india said first semester well could scored high mark hard settle new country know anybody mark high expected second semester wanted better subject harder harder pressure tribunal noted appeared failed found subject difficult reason applicant said concentrate subject tribunal pointed able concentrate three subject applicant said first semester passed subject second semester passed two subject appealed third subject given pas showed receive good mark three subject passing failing struggling subjectsthe tribunal asked applicant able get depression grandfather death applicant said agent told continue studying involved hospitality industry thought could well hospitality course relevant work tribunal asked applicant got grandfather death depression applicant said main reason sister came australia able support advise failed accounting wanted try instead running away course failed showed interest changed hospitality happy thing going smoothly everything good manager happy good prospect tribunal noted applicant claim end 2008 could well depression grandfather death early 2009 able well another course applicant said last course finished late 2008 early 2009 started new course month think focus life wanted also consulted many agent two three month time think tribunal asked got depression grandfather death two three month think future applicant agreed tribunal asked applicant whether break second third semester insearch said week break time started job july first failed two subject working hospitality failed already good job considering whether carry accounting course spent lot money failed second time lot time two three month think future tribunal asked applicant able concentrate job unable concentrate study applicant said came australia october got job july eight month later pay rent school fee wanted independent parent tribunal asked applicant able concentrate work study said hard find job thought want lose job wanted work hard lose job gave 100 job tribunal asked applicant able put 100 job fear losing 100 study applicant said got job failed subject felt needed focus got job failed thought change course put 100 job task job similar class good interest subject tribunal pointed got job july 2008 still ut asked able job concentrate study applicant said enrolled last semester two subject time spare job enough time full time student attended two subject enough time job tribunal asked applicant reason affected academic performance applicant said main reason grandfather another reason friend fake friend nobody helping friend would interested getting money tribunal asked applicant affected study said grandfather could concentrate also lack family member tried get job pay pocket expense lack job affected ask money parent felt guilty job secondary factor student visa main focus study work main problem depression job matter much family could support expense time would take complete course problem felt something stay home said reason tribunal asked applicant whether father missing effect study said different relationship father mother suddenly father gone missing could feel mother voice also depression mother already lost husband nobody know happened left country cannot support mother mother thinking father would feel voice would tell missed made embarrassed sad away mother needed sibling youngest one family attached others family sister married gone live husband mother alone tribunal asked applicant affected said three thing affected depression grandfather death job big problem depression mother depression looking forward going back said returned india since coming australia chance applicant said given chance could well profession tribunal took evidence applicant sister said brother good student chose wrong subject wanted shift hospitality course well attending well given another chance described concern student agent advised applicant said came australia april 2008 grandfather died february 2008 mother told applicant death within week youngest family affectionate father grandfather upset grandfather passed away also constantly worried mother also misguided agent issue postal address receive letter would responded spent lot money always good student another chance tribunal noted applicant referred family support sister australia since april applicant said time sister living husband child living together supported little told subject good student support tried subject finding reasonsthe tribunal must first determine whether ground cancellation 116 identified delegate made applicant visa cancelled basis failure comply condition visa 116 1 b relevant condition identified delegate condition 8202 following reason tribunal find applicant complied condition 8202 3 condition 8202 3 force 1 july 2007 specifies visa holder meet course progress requirement unless education provider certified holder registered course undertaken holder achieving satisfactory course progress 19 esos act standard 10 national code 14 november 2008 applicant education provider insearch ut certified applicant diploma business commerce achieving satisfactory course progress 19 esos act 2000 standard 10 national code accordingly tribunal find education provider certified applicant achieved satisfactory course progress 19 esos act standard 10 national code 2007 tribunal find applicant breached condition 8202 3 tribunal due regard matter set direction 38 deciding whether non compliance condition 8202 due exceptional circumstance beyond applicant control nothing tribunal indicate upheaval natural disaster india affected applicant ability comply condition 8202 written advice tribunal dest deewr education provider indicating concern error inappropriate action omission process leading non compliance subsequent reporting tribunal considered material provided education provider concerning record keeping including applicant academic transcript tribunal satisfied basis material education provider failed accurately monitor applicant course progression applicant claim received notice intention report education provider reason lost opportunity appeal however applicant state notice may received due problem mail box due error education provider tribunal satisfied education provider failed give applicant access complaint handling appeal process required standard 8 national code 2007 applicant stated three main reason poor academic progress claim primarily upset depressed death grandfather learned february 2008 result found difficult concentrate study applicant stated suffered depression affected course progression reason follow tribunal accept claim applicant made reference grandfather death communication academic advisor insearch informed tribunal basis applicant record interview academic advisor evidence illness misadventure account applicant unsatisfactory academic progress inability manage time appropriately possibly financial difficulty applicant refer grandfather death letter delegate done well applicant experienced problem academic performance applicant argues young family advise however tribunal consider informing education provider death relative death affect student performance requires great degree maturity advice others applicant argues introverted wish discus problem also reason see doctor despite claim suffering depression however tribunal view despite applicant claimed reluctance discus situation others would least referred grandfather death effect study including depression dealing student advisor given claim main reason poor academic progress tribunal also mindful fact applicant able pas three five subject undertook second third semester insearch found grandfather death applicant explained stating familiar accounting subject india also subject difficult explain tribunal depression inability concentrate affected performance subject others applicant also claimed well three subject passing failing however concede passed three five subject neither applicant able explain satisfaction tribunal since july 2008 period undertaking subject able concentrate work study asked explain applicant referred desire work hospitality keep good job able find july 2008 tribunal accepts applicant keen maintain job may enjoyed working hospitality industry explains applicant eager put 100 job explain appears applicant selective ability concentrate work enjoyed subject undertaking lost interest applicant also unable explain satisfaction tribunal able get depression grandfather death late 2008 failed two subject accounting course early 2009 claim well hospitality course maintain 100 attendance applicant stated received support sister however also stated sister arrived australia well third semester insearch also stated time two course think future unclear tribunal would allowed applicant overcome depression grandfather death applicant evidence support tribunal view applicant lack interest diploma business commerce course affected course progress factor combination reason applicant failure refer grandfather death effect dealing student advisor ability pas subject others ability concentrate job cause tribunal find applicant failure two subject resulting certification academic progress unsatisfactory result upset depressed death grandfather applicant claim reason affected study related financial circumstance applicant stated family able afford study australia felt guilty relying mother wanted find job stated minor issue great effect study tribunal accepts nothing tribunal suggest applicant unable pay tuition living expense affected study rather applicant claim wanted find job reliant family tribunal accept affected applicant ability study contributed unsatisfactory course progress tribunal also consider exceptional circumstance beyond applicant control applicant stated father disappearance also effect mother depressed missed needed support clear tribunal affected applicant study significantly affected applicant study second third semester subject able perform well academically first semester soon leaving mother tribunal accept disappearance applicant father 2003 mother resultant depression affected applicant academic progression applicant referred difficulty experienced advisor fact receive mail education provider losing opportunity appeal given release letter insearch tribunal accepts submission however accept matter affected applicant study contributed unsatisfactory course progress considered applicant claim singularly cumulatively tribunal find breach due exceptional circumstance beyond applicant control reason given tribunal satisfied applicant complied condition 8202 ground cancellation s116 1 b therefore exists tribunal satisfied non compliance due exceptional circumstance beyond applicant control accordance 116 3 act circumstance prescribed circumstance visa must cancelled decisionthe tribunal affirms decision cancel applicant subclass 573 higher education sector visa kira raifmember
BOASE -v- AXIS INTERNATIONAL MANAGEMENT PTY LTD [No 3] [2012] WASC 498 (18 December 2012).txt	boase v axis international management pty ltd 3 2012 wasc 498 18 december 2012 last updated 20 december 2012jurisdiction supreme court western australiain chamberscitation boase v axis international management pty ltd 3 2012 wasc 498coram beech jheard papersdelivered 18 december 2012file civ 1709 2008between boase j l boase atf boase super fundfirst plaintiffst boase j l boase atf boase family trustsecond plaintiffsandaxis international management pty ltdfirst defendantsagecorp security pty ltd liq second defendantquentin phillip doherty wardthird defendantmorgan alteruthemeyer commercial lawyer migration agentsseventh defendantcatchwords practice procedure subpoena document whether inspection document permitted transcript examination whether objected passage apparently relevant turn factslegislation nilresult ruling made objection inspectioncategory brepresentation counsel first plaintiff appearancesecond plaintiff appearancefirst defendant appearancesecond defendant appearancethird defendant appearanceseventh defendant appearancesolicitors first plaintiff personsecond plaintiff personfirst defendant appearancesecond defendant appearancethird defendant personseventh defendant jackson mcdonaldcase referred judgment beech j introduction1the third defendant mr ward object inspection plaintiff certain portion transcript mr ward examination produced subpoena australian security investment commission asic 2it convenient begin background explain issue arose background3by chamber summons 3 september 2012 plaintiff sought leave issue subpoena two party one asic 4the application came court 24 september 2012 day ordered plaintiff serve proposed subpoena recipient application leave issue subpoena relevant document also ordered proposed subpoena recipient objected application file serve notice objection ground objection 5mr ward filed objection plaintiff proposed subpoena asic 6on 25 october 2012 ordered 1 26 october 2012 plaintiff issue subpoena asic production transcript asic examination mr ward various date together related book examination returnable 22 november 2012 2 15 november 2012 subpoena recipient party sufficient interest objecting party inspecting copying document produced subpoena set ground objection supporting material 7on 22 november 2012 ordered 10 december 2012 mr ward file serve schedule setting specificity part document produced asic object inspected ground also ordered question inspection document produced asic determined paper hearing 22 november 2012 subsequent email communication associate mr boase behalf plaintiff indicated propose make submission response objection made mr ward consequently determine objection paper basis 8on 10 december 2012 mr ward produced schedule part transcript inspection objected ground 9i turn principle relevant determining mr ward objection inspection plaintiff principle governing inspection subpoenaed documents10the first question whether document passage objection taken apparent relevance litigation 11apparent relevance low threshold question whether appears party issuing subpoena could could probably tender document evidence enough establish apparent relevance document class document give rise line enquiry relevant issue trier fact including purpose meeting opposing case way cross examination apache northwest pty ltdv western power corporation 1998 19 war 350 374 stanley v layne christensen co 2004 wasca 50 9 commonwealth australia v albany port authority 2006 wasca 185 18 12in advance trial determination whether document relevant difficult one national employer mutual general association ltd v waind 1978 1 nswlr 372 385 apache northwest pty ltd 373 13in determining relevance difficulty assessing relevance prior trial must taken account necessity document order fairly dispose issue trial might well become apparent trial apache northwest pty ltd 374 376 379 stanley v layne christensen co 9 commonwealth australia v albany port authority 18 14ultimately relevance document produced question determination trial appropriate court embark detailed preliminary enquiry involving evidence party seeking issue subpoena recipient subpoena apache northwest pty ltd 379 15documents inspected whether admissible form waind 385 apache northwest pty ltd 372 16one object rule permitting early return subpoena appraise party strength weakness case early stage proceeding accordingly narrow view taken legitimate purpose subpoena apparent relevance stanley v layne christensen co 9 commonwealth australia v albany port authority 18 17the determination whether inspection permitted document produced subpoena separate question whether grant leave issue subpoena waind 381 apache northwest pty ltd 371 stanley v layne christensen co 11 13 18further question inspection distinct question whether document may tendered trial waind 381 apache northwest pty ltd 371 test different many document might meet apparent relevance threshold inspection fall well short sufficiently relevant admissible trial 19if document apparently relevant inspection usually permitted even though admissible stand party seeking document undertaken tender use crossexamination waind 385 apache northwest pty ltd 373 374 20confidentiality ground refuse inspection apparently relevant document end public interest administration justice prevails interest confidentiality information apache northwest pty ltd 379 mobil oil australia ltd v guina development pty ltd 1996 vicrp 54 1996 2 vr 34 38 however confidentiality taken account together assessment extent document apparent relevance exercise discretion whether permit inspection apache northwest pty ltd 380 381 21the principle case flow management object 1 r 4 b therules supreme court 1971 wa must kept mind exercise discretion whether permit inspection wookey v quigley 5 2011 wasc 275 35 22as pleading inform apparently relevant case outline allegation statement claim plaintiff allegations23in broad outline statement claim plaintiff allege mr ward second defendant sagecorp security pty ltd sagecorp holder australian financial service licence b mr ward authorised representative sagecorp proper authority holder company c corporate counsel firepower holding group ltd fhg obtained legal advice sale share held individual british virgin island company interview asic mr ward admitted aware advice e june july 2006 mr mr boase communication mr ward possible investment share fhg f following meeting earlier july 2006 26 july 2006 plaintiff purchased 275 000 share fhg 1 33 per share g plaintiff purchased share reliance number representation made mr ward see par 18 21 h among representation one effect share worth price 1 33 ii mr ward representative sagecorp mr ward knew known fhg share worthless would become third defendant conduct word conveyed representation pleaded par 23 including fhg approved product advanced promoted sagecorp fhg listed aim stock exchange london september october 2006 j representation false made breach third defendant duty care k consequence plaintiff suffered loss damage 24the statement claim also pleads claim seventh defendant necessary detail claim disposition objections25i make following general observation 26almost mr ward objection ground relevance respect important bear mind principle governing inspection set earlier reason low threshold apparent relevance explained 27there may scope plaintiff tender part transcript examination mr ward evidence mr ward see 76of theaustralian security investment commission act 2001 cth importantly potential use transcript said transcript may give rise line inquiry may potential use crossexamination meet mr ward case answer plaintiff case 28mr ward put general objection inspection part transcript contain information refer detail event date plaintiff investment firepower 26 july 2006 mr ward asserts information event date investment bearing plaintiff decision invest 29mr ward contention reflects unduly narrow view issue arise pleading plaintiff decision invest firepower share issue example issue relating representation said made mr ward whether reasonable ground finding matter capable influenced information event occurred 26 july 2006 even though question relate position time representation made 30moreover mr ward contention also reflects unduly narrow notion relevance purpose question inspection document produced subpoena information event 26 july 2006 may lead line inquiry relation proof making disputed representation whether misleading character 31for reason reject mr ward contention statement transcript relating event information 26 july 2006 account irrelevant 32my ruling relation passage transcript objection taken set annexure ruling course based upon reading consideration objected material apart ruling column rest annexure mr ward schedule objection ground 33in ruling annexure reference whether something relevant reference apparent relevance sense explained case referred conclusion34for reason including contained annexure rule objection inspection accordance set annexure 35the result ruling order made 22 november 2012 plaintiff leave 10 day following decision attend court inspect copy part document question court determined may inspected 36it important emphasise ruling permit inspection part transcript say nothing whether part transcript might sufficiently relevant admitted evidence trial explained earlier reason two question test applied different examination 1pagelinereasonruling1424 48banking detail business ward family trust etc irrelevant pleading redacted relevant 15 17all181 181819 40sale superannuation fund management business irrelevant pleading plaintiff client business redacted relevant 235 35earnings remuneration personal financial strategy 2003 onwards irrelevant pleading plaintiff client personal financial strategiesobjection overruled sufficiently relevant 2612 44suspension qp ward licence sagecorp december 2006 outside timeframe irrelevant pleadingsobjection overruled sufficiently relevant 2731 48number client irrelevant pleadingsobjection overruled sufficiently relevant 281 193626 33 part 34irrelevant pleadingsredacted relevant 3640 45meeting john finnin outside time frame irrelevant pleadingsobjection overruled sufficiently relevant 37 38all391 25pagelinereasonruling3939 47pursuit financials finnin johnston anderson 2007 outside time frame irrelevant pleadingsobjection overruled sufficiently relevant 401 214046 48411 48421 174219 46discussion 2005 2006 financial account firepower asic 2007 outside time frame irrelevant pleadingsobjection overruled sufficiently relevant 431 48441 2461 134636 47numbers client total dollar amount invested firepower investor irrelevant pleadingsobjection overruled sufficiently relevant 471 215428 46sale self managed superannuation fund business outside time frame irrelevant pleading plaintiff client businessobjection overruled sufficiently relevant notwithstanding apparently general subject objected part p 18 consider material relevant 551 205611 47document headed firepower performance technology better planet outside time frame irrelevant pleadingsobjection overruled sufficiently relevant 5938 48discussion production record asic ward office staff outside time frame irrelevant pleading redacted relevant 601 8pagelinereasonruling645 48discussion sagecorp breach notification relating mr stephen coote sophisticated investor outside time frame irrelevant pleadingsobjection overruled sufficiently relevant 651 166530 4866 681 48691 26929 44december 2006 outside time frame suspension breach ward irrelevant pleadingsobjection overruled sufficiently relevant 709 34 part 35december 2006 firepower investor meeting outside time frame irrelevant pleadingredacted relevant 711 12provision list firepower investor january 2007 outside time frame irrelevant pleadingsredacted relevant 7633 48morgan alteruthemeyer letter asic february 2007 outside time frame irrelevant pleadingsobjection overruled sufficiently relevant 771 45examination 2pagelinereasonruling1012 48december 2006 firepower investor meeting detail outside time frame irrelevant pleadingsobjection overruled sufficiently relevant 111 46pagelinereasonruling186 39contents email dated 16thfeb 2007 outside time frame irrelevant current pleadingsredacted relevant2628 48asic barcode p00306138email dated 13 october 2006 lawrence berkhout kim stokheld concerning investor list investment total outside time frame irrelevant current pleadingsobjection overruled sufficiently relevant 271 48281 48291 422944 46total commission earnt axis international management irrelevant plaintiff pleadingsobjection overruled sufficiently relevant 321 48asic barcode p00306116discussion email conwell stockheld 7 january 2007 secondary market outside time frame irrelevant pleadingsredacted relevant331 83310 46firepower meeting december 2006 discussion secondary market tim johnston outside time frame irrelevant current pleadingsobjection overruled sufficiently relevant 3944 47asic barcode p00306117email dated 18 january 2007 kim stokheld ward discussing investor enquiry ward replyasic barcode p00306125 outside time frame irrelevant current pleadingsobjection overruled sufficiently relevant 401 48411 31pagelinereasonruling4133 48gary conwell email sent stokheld 25 jan 2007asic barcode p00306118discussion investor enquiry handled outside time frame irrelevant current pleading objection overruled sufficiently relevant 421 16434 21 part 22email dated 30thjanuary 2007asic barcode p00306120from stokheld conwell johnston huston sale firepower share outside time frame irrelevant current pleadingsredacted relevant 4417 30 part 31asic barcode p00306128email ward finnin 9thfebruary 2007 discussing share sale request certain investor outside time frame irrelevant current pleadingsredacted relevant 4431 46asic enquiry ward applying new afsl 2007 outside time frame irrelevant current pleadingsobjection overruled sufficiently relevant 451 48461 164616 48asic barcode p00306126email dated 14 march 2007 taylor investor stokheld sale share outside time frame irrelevant current pleadingsobjection overruled sufficiently relevant 471 184738 47asic barcode p00306146email dated 15 march 2007 vince vallelonga stokheld regarding interested party buying selling share outside time frame irrelevant current pleading objection overruled sufficiently relevant examination 3pagelinereasonruling431 48the purchase firepower share member ward family ward family business entity ward family superannuation fund confidential information irrelevant current pleadingsobjection overruled sufficiently relevant confidentiality must bow interest relevant document available litigation 441 4447 46price paid firepower share ward family member ward business entity irrelevant current pleading confidential informationobjection overruled sufficiently relevant confidentiality must bow interest relevant document available litigation 451 47461 164640 48discussion listing fhg firepopwer holding group 2007 discussion audited financial account asic outside time frame irrelevant current pleading objection overruled sufficiently relevant 471 48481 20examination 4pagelinereasonruling433 28discussion bank nomura 2007 outside time frame irrelevant current pleadingsobjection overruled sufficiently relevant 441 28451 28546 29discussion sagecorp breach regarding mr stephen coote sophisticated investor outside time frame irrelevant current pleadingsobjection overruled sufficiently relevant 551 28561 26pagelinereasonruling5627 29december 2006 outside time frame suspension breach relevant current pleadingsobjection overruled sufficiently relevant 571 28581 18681 28the content email dated 16thfebruary wilkinson finnin johnston relevant current pleading fall outside time frame redacted relevant 976 28the sale self managed superannuation fund administration business q prosperity irrelevant current pleading fall outside time frame redacted relevant page 98 line 1 13 redacted ground 12422 28email dated 13 october 2006 berkhout stokheld concerning investor list outside time frame irrelevant current pleadingsobjection overruled sufficiently relevant examination 5pagelinereasonruling1106 28contains assertion others evidence fact ward none relevant matter dispute mr boaseobjection overruled sufficiently relevant 111 1291 281301 21
Christodoulou v Tunstall Square Fruit & Vegetables Pty Ltd (Ruling No. 1) [2010] VCC 1563 (11 November 2010).txt	county court victoria 250 william street melbourne undefined bookmark county court victoria revised restricted melbourne civil division damage compensation general division case ci 10 01179 maria christodoulou plaintiff v tunstall square fruit vegetable pty ltd defendant judge honour judge neill held melbourne date hearing 9 10 11 november 2010 date ruling 11 november 2010 case may cited christodoulou v tunstall square fruit vegetable pty ltd ruling 1 medium neutral citation 2010 vcc 1563 ruling catchword civil personal injury jury tria l admissibility doc ument discovered application adjournment enable document used evidence new trial prejudice plaintiff efficient use court resource application refused appearance counsel solicitor plaintiff mr j b richards sc m p r riddell zaparas lawyer defendant mr p scanlon qc m h donmez thompson lawyer vcc 1 ruling 1 christodoulou v tunstall square fruit vegetable pty ltd honour 1 course civil jury trial issue arose admissibility computer printout document 11 vember 2010 ruled document inadmissible 2 consequence mr scanlon beh alf defendant sought adjournment trial listed heard befor e judge jury enable document properly di scovered used course trial 3 plaintiff brings proceeding eeking damage injury sustained right shoulder course employment defendant alleges injury occurred period time 2004 particular 16 january 2008 course lifting large watermelon part duty cashier fruit vegetable shop suffered significant pain right shoulder subsequent vestigation revealed damage underlying structure right shoulder particular supraspinatus tendon 4 course evidence relating circumstance surrounding incident 16 january 2008 1 plaintiff described part duty required reach heavy item fruit veget ables including watermelon cashier counter store lift onto scale bag box taken customer described incident 16 january 2008 serving couple large order fruit vegetable order took considerable space upon bench front described bench full item vegetable fruit couple come 2 watermelon end bench away habit weighed packed 1 transcript 60 2 t60 l29 vcc 2 ruling 1 christodoulou v tunstall square fruit vegetable pty ltd heavier item first lift watermelon bench full item onto scale process alleges suffered significant pain right shoulder 5 trial commenced 9 novemb er 2010 morning 11 november 2010 partway plaintiff cross examination mr richards provided mr scanl document described printout computer cash register used plaintiff time suffered pain shoulder 16 january 2008 printout document said could properly dentified computer record item purchased couple th e time document recorded instead many item purchas ed customer fact four item admitted evidence content pr intout could cast doubt whether necessary fo r plaintiff lift watermelon large number em fruit vegetable bench manner described 6 accepted mr scanlon document ought discovered document signi ficance assessment credibility plaintiff relevant issue liability explanation given doc ument discovered advised accept came possession solicitor defendant time 10 november 2010 mr scanlon indicated enquiry made propriet or defendant company plaintiff evidence number item purchased document produced response 7 given failure defendant discover document late production ruled document c ould admitted evidence could evidence led content 3 3 ruling 11 november 2010 vcc 3 ruling 1 christodoulou v tunstall square fruit vegetable pty ltd 8 consequent upon ruling mr scanlon ap plied trial adjourned leave granted defendant file serve affidavit document disclosing printout fo r matter listed hearing fresh trial bef ore judge jury 9 submission mr scanlon said following accepted document discoverable ought part defendant affidavit document b submitted document signi ficant defendant case said plaintiff affidavit suppor application leave bring proceeding pursuant 134ab accident compensation act4 provide detail number item wh ich plaintiff required lift watermelon time onset pain 5 circumstance said enquiry defendant made plaintiff given evidence c apparently earlier attempt ade obtain printout relevant computer investigator attempt unsuccessful submitted requiring th e defendant proceed position rely upon printout matter significant prejudice defendant unfair circumstance e justice circumstance coul achieved adjournment proceeding enable plaintiff give evidence afresh issue 10 answer question mr sc anlon conceded defendant 4 paragraph 9 affidavit plaintiff sworn 24 june 2009 5 requirement however worker disclose detail evidence relied upon liability trial course application serious injury affidavit support generally describing circumstance injury concerned injury consequence injury vcc 4 ruling 1 christodoulou v tunstall square fruit vegetable pty ltd propose use plaintiff evidence trial cross examine subsequent trial event gave different evidence point number item bench front time incident 11 mr richards opposed application adjournment ground situation brought failure defendant abide rule discovery permit new trial would create substantial prejudice evidence trial could used basis cross examinati subsequent trial b reason decision aon risk service australia ltd v australian national university aon 6 tinworth v w v management pty ltd anor 7 court must consider wider public interest efficient use court resource de ciding whether grant application result adjournment 12 first issue nature significa nce printout subject application issue discoverable ought discovered accept submission mr scanlon document significance issue liability defendant seek rely upon trial previous ruling trial permitted mr scanlon cross examine affidavit plaint iff husband sworn filed support application leav e bring proceeding accident compensation act 8 ruling stated truth evidence plaintiff issue liability depend upon c ontents otherwise husband affidavit pr inciple must apply regard printout however pr esented document counsel instructing solicitor advis ing plaintiff would opportunity conference consider content printout ask plaintiff 6 2009 hca 27 7 2009 vsc 552 8 ruling 11 november 2010 vcc 5 ruling 1 christodoulou v tunstall square fruit vegetable pty ltd response content plaint iff might said document incorrect inaccurate may take view belief number item upon counter time mistaken take position presence document would offe r counsel opportunity know defendant would say issue prepare case knowledge wo uld opportunity put plaintiff course examinati chief response expected evidence defendant issue would ha opportunity respond front jury re ponse could significant effect upon way jury would determine whet accept evidence whatever plaintiff response counsel would position know come issue defendant camp structure case even subtly accordingly impact evidence upon jury could subst antial way matter accommodated experienced counsel signific ant impact determination issue jury 13 plaintiff left position given evidence chief trial cross examined couns el subsequent trial without initial trial knowing stance defendant issue disclosure printout accept submission mr richards significant disadvantage subsequent trial 14 argued whether printout disclosed course exchange material prescribed 134ab 8 accident compensation act 1985 document inadmissible subsequent trial 9 15 although argued discr etion s135 evidence act 2008 section provides 9 134ab 11 accident compensation act 1985 vcc 6 ruling 1 christodoulou v tunstall square fruit vegetable pty ltd court may refuse admit evidence probative value substantially outweighed danger evidence might unfairly prejudicial party 16 view printout manner timing use trial probative would create un fair prejudice plai ntiff prejudice reason given would substantially outweigh probative value 17 tinworth 10 forrest j considering application amend pleading referred princi ples established aon honour said 11 aon high court set principle applied application amend pleading late stage proceeding disavowed statement principle contained court previous decision queensland v jl holding pty ltd 12 held follows court must consider wider public interest efficient use limited court resource deciding whether grant application amend pleading b party entitlement raise arguable case stage proceeding subject payment cost c amendment produce del ay impact entire court system affect party desirous utilising particular court system particular court said joint judgment 13 application leave amend pleading approached basis party entitled raise arguable claim subject payment cost way compensation entitlement matter relevant exercise power permit amendment weighed fact substantial delay wasted cost concern case management assume importance application leave amend statement j l holding suggest limited application case management rest upon principle carefully worked significant succession case party right bring proceeding party choice claim made framed limit placed upon ability effect change pleading particularly litigation advanced seeking resolution dispute reference made 10 supra 11 paragraph 27 12 1997 189 clr 146 13 paragraph 111 113 vcc 7 ruling 1 christodoulou v tunstall square fruit vegetable pty ltd party sufficient opportunity identify issue seek agitate past left largely party prepare trial seek court assistance required time long gone allocation power litigant court arises tradition principle policy recognised court resolution dispute serf public whole merely party proceeding emphasis added given importance attached court decision jl holding following statement french cj significance 14 might thought truism case management principle supplant objective justice party according law accepting proposition j l holding cannot taken authority view waste public resource undue delay concomitant strain uncertainty imposed litigant taken account exercise interlocutory discretion kind conferred r 502 also considered potential loss public confidence legal system arises court seen accede application made without adequate explanation justification whether adjournment amendment giving rise adjournment vacation fixed trial date resulting resetting interlocutory process emphasis added point taken joint judgment 15 may amendment sought requires account taken litigant party proceeding question statement consistent said sali v spc reflected proper understanding case management statement j l holding reflect understanding consistent said sali v spc say case management principle applied extreme circumstance refuse amendment implies consideration delay cost never important raising arguable case denies wider effect delay upon others important aspect approach taken plurality j l holding proceeded upon assumption party permitted amend raise arguable issue subject payment cost occasioned amendment stated suggests party something approaching right amendment case right spoken cropper v smith need understood context case rule required amendment permit determination matter already issue accurate say party right invoke jurisdiction power court order seek resolution dispute 14 paragraph 30 15 paragraph 95 vcc 8 ruling 1 christodoulou v tunstall square fruit vegetable pty ltd subject right amend without leave given party rule court question amendment party claim dependent upon exercise court discretionary power judgment heydon j aon honour cited approval portion judgment bryson j honour noted merited preservation oblivion unreported judgment context case worth citing part judgment think law requires discretion allow amendment exercised entire innocence understanding obvious impact forbearance liberality behaviour litigant diminished incentive thinking due time tell court opponent full true position forbearance liberality extended delinquent burden inconvenience lost opportunity preparation tends fall heavily without adequate repair party delinquent relative disadvantage imposed proceed methodically due time interest procedural justice claim least much consideration interest applicant late amendment look far creator difficulty 18 true aon tinsworth concerned application amend pleading consequent need adjournment delay caused application aon far substantial view however principle established case apposite present case adjourn proceeding three da y trial would cause significant delay refix ed hearing enquir y made associate registry court indicate jury trial length could listed even priority august 2011 would considerable cost one parti e depending upon cost order may make delay would trickledown effect upon litigant waiting court list every day court fifteen twenty case listed civ il reserve list pressure upon court considerable backlog case awaiting trial adjourn trial would mean would loss three day already taken could well used det ermining another case 19 three issue considered determining whether grant vcc 9 ruling 1 christodoulou v tunstall square fruit vegetable pty ltd adjournment fir allowing defendant rely upon document deems significant upon issue li ability second prejudicial effect upon plaintiff trial third efficient use court time resource 20 considering issue vi ew application adjournment brought fail ure defendant make proper discovery timely manner accepting ubmissions defendant document significant aspect ca se view trial adjourned bearing mi nd prejudice plai ntiff loss time resource court 21 defendant application adjournment refused 22 determining appropriate manner trial proceed bear mind order 47 02 3 county court civil procedure rule 2008 state notwithstanding signification paragraph 1 court may direct trial without jury opinion proceeding circumstance tried jury 23 seems concern defend ant use printout could accommodated matter proceeding bef ore cause would permit document u ed plaintiff cross examined content bear mind assessing evidence circumstance timing document came court evidence 24 williams civil pr ocedure victoria following said relation order 47 16 rule 47 02 3 confers general overriding discretion exercisable interest proper efficient administration justice see wilson v burridge 1955 vlr 433 435 rule remedial designed give c ourt procedural flexibility 16 paragraph 47 02 30 vcc 10 ruling 1 christodoulou v tunstall square fruit vegetable pty ltd appropriate situation produce beneficial consequence given full scope natural ordinary meaning word support pezzimenti v seamer 1995 2 vr 32 38 per brooking j referring patton v buchanan borehole colliery pty ltd 1993 178 clr 14 17 state victoria v psaila bc 9907905 1999 vsca 193 notwithstanding defendant signified desire trial jury accordance para 1 trial judge objection defendant heard determined proceeding without jury found plaintiff court appeal held judge error dispensing jury set aside judgment plaintiff ordered retrial jury 25 view provision order 47 02 3 confer upon court wide discretion circum stance court may dispense jury restricted case evidence deemed complex lengthy issue law num erous jury would position determine neither mode trial bef ore judge sitting alone judge jury inherently 17 26 view justice could achieved trial contin uing cause however bear mind principle party entitled trial jury signified mode trial desired deprived entitlement unless good cause shown circumstance seems appropriate offer defendant option matter proceeding present jury intaining sanction relation printout document may tendered evidence content used course evi dence alternatively defendant may elect proceeding continued cause allowing document tendered evidence use made content circumstance would bear mind circumstance timing document came notice plaintiff court 27 making ruling bear mind provision civil procedure act 17 gerlach v clifton brick pty ltd 2002 188 alr 353 356 vcc 11 ruling 1 christodoulou v tunstall square fruit vegetable pty ltd 2010 act take effect 1 january 2011 nonetheless clear intention par liament provide court wide power relation efficient management dispatch civil proceeding event proceeding adjourned anothe r date 1 january 2011 would subject provision act particular section 55 56 refer discovery section 56 provides wide sanction court appropriate failure comply discovery obligation sanction include preventing party taking step civil proceeding e prohibiting limiting use document evidence j dismissing part claim defence party responsible conduct referred subsection 1 failure comply discovery obligation 28 clear intention propos ed legislation court wide power relation management civil proceeding particularly respect discovery 29 stated application defendant adjournment refused give party time consider option proposed ruling
Dovgal, Ksenia [2003] MRTA 5198 (21 July 2003).txt	dovgal ksenia 2003 mrta 5198 21 july 2003 last updated 23 september 2003 2003 mrta 5198catchwords visa cancellation bridging cancellation section 109 act non compliance section 103 act bogus document cancellation discretionaryreview applicant m ksenia dovgaltribunal migration review tribunalpresiding member maritsa eftimioumrt case number n03 03918dept case number clf2003 24923date decision 21 july 2003at sydneydecision tribunal set aside decision review cancel review applicant bridging class wa visa substitute decision visa cancelled statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural indigenous affair delegate 6 june 2003 cancel bridging class wa visa held m ksenia dovgal review applicant national russian federation born 10 september 1984 delegate decision cancel visa made themigration act 1958 act jurisdiction standing2 review applicant lodged valid application review tribunal 10 june 2003 decision reviewable tribunal application review validly made person standing apply review legislation policy3 section 338 4 b provides review decision cancel bridging visa person detention cancellation limit 7 working day review case 4 reviewing cancellation decision tribunal generally restricts considering ground cancellation raised delegate also examines procedure followed delegate cancelling visa ensure requirement set act met 5 reaching decision review tribunal bound act various regulation written direction issued minister undersection 499of act matter may subject policy found publication procedure advice manual 3 pam3 migration series instruction msis produced department immigration multicultural indigenous affair department policy guideline observed inconsistent legislation cogent reason application 6 tribunal power affirm vary set aside decision cancel visa tribunal set aside decision cancel visa effect visa never cancelled even ground cancellation established visa would otherwise expired outcome visa longer current particular consequence cancellation longer apply e g restriction applying another visa 7 legislation policy material immediately relevant review legislation section 97 103 107 108and109of act regulation 2 41of regulation policy migration series instruction msi 340 visa cancellation undersections 109 116 128and140 issued 18 october 20018 tribunal generally regard regulation stood time visa cancellation however subsequent amendment may apply circumstance 9 power cancel visa based incorrect information set subdivision c division 3 ofpart 2of act inregulation 2 41of regulation case delegate cancelled review applicant visa basis provided bogus document department relation student visa cancellation relevant part legislation set section 97 interpretation97 subdivision bogus document relation person mean document minister reasonably suspect document purport issued respect person b counterfeit altered person authority c obtained false misleading statement whether made knowingly section 103 bogus document given103 non citizen must give officer minister tribunal performing function purpose act bogus document cause document given 10 act set procedure cancelling visa minister considers visa holder complied section 103 among requirement notice particular possible non compliance may given visa holder may give minister written response notice section 107 minister consider response given visa holder decide whether non compliance visa holder way described notice section 108 11 section 109 set relevant cancellation power state section 109 cancellation visa information incorrect109 1 minister deciding section 108 non compliance holder visa b considering response notice non compliance given way required paragraph 107 1 b c regard prescribed circumstance may cancel visa 2 minister may cancel visa subsection 1 minister must exist circumstance declared regulation circumstance visa must cancelled 12 prescribed circumstance cancellation visa referred paragraph 109 1 c act set regulation 2 41 regulation read time visa cancelled follows 2 41 purpose paragraph 109 1 c act following circumstance prescribed correct information b content genuine document c likely effect decision grant visa immigration clear visa holder correct information genuine document circumstance non compliance occurred e present circumstance visa holder f subsequent behaviour visa holder concerning obligation subdivision c division 3 part 2 act g instance non compliance visa holder known minister h time elapsed since non compliance j breach law since non compliance seriousness breach k contribution made holder community 13 relevant policy set msi 340 policy make matter raised regulation 2 41 primary consideration matter raised review applicant secondary consideration tribunal observe policy guideline extent relevant review applicant case issues14 summary issue tribunal review review applicant comply section 103 act review applicant give officer department bogus document non compliance section 103 appropriate review applicant bridging class wa visa cancelled correct preferable decision relevant circumstance case considering issue tribunal must regard regulation 2 41 msi 340 evidence15 tribunal following document mrt case file n03 03918 departmental case file clf2003 24923 16 review applicant entered australia 4 february 2001 subclass 560 student temporary visa valid 18 april 2001 17 review applicant granted another subclass 560 visa 18 april 2001 valid 30 march 2003 applicant departed australia 1 january 2002 entered 29 january 2002 18 28 march 2003 review applicant applied subclass 573 higher education sector temporary visa granted bridging visa date associated application 19 part process determining student visa application review applicant required undertake health examination health service australia hsa provide result department 20 health service australia letter sent department dated 6 may 2003 advises 2 form provided review applicant department completed hsa sydney medical adviser recorded form 26 perform medical sign form doctor name used unauthorised manner forge document relevant point radiologist stated form known stated address surry hill relevant hsa stamp document 21 6 june 2003 review applicant located residence transferred dimia office interview 22 review applicant issued notice intention cancel undersection 109of themigration act 1958 notice state applicant may complied withsection 103of act state non citizen must give officer bogus document cause document given applicant requested provide written answer visa cancelled 23 review applicant responded notice writing applicant stated studying australia since february 2001 many reference testify intention relation medical form stated fellow student wrongly advised medical form could completed place hsa previously applied visa united arab emirate able provide certificate number different medical facility thought would australia paid medical trust abused form invalid hear department started doubt medical valid approached hsa undertook medical examination demonstrates attempt misguide department misguided 24 state living alone tried contact case officer left department trying attain skill enable work country parent rely completing degree australia genuine student trustworthy already gained 2 diploma australia good result volunteered charity work made friend australia considers australia home aware serious consequence listening another student could would listened wish complete study australia feel misguided ensure nothing like happen 25 notice cancellation unders109of act issued review applicant 6 june 2003 notice issued basis review applicant complied withsection 103of act notice state health service australia hsa advised 6 may 2003 medical form 26 160 review applicant provided completed doctor completed person authority accordingly review applicant subclass 010 visa cancelled 6 june 26 review applicant detained pursuant tosection 189of act unlawful non citizen transferred villawood immigration detention centre 27 post detention interview held 10 june 2003 review applicant stated provided current address came australia february 2001 student visa valid 30 march 2003 passport driver licence lodged department worked modelling january one day permission work asset australia computer household good cash bank outstanding student visa application department cannot depart australia finish course belonging australia visa cancelled incorrectly tribunal affirms visa cancellation decision depart australia voluntarily 28 review applicant applied tribunal review bridging visa cancellation 10 june 2003 lodging application applicant stated aware form must completed hsa doctor intend mislead department intention providing bogus document support student visa application 29 11 june 2003 applicant applied bridging e visa basis pending review tribunal 13 june 2003 applicant lodged requested security 7 000 granted bridging e visa 30 12 june 2003 department refused applicant subclass 573 higher education sector visa application date application review refusal received tribunal 31 tribunal held hearing 19 june 2003 review applicant gave evidence 32 review applicant confirmed immigration history set elsewhere decision 33 review applicant confirmed attended office department march 2003 lodged application student visa review applicant given one month complete hand medical examination form review applicant state fellow student advised could undertake medical examination address surrey hill would cost 120 review applicant made appointment doctor completed medical paid fee 120 review applicant state started become concerned hear back doctor made appointment hsa undertook medical 16 may 2003 review applicant paid 190 examination hsa provided deffered opinion protein urine 34 review applicant told tribunal aware permitted attend medical practitioner complete hsa form paid money good faith undertook medical aware providing bogus document tribunal 35 review applicant stated visa cancelled would suffer hardship would able complete study told tribunal left russia ten year old would find difficult return baccalaureate would recognised russia speak russian would sit exam accepted university russia fear would able continue study also would able reside mother united arab emeritus 18 year age would granted visa dependent mother father living kuwait would granted student visa kuwait hearing review applicant provided tribunal opinion medical officer commonwealth meet health requirement proposed duration stay australia finding reasons36 tribunal finding based information contained department file tribunal file well evidence provided hearing 37 tribunal satisfied delegate case followed procedure set act cancelling visa undersection 109 ground cancellation38 matter tribunal decision cancel review applicant visa decision made exercise power cancel visa undersection 109of act 39 considering whether exercise discretion cancel applicant visa tribunal regard matter identified policy guideline contained msi referred particular purpose visa holder travel stay australia extent non compliance condition degree hardship may caused visa holder family member circumstance ground cancellation arose person behaviour relation department previous occasion matter visa holder raise 40 stated tribunal must firstly determine whether review applicant failed comply withsection 103of act providing officer department bogus document 41 dispute review applicant gave department 2 form form 26 160 completed medical officer hsa review applicant stated letter department aware medical examination must completed hsa applicant stated suspected problem medical attended hsa medical examination completed 42 evidence tribunal review applicant stated attended medical office address surrey hill advice fellow student paid 120 undertook medical examination aware requirement department attend office hsa undertake medical examination 43 tribunal considers relevant part definition bogus document n case paragraph b read counterfeit altered person authority term counterfeit defined legislation macquaire dictionary 3rded defines meaning counterfeit including 1 made imitate pas something else genuine 2 pretend 44 regardless whether review applicant aware attend office hsa complete medical tribunal find medical certificate review applicant provided department document genuine purported hsa certificate completed hsa doctor tribunal therefore find counterfeit document 45 medical adviser recorded form 26 perform medical sign form doctor name used unauthorised manner forge document tribunal therefore satisfied medical certificate provided review applicant department bogus document undersection 98of act tribunal find review applicant presented bogus document officer department comply withsection 103 tribunal therefore satisfied undersection 108 compliance review applicant way described notice intention cancel issued discretion cancel46 tribunal must exercise discretion determine whether review applicant bridging class wa visa cancelled considering whether exercise discretion cancel tribunal regard circumstance prescribed inregulation 2 41and policy guideline contained msi 340 tribunal make following finding correct information content genuine document review applicant provided tribunal completed hsa medical indicates review applicant meet health requirement proposed duration stay sought australia likely effect decision grant visa immigration clear visa holder correct information genuine documentthe tribunal aware whether review applicant meet criterion grant student visa however health criterion outstanding criterion review applicant would eligible grant visa meet health criterion circumstance non compliance occurredthe review applicant issued notice intention cancel student visa providing bogus document officer department review applicant obtained bogus document place hsa review applicant state aware form 26 form 160 must completed hsa review applicant state attended doctor office good faith paid 120 medical tribunal accept review applicant evidence hearing aware form 26 form 160 must completed health service australia tribunal mind review applicant action obtaining bogus document mitigated fact prior receiving notice intention cancel student visa review applicant attended office hsa completed medical examination present circumstance visa holderthe tribunal satisfied review applicant would face considerable hardship visa cancelled review applicant currently studying bachelor art bachelor commerce university sydney commenced march 2003 due end december 2007 review applicant given evidence visa cancelled would able continue study russia would find third country recommence study subsequent behaviour visa holder concerning obligation subdivision c division 3 ofpart 2of actthe department decision record state review applicant behaviour co operative tribunal place weight evidence review applicant attended office hsa issued notice intention cancel visa undertook medical instance non compliance visa holder known ministerthere evidence tribunal non compliance past time elapsed since non compliancethe review applicant presented bogus document department sometime may 2003 non compliance came light department advised hsa completed medical form review applicant admitted non compliance interview breach law since non compliance seriousness breachesthere adverse information tribunal contribution made holder communitythe applicant stated completed volunteer work community able provide personal reference support application review applicant provided information tribunal relation matter matter visa holder raisesthe review applicant raised relevant matter 47 balancing factor tribunal satisfied reason cancelling visa outweigh reason cancelling visa tribunal found review applicant committed breach immigration law causing bogus document given officer department review applicant stated aware hsa place could undergo medical examination tribunal placed considerable weight evidence review applicant attended office hsa prior issued notice intention cancel visa underwent medical examination medical officer commonwealth stated review applicant satisfies health criterion tribunal conclude review applicant naivety financial concern caused obtain document tribunal note review applicant paid 50 le required fee non hsa doctor review applicant co operative department appears information tribunal making satisfactory academic progress 48 tribunal therefore satisfied appropriate case exercise discretion cancel visa tribunal find reason cancelling visa outweigh reason cancelling visa review applicant visa cancelled case decision49 tribunal set aside decision review cancel review applicant bridging class wa visa substitute decision visa cancelled
N98_23592 [1999] RRTA 1610 (1 July 1999).txt	n98 23592 1999 rrta 1610 1 july 1999 refugee review tribunaldecision reason decisionapplicant applicant rrt reference n98 23592rrt case norrt case nocountry reference chinacountry country tribunal member giles shortdate decision 1 july 1999place sydneydecision tribunal affirms decision grant protection visa backgroundthis review decision made delegate minister immigration multicultural affair refusing application applicant protection visa applicant notified decision application review lodged tribunal satisfied tribunal jurisdiction review decision applicant citizen people republic china arrived australia applied protection visa issue arise case validity application review tribunal jurisdiction review delegate decision legislative frameworkin accordance withsection 65of themigration act 1958 minister may grant visa minister satisfied criterion prescribed visa act migration regulation satisfied subsection 36 2 act provides criterion protection visa applicant visa non citizen australia australia protection obligation refugee convention amended refugee protocol subsection 5 1 act defines refugee convention purpose act convention relating status refugee done geneva 28 july 1951 refugee protocol protocol relating status refugee done new york 31 january 1967 australia party convention protocol therefore generally speaking protection obligation person defined refugee purpose international instrument article 1a 2 convention amended protocol defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return time definition must satisfied date decision application minister immigration ethnic affair v singh 1997 142 alr 191 definition contains four key element first applicant must outside country nationality secondly applicant must fear persecution every threat harm person interference right reason race religion nationality membership particular social group political opinion constitutes persecuted chan yee kin v minister immigration ethnic affair 1989 hca 62 1989 169 clr 379per mchugh j 429 convention necessarily contemplates real chance applicant suffer serious punishment penalty significant detriment disadvantage return chanper mason cj 388 threat life liberty one convention reason inevitably amount persecution chanper dawson j 399 gaudron j 416 denial fundamental right freedom otherwise enjoyed national country concerned measure disregard human dignity may appropriate case amount persecution chanper mason cj 388 mchugh j 430 notion persecution involves selective harassment chanper mason cj 388 mchugh j 429 however necessary harassment directed applicant refugee status individual applicant may persecuted member group subject harassment chanper mchugh j 429 likewise threat need product government policy enough government person country nationality unable unwilling prevent harm occurring chanper mchugh j 430 applicant v minister immigration ethnic affair 1997 142 alr 331 per brennan cj 334 mchugh j 354 thirdly applicant must fear persecution reason race religion nationality membership particular social group political opinion victim persecution refugee persecution must inflicted one reason set convention however remembered person may persecuted attribute opinion ascribed seechanper mason cj 390 gaudron j 416 mchugh j 433 fourthly applicant must well founded fear persecution one convention reason dawson j said inchanat 396 element contains subjective objective requirement must state mind fear persecuted basis well founded fear whilst must fear persecuted must mind must sufficient foundation fear fear well founded real chance person persecuted one convention reason return country nationality chanper mason cj 389 dawson j 398 toohey j 407 mchugh j 429 fear well founded sense even though possibility persecution occurring well 50 per cent fear well founded purpose convention unless evidence indicates real ground believing applicant refugee status risk persecution fear persecution well founded merely assumed mere speculation minister immigration ethnic affair v guo 1997 144 alr 567 per brennan cj dawson toohey gaudron mchugh gummow jj 577 evidencein accordance withsection 418of themigration act tribunal given department file 98 001298 relating applicant applicant appeared tribunal give oral evidence tribunal assisted interpreter mandarin language applicant represented migration agent statement accompanying original application applicant said joined religious sect said met regularly studied said chinese government ordered church register sect officially acknowledged chinese government said founded house church home participant arrested public security bureau psb applicant said released paying heavy fine psb obtained visa departed china eventually coming australia applicant said participated underground religious activity could persecuted attempting overthrow chinese government returned china way background applicant claim constitution people republic china provides freedom religious belief practice chinese government imposes restriction religious practice outside officially recognised government controlled religious institution australian department foreign affair trade dfat cable bj46678 dated 21 june 1991 cx44 applicant advised decision review australian department foreign affair trade confirmed religion applicant claim belong currently registered chinese authority indeed banned communist party came power 1949 however department also advised adherent religion would face remote chance persecuted return china unless intended practise religious belief way authority considered anti government hearing applicant said assistance interpreter prepared original application department immigration protection visa answer application basically correct said wanted add relative involved sect sentenced prison term time cultural revolution died prison applicant said consequence seen relative another relative also persecuted cultural revolution applicant said joined sect activity rather limited since come australia found sect said sect china put information available new sect separate sect source information sect deleted unders 431of themigration act applicant said belief asked applicant whether statement accompanying original application read back said asked statement prepared said representative written said wording decided representative said told representative joined sect australia applicant said also wanted add joined political party mentioned representative either china remains one party state dissident attempted register new political party applicant given long prison term source document deleted unders 431of themigration act asked applicant whether taken part religious activity joined religious sect applicant said asked made decide join sect would older applicant said child mother told sect grown always wanted seek put nevertheless evidence joined older applicant said parent wanted second generation involved strict time chance seek chance older got opportunity suggested basis answer would fair say religion important part life applicant said busy work time time wanted seek asked applicant would say essential element religion said believed heaven human one everybody believed kindness helping people would benefit reincarnation let everybody world know kindness everybody would brotherhood loyalty faith virtue innocence shame put applicant reincarnation buddhist belief asked distinguished religion buddhism applicant said close buddhism asked applicant religious activity taken part said worshipped buddha god regularly chinese government believed conspiring overthrow government applicant said detained regular gathering held house asked many people would gather house occasion stated number asked happened arrested said questioned said told worshipping buddha told religious sect banned accused conspiring overthrow government later family collected money bailed asked ever charged offence said bailed surveillance asked meant said neighbourhood committee paid attention people going home able hold gathering home police come home see statue god still monitoring put applicant according original application continued working company working left china applicant said worked company year prior leaving china asked would say following year application said come australia year obtained visa previous year asked applied visa year applicant said obtained visa able leave china arrested leave monitoring taken opportunity time loosened monitoring flee china asked applicant applied visa exit china problem said government already paying attention sect member arrested relative died prison scared might something obtained visa asked relative died prison said young age asked whether saying applied visa exit china relative died prison young applicant said ten year would ten year older asked applicant whether involved political activity china applicant said really shouted slogan time june 4th pro democracy movement supported student movement applied visa sect member arrested scared would arrested asked whether saying sect member arrested prior time applied visa got around arresting applicant said two member arrested authority got address monitored said known neighbour told police come neighbourhood asked applicant left immediately obtained visa said leave told paying attention said however thought would big trouble caught leaving referred applicant evidence joining political party asked aim party applicant said aim overthrow chinese communist party set rule party would real democracy china corruption china asked anything else said asked knew party claimed joined said joined activity mainly discussing current situation put applicant information available chinese government generally permitted small group 10 20 person gather worship privately home u state department bureau democracy human right labor china profile asylum claim country condition 14 april 1998 part iii section b claim based religion applicant said normally smaller number people gathered home sometimes would would 20 put applicant appeared said chinese government permitted group 30 people meet would said 30 people met home applicant said sometimes would 30 put applicant saying implausible would got trouble sort gathering home applicant said trouble member arrested knew sect banned put sect banned officially recognised government permitted unofficial group meet house u state department bureau democracy human right labor china profile asylum claim country condition 14 april 1998 part iii section b claim based religion applicant said permission limited people would allowed noted applicant apparently left china legally travelling passport name put australian department foreign affair trade advised given usual stringency border checking china improbable people wanted list would able exit travelling passport name dfat cable bj15671 dated 12 february 1998 cx27863 applicant said wanted list put suggested would problem return china applicant said would surveillance left already come home look asked conclude true regard fact left china without apparent problem applicant reiterated left time alert put regard claimed involvement 1989 pro democracy movement fact retained employment able obtain passport able leave china suggested interest authority dfatcountry profile china third edition june 1994 paragraph 3 5 5 1 3 5 5 3 applicant said company working collective enterprise time chinese government strict enterprise put applicant even accept claim joined political party claimed information available chinese government concerned return dissident already degree public influence recognition left overseas dfat cable bj12641 dated 10 july 1996 cx17723 bj1879 dated 1 june 1993 cx1372 given sum total involvement political activity china shouting slogan time 1989 pro democracy movement believe would attract attention authority return china reasonably foreseeable future applicant said believe problem finding reason decisioni find applicant credible witness consider answer number people supposedly gathered home demonstrated prepared tailor evidence perceived advantage initially said small number people gathered home however put chinese authority generally permitted small group 10 20 person gather worship privately home u state department bureau democracy human right labor china profile asylum claim country condition 14 april 1998 part iii section b claim based religion said normally small number people gathered home sometimes would would 20 put applicant appeared said chinese government permitted group 30 people meet would said 30 people met home applicant said sometimes would 30 applicant vague essential element religious sect activity said taken part would fit within mainstream buddhist belief china indeed applicant described sect close buddhism although also said belief sect joined australia syncretistic faith put applicant accept plausible would got trouble authority china small gathering worshipper home claim chinese government generally permit small group 10 20 person gather worship privately home u state department bureau democracy human right labor china profile asylum claim country condition 14 april 1998 part iii section b claim based religion accept applicant subsequent claim gathering sometimes larger comprising 20 even 30 people indicated consider applicant evidence regard self serving accept applicant placed surveillance following arrest member group arrested accused conspiring overthrow government surveillance time left country indicated applicant given usual stringency border checking china accept would able leave china travelling passport name indeed surveillance time claim dfat cable bj15671 dated 12 february 1998 cx27863 way response applicant said able leave china wanted list taken advantage time loosened monitoring flee china however applicant sufficiently important authority place surveillance claim although state never charged offence prefer advice australian department foreign affair trade improbable would able leave china travelling passport name dfat cable bj15671 dated 12 february 1998 cx27863 regard view formed applicant credibility accept claim joined political party applicant vague regard aim party claim deep involvement political activity china past activity limited shouting slogan time pro democracy movement 1989 furthermore even accept applicant joined party would accept event would result adverse attention authority return china reasonably foreseeable future true member party given long prison term put applicant information available suggests chinese government concerned return dissident already degree public influence recognition left overseas source document deleted unders 431of themigration act since applicant stated evidence really involved political activity prior departure china apart shouting slogan supporting student time 1989 pro democracy movement consider said sort public influence recognition would result attracting attention authority reason membership political party return china considered totality applicant circumstance adherent religious sect claimed member political party however even taking account cumulative effect circumstance satisfied applicant well founded fear persecuted convention reason return china follows person australia protection obligation refugee convention amended refugee protocol consequently applicant satisfy criterion set insubsection 36 2 themigration actfor grant protection visa decisionthe tribunal affirms decision grant protection visa giles short
Denlay v Commissioner of Taxation (No 2) [2011] FCA 1093 (17 June 2011).txt	denlay v commissioner taxation 2 2011 fca 1093 17 june 2011 last updated 22 september 2011federal court australiadenlay v commissioner taxation 2 2011 fca 1093citation denlay v commissioner taxation 2 2011 fca 1093parties kevin vincent denlay v commissioner taxationmirja helena denlay v commissioner taxationfile number qud 151 2009qud 152 2009judge logan jdate judgment 17 june 2011catchwords evidence hearsay rule exception business record whether document met requirement in 69 2 theevidence act 1995 cth document obtained employee institution without permission institution employee knowledge record keeping system document significant detail concerning applicant activity identity document met requirement ofs 69of theevidence act 1995 cth document admissibleevidence admissibility improperly illegally obtained evidence whether document illegally obtained manner document obtained contrary liechtenstein australian law duty confidence relevant factor respondent party manner document obtained document illegally obtained respondent document admissiblelegislation evidence act 1995 cth s 69 138 income tax assessment act 1936 cth s 166 263 264intelligence service act 2001 cth case cited denlay v commissioner taxation 2010 fca 1434 2010 276 alr 675citeddenlay v commissioner taxation 2011 fcafc 63citedpearce v button 1985 8 fcr 388consideredsmorgon v australian new zealand banking group ltd commissioner taxation v smorgon 1976 hca 50 1976 134 clr 470considereddate hearing 17 june 2011place brisbanedivision general divisioncategory catchwordsnumber paragraph 28counsel applicant mr g ngsolicitor applicant nyst lawyerscounsel respondent mr wigney sc mr p looneysolicitor respondent australian government solicitorin federal court australiaqueensland district registrygeneral divisionqud 151 2009between kevin vincent denlayapplicantand commissioner taxationrespondentjudge logan jdate order 17 june 2011where made brisbanethe court order objection receipt evidence mr kieber including exhibit affidavit related translation evidence receipt evidence assistant commissioner neill ruled note entry order dealt rule 39 32 federal court rule 2011in federal court australiaqueensland district registrygeneral divisionqud 152 2009between mirja helena denlayapplicantand commissioner taxationrespondentjudge logan jdate order 17 june 2011where made brisbanethe court order objection receipt evidence mr kieber including exhibit affidavit related translation evidence receipt evidence assistant commissioner neill ruled note entry order dealt rule 39 32 federal court rule 2011in federal court australiaqueensland district registrygeneral divisionqud 151 2009between kevin vincent denlayapplicantand commissioner taxationrespondentin federal court australiaqueensland district registrygeneral divisionqud 152 2009between mirja helena denlayapplicantand commissioner taxationrespondentjudge logan jdate 17 june 2011place brisbanereasons judgmentthe applicant taxpayer via counsel taken objection respect receipt evidence mr kieber including regard exhibit affidavit one might term evidence consequential upon mr kieber evidence namely translation document apparently emanated shall refer lgt group dealt one aspect objection separate reason judgment reason associated foundation objection necessarily published party legal representative remaining ground objection arise 69 ands 138of theevidence act 1995 cth evidence act first respect ofs 69 section 69of theevidence actis contemporary manifestation reform common law hearsay rule progressively made statute united kingdom australia course 20th century ramification reform provision designed ameliorate come parliament regarded increasingly unjust operation common law rule hearsay ought given narrow construction rather one recognises reforming purpose materially 69 2 provides hearsay rule apply document far contains representation representation made person might reasonably supposed personal knowledge asserted fact b basis information directly indirectly supplied person might reasonably supposed personal knowledge asserted fact asserted fact respect document exhibited mr kieber affidavit principally exhibit hk 1 concern existence account name dorje foundation might conveniently called lgt group liechtenstein respect beneficial interest held applicant taxpayer mr mr denlay representation document obviously enough concern amount account mr kieber copied whilst employee lgt group document back tape onto hard drive question authorised course employment copy document back tape hard drive held privately employee matter earlier employee contractor bank engaged provision information technology service lgt group also question evidence led respondent commissioner taxation document exhibit hk 1 derived record lgt group word continuity established show one record back tape extent extracted say document hk 1 insofar relate dorje foundation complete record everything back tape mr kieber said much evidence rather part record also question beyond breach term engagement lgt group constituted copying hard drive material back tape breach duty confidence owed bank bank turn owed customer mr kieber communicate exhibit hk 1 materially commissioner taxation much acknowledged mr kieber face evidence knowledge record keeping system within lgt group acquired knowledge employee matter earlier employee contractor group deciding whether requirement ofs 69 2 met permissible decide question level abstraction descend even identification might might reasonably supposed personal knowledge asserted fact face document within hk 1 number indicator concerning identity mr mr denlay make highly likely say least placed document person either personal knowledge might reasonably supposed personal knowledge asserted fact name appear record lgt group obscure european principality give clue reasonable supposition knowledge asserted fact mr kieber evidence included concession course cross examination particular type account within lgt group alias one might loosely call identity fraud unknown associated type account though account respect criminal activity rather described tax matter beyond matter name one see date birth conceded accurate well occupational activity deep sea diving face mr denlay affidavit one engaged one regard meeting recorded taken place record hong kong correlate mr taylor evidence movement australia mr mr denlay overlap even one disregard part mr taylor evidence put forward destination specifically hong kong remains nonetheless consistency period mr mr denlay australia meeting representative lgt group entered document according document hk 1 said occurred objection fallen consideration time particular exigency associated unfortunate position mr denlay presently find relation health proved possible denlays either mr mr denlay cross examined instead exceptionally consent course taken whereby commissioner case interposed prior completion denlays case particular prior mr denlay cross examined also prior brief cross examination yet unconcluded mr denlay even taking account evidence thus far fallen chief mr mr delay noted concession one particular gentleman lgt group dealt hong kong gentleman name also appears within record hk 1 entitled draw inference available face document comprise hk 1 inference name mr mr denlay appearing account date birth meeting person hong kong consistent australia meeting gentleman mr denlay concedes met course also consider denial given course interview 264 respect knowledge account way determinative question whether admit document comprise hk 1 otherwise allow objection respect ofs 69 ultimately may well reach view whether particular denial true moment though satisfied document within hk 1 contain representation made person might reasonably supposed personal knowledge asserted fact also satisfied matter given satisfaction voiced document contain representation made basis information directly indirectly supplied person might reasonably supposed personal knowledge asserted fact word however approach 69 2 theevidence act regard requirement satisfied circumstance case insofar relate document within exhibit hk 1 therefore overrule objection insofar relies upon section theevidence act leaf consideration whether ought nonetheless exclusion unders 138of theevidence act already earlier proceeding respect another issue occasion consider operation ofs 138in circumstance case fall consideration though background heard evidence mr kieber including course cross examination already referred breach confidence attend communication mr kieber document within exhibit hk 1 commissioner taxation mr kieber also conceded course cross examination understanding action breach confidence also contrary law lichtenstein proceeding separately heard determined concluded use material one find within exhibit hk 1 purpose making assessment consequence assessment making contrary law quashed seedenlay v commissioner taxation 2010 fca 1434 2010 276 alr 675 conclusion upheld full court seedenlay v commissioner taxation 2011 fcafc 63 question though concerned use administratively material necessarily follow use material administratively mean decision conferred bys 138must exercised favour reception though relevant consideration opinion least relation circumstance particular material obtained commissioner taxation background removal communication mr kieber would somewhat odd position whereby commissioner entitled use material making assessment even though otherwise admissible unders 69of theevidence act excluded tendering exercise discretion unders 138 doubt material exhibit hk 1 lgt group relevant high probative value course way part deciding objection evidence determine ultimate issue even material admitted way determinative ultimate issue rather relevant determination conceded respect properly conceded commissioner circumstance mr kieber took communicated document exhibit hk 1 ought regarded improper obtaining factor necessarily must taken account weighing process whichs 138provides though part obtaining commissioner taxation party copying back tape document mr kieber work section 138 3 posit number consideration court take account one found subpara h namely difficulty obtaining evidence without impropriety contravention australian law mr kieber gave evidence via german secret service bnd received sum money communication information back tape government federal republic germany reason upon elaborated reason judgment delivered respect application judicial review mean impossible see australian law namely theintelligence service act 2001 cth might possible australia adopted similar position germany relation obtaining material via mr kieber lgt group sense possible conceive circumstance whereby material might obtained without contravention australian law even though might nonetheless amount contravention law liechtenstein would difficult circumstance classify obtaining material lawful australian law nonetheless improper although given breach banker bank employee duty confidence occurred might nonetheless admit finding though posit circumstance occur one one might regard highly exceptional highly exceptional situation aside position commissioner taxation could obtained information particular liechtenstein financial otherwise manner came via mr kieber also relevant opinion position applies domestic law relation banker duty confidence insofar commissioner taxation seek information australian bank position considered stephen j insmorgon v australian new zealand banking group ltd commissioner taxation v smorgon 1976 1976 hca 53 134 clr 475at 486 question case arose background assertion commissioner taxation anz bank entitlement produced bank record concerning smorgons raised consideration whether bank contractual duty confidence customer corresponding contractual right confidence preserved answer assertion honour page 490 concluded contractual duty confidentiality arising relationship banker customer affect power commissioner invoke provision 264 1 b relation information within knowledge bank officer document possession bank concern customer income assessment thus information exhibit hk 1 reposed financial institution liechtenstein rather australian bank attended banker duty confidence corresponding contractual right part mr mr denlay would nothing point term ability commissioner require production documentation exhibit hk 1 pursuant 264 matter access material exercise power separately conferred bys 263of theincome tax assessment act 1936 cth itaa36 derived term basis upon australian parliament intends commissioner make assessment pursuant tos 166of itaa36 banker duty confidence regarded obstacle information base parliament expects commissioner able ass take account weighing exercise another criterion 138 3 point gravity impropriety contravention contravention australian law mr kieber certainly element self interest evidence nature extent self interest clear enough evidence acknowledge motif altruistic weighing consideration conclusion reach document comprise exhibit hk 1 admitted reach conclusion desirability admitting evidence outweighs undesirability admitting evidence obtained way mr kieber regard outcome consistent outcome reached pincus j inpearce v button 1985 8 fcr 388 pearce v button relation question whether common law evidence obtained occasion officer commonwealth custom officer admitted even though obtained circumstance officer concerned acting custom warrant later found invalid evidence concerned high probative value case removed fell consideration inpearce v button officer commonwealth party improper removing material put acknowledge consequential element impropriety associated commissioner exploitation via drawing tendering affidavit mr kieber given material arrived australia commissioner perfectly entitled access unders 263 difficulty seeing impropriety even consequential nature event record taken account reaching conclusion reason overrule objection follows insofar objection taken consequential evidence namely translation document exhibit hk 1 objection regard also overruled finally also follows conclusion reached respect mr kieber disposed virtue like weighing exercise exclude evidence given assistant commissioner neill certify preceding twenty eight 28 numbered paragraph true copy reason judgment herein honourable justice logan associate dated 21 september 2011
Nightingale v Latrobe SC [2006] VCAT 384 (15 March 2006).txt	nightingale v latrobe sc 2006 vcat 384 15 march 2006 last updated 21 march 2006victorian civil administrative tribunaladministrative divisionplanning environment listvcat reference p3496 2004permit application 04281catchwordss 77planning environment act 1987 latrobe planning scheme rural zone outdoor recreation facility paintball game facility consistency policy purpose zone social acceptability use environmental impact loss destruction native vegetation suitability access road site amenity impact noise dust amenity expectation applicantv nightingaleresponsible authoritylatrobe city councilrespondentsc j van eyk otherssubject land215 thompson road hazelwood southwhere heldmelbournebefores r cimino memberhearing typehearingdate hearing15 16 august 2005date order15 march 2006citation 2006 vcat 384orderwith respect permit application 04281 responsible authority decision refuse grant permit affirmed permit must granted r ciminomemberappearances applicantmr c taylor solicitor partner mr taylor called mr clarke planning consultant mr ba wollard traffic engineer give expert evidence responsible authoritymr ludeman planning consultant mr b fitzgerald council officer engineer respondentsmr b keen planning consultant m c van eyk behalf resident 27 property listed document tabled m van eyk following objector appeared person c van eyk p steinkellner w anders williams p xuereb j anders morsink p cooke n treasure reasons1 matter relates application unders 77of theplanning environment act1987
Saba, Janet [1999] MRTA 544 (27 October 1999).txt	saba janet 1999 mrta 544 27 october 1999 last updated 29 november 1999mrta 544visa applicant jolanda haddadyoussef khalil haddadkhakik haddadjozal haddadwadid haddadreviewapplicant janet sabatribunal migration review tribunalpresidingmember graham friedmansenior membermrt file number v96 02276dima file number f95 147184date decision 27 october 1999at melbournedecision tribunal remit matter department immigration multicultural affair reconsideration direction visa applicant spouse achieved qualifying score general point test relation skilled australian linked migrant class aj visa subclass 105 catchword usual occupation spouse apparel cutter qualifying score statement decision reasonsapplication review1 application review decision made delegate minister immigration multicultural affair detail follows visa applicant detail visa applicantname jolanda haddaddate birth 22 november 1956sex femalenationality palestinianvisa applicant spouse name youssef khalil haddaddate birth 25 september 1956sex malenationality palestinianother visa applicant name khakik haddaddate birth 20 january 1989sex malenationality palestinianname wadid haddaddate birth 26 july 1991sex malenationality palestinianname jozal haddaddate birth 21 september 1992sex femalenationality palestiniandecision type refusal grant visavisa class sub class skilled australian linked migrant class aj visa subclass 105date visa application 8 may 1995date primary decision 29 december 1995date miro decision 25 september 1996jurisdiction standing2 application review validly made lodged immigration review tribunal irt 12 november 1996 irt ceased operation 31 may 1999 application review deemed application properly made migration review tribunal tribunal pursuant section 41 1 themigration legislation amendment act 1 1998 review applicant janet sabadate review application 12 november 1996relationship visa applicant sister sister law aunt respectively legislation visa criterion policy3 themigration act1958
Sakieh v The King [2022] HCATrans 174 (14 October 2022).txt	sakieh v king 2022 hcatrans 174 14 october 2022 last updated 26 october 2022 2022 hcatrans 174in high court australiaoffice registrysydney s170 2021b e w e e n mobin sakiehapplicantandthe kingrespondentapplication special leave appealgageler jedelman jgleeson jtranscript proceedingsat canberra video connectionon friday 14 october 2022 2 02 pmcopyright high court australiagageler j accordance protocol remote hearing announce appearance party mr game scappears withms francisfor applicant instructed bannister lawyer m h r robert scappears withms e jonesfor respondent instructed director public prosecution nsw gageler j mr game mr game thank honour month time need extension time think opposed gageler j present argument mr game deal extension time question due course mr game thank position court plea case raise question process quite like raised indansie although much le complicated similar reason process engaged majority court criminal appeal defective could take court immediately page 114 application book paragraph 90 formulation test question whether verdict unreasonable cannot supported verdict commonly utilised new south wale prior universally commonly universally lack critical question say doubt experienced appeal court doubt jury ought subject advantage jury may second proposition actually critical thing case one judge ask question came conclusion doubt gageler j mr game three judge independently listened telephone intercept formed independent assessment could drawn accept mr game qualification honour qualification one draw submit justice beech jones judgment concluded open jury view particular way thing asking question whether reasonable doubt fact much close satisfied pathway guilt listening recording leaf paragraph take honour paragraph concluding paragraph 117 118 gleeson j mr game doubt justice rothman based whether mr sakieh bottom stair top stair issue justice beech jones identified question conjecture reasonable alternative hypothesis justice beech jones justice bell might identified could given rise doubt mr game sorry honour one go paragraph 103 think passage honour referring sentence submit possibly contentious entire judgment honour say regard possibility one group male returned pennicook lane entered stairwell enter victim balcony mere conjecture neither two judge joined justice bell explicitly distanced justice rothman 36 based lack information fact matter conjecture work way happened line mere conjecture come ofbaden clay question thing even suggested indispensable fact established beyond reasonable doubt six people went onto balcony matter conjecture based inadequate information seed failure judgment sentence honour come end judgment say well open entered onto victim balcony follows mistake appears paragraph 103 edelman j mr game flavour reading court appeal reason judgment flavour trial proceeded basis cannot prove one peeled entitled found guilty without real case put prosecution really put proof whether balcony room building mr game honour happened appeal accepted indispensable fact liable one balcony seen paragraph 87 justice beech jones judgment page 213 attention said person participant joint criminal enterprise deliberately inflict grievous bodily harm balcony balcony honour one get passage back paragraph 103 justice beech jones saying say controversially wrongly necessarily follows six people came back six went stair second level literally evidence estimate two witness four 10 people advantage jury question problem two witness anything credibility everything ability make observation unfortunate circumstance found passage 103 fourth last line really passage drive honour judgment turning thing upside introducing something collateral mere conjecture thing established beyond reasonable doubt six balcony edelman j common ground trial common ground prosecution trial put six balcony mr game yes passage referred justice beech jones judgment saying despite great effort prosecution get away appeal conducted case court fact address jury prosecutor actually said went inside unit necessarily go far clear case conducted basis could establish liability unless got somebody onto second level balcony reason think justice beech jones paragraph 117 118 asked doubt whether mr sakieh probably pronounced name wrong second balcony participant offence whole thing term emerging line potential reasoning transcript gageler j mr game could ask framework ofmanddansie mr game yes gageler j ultimate question whether appeal court judge appeal court satisfied jury must doubt conclusion reached jury acting reasonably must doubt unreasonable verdict ground made mr game yes gageler j judge reason actually doubt looked doubt therefore consider jury acting reasonably must doubt minority judgment go way say looked evidence listened carefully satisfied jury must doubt putting word well open word used jury reach conclusion betray error mr game yes honour judge make assessment display error gone process asking whether doubt proposition honour put conclusion reasoning left something critical process conclusion okay reasoning judgment hint suggestion honour asked first question inm v queen could show honour 104 honour dealt verdict gageler j mr game perhaps straightforward case disputed testimony one witness say something witness say something else classic jury question judge appeal say well prefer one witness testimony mr game gageler j mr game answer question interrupted sorry apologise gageler j answer stop interrupting evaluation real evidence category mr game well case proposition doubt jury advantage would trump example honour gave situation jury advantage jumping second question take consideration critical first one say doubt doubt entertain answered jury advantage answer second question jury advantage therefore first question question edelman j go step though course mr game say court look second call albeit light first call light fact applicant shown photograph lane answer maybe least equivocal word could reference lane could reference building could reference balcony mr game honour say say court doubt begin saying say answer would necessarily conclusion drawn justice rothman trying address first part argument say edelman j point two part first part question get asked second part must necessarily doubt mr game yes honour gageler j mr game see notice appeal asking u conclude must doubt quash conviction would asking court three judge court criminal appeal presumably involving listening transcript combing entirety evidence mr game honour think may overreach notice appeal would quite begging would quite content matter remitted court criminal appeal yes problem court engaging evidentiary question need listen recording gageler j real complaint methodological one say majority judge adopted wrong test mr game yes honour exactly say gageler j would want remitted apply right test mr game yes also say term prospect embrace put justice edelman answer actually drawn call come back question honour justice gageler asked contested testimony case went straight say well would able say one way would fine actually saying concluding second one good reason clearly case answer first question would cease critical would cease step take case reason given go back 104 actually time go back briefly part read 214 215 discussion evidence krisenthal wordsworth going wrap said case advantage look 104 must rather might test given work really put bed inpelland continues life must might justice hayne dealt dissenting judgment court appeal speculative conclusion drawn really put bed bypell must might really mean could convict case could convict case could say one six high test put say get end yes listened recording could possibly say conclusion recording balcony moreover erroneous whole strength erroneously built sentence paragraph 103 subject exchange justice gleeson submission clear yes granted special leave remittal court criminal appeal would press gageler j ground appeal appropriately formulated reflect way say error principle mr game yes honour ground appeal need one need leave need court erred failing make independent b really page 234 gageler j mr game hear appeal material would mr game honour gageler j application book mr game yes honour edelman j possible mr game mean submission going confined appeal one really majority misapplied test properly stated indansieexplainingm surely one way perhaps way really telling whether misapplied looking fact determine whether reasoning really discloses error mr game hate backtrack said justice gageler time honour look page 262 see top page occurred factual thing would need brought play fairly limited sure party could put court quite expeditiously say evidence sighting end lane forth yes might necessary provide honour material purpose asking whether court asked right question subject position gageler j thank mr game m robert m robert thank honour respondent contends approach unreasonableness ground taken majority case conformity test inm majority justice make independent assessment whole evidence come conclusion evidence established conclusion properly reached consistently principle edelman j m robert say anything oral recording term tone delay way word spoken would affect reasoning m robert honour yes edelman j m robert well wish give evidence bar table recording submission edelman j inform u whether submission effect made court appeal nature oral effect oral condition circumstance manner recording given m robert yes honour court criminal appeal hearing whilst cctv footage played honour directed various part behalf party applicant crown recording telephone intercept played hearing submission made tone transcript record thing word maybe spoken recorded snort bracket something might better heard whether complexion placed submission made jury recording heard regarded jury justice court criminal appeal referred listening honour justice rothman made observation importance listening rather reading transcript would respondent submission would relevant matter honour honour consider whether conclusion reached court criminal appeal matter properly reached availability finding honour made whether recording constituted admission must necessarily included assessment whether honour took correct approach making assessment course respondent submission correct approach taken part fact honour listened recording formed conclusion honour justice beech jones judgment paragraph 118 application book 226 honour describes telephone call 19 july 2017 especially incriminating form conclusion respondent submits honour conclusion reference jackshit answering maybe presence conveys present stabbing carry finding finding evidence respondent submission inextricably linked honour listened recording forming conclusion based sounded addition read transcript gageler j m robert read last sentence honour finding conveyed m robert yes honour respondent submission yes aspect third call answer perhaps honour justice edelman question submission made crown trial additional word recorded transcript set appeal book 254 excuse respondent response crown case trial indistinct word october call included even anything like anymore submission made jury also recorded honour submission referred honour justice beech jones paragraph 117 judgment court criminal appeal although reference submission rather conclusion honour honour continues paragraph 119 conclude respondent submits correct orthodox manner considering unreasonable verdict ground honour concludes given intercepted telephone call consider upon consideration whole evidence open jury satisfied beyond reasonable doubt statement testin respondent submission correct one edelman j m robert say submission reference justice beech jones conjecture abaden clay type reference circumstance always something common ground crown prove m robert honour crown submission trial crown case closed argument ruling confining crown case establishing assailant level first floor apartment honour president bell judgment paragraph 8 justice beech jones 85 jury directed participation joint criminal enterprise confined going first floor balcony least stair although became balcony unit way ultimately put difference stair balcony unit particular factual matter raised trial way defence case run applicant case described jury honour see summing appears application book 98 86 summing honour describing jury defence case behalf applicant evidence rational hypothesis applicant left group walked towards hillcrest road end pennicook lane rational hypothesis seventh man oversimplify situation evidence included cctv footage issue sighting mr byrne crown put particular reliance crown said jury accept mr byrne seen applicant partially disguised face whereas applicant challenged correctness mr byrne identification said mr byrne seen meant timing precluded one person got back ev vehicle end lane relying potentially two different way fallback position become perhaps way crown required confine case conclusion case put case jury limited basis uncertainty estimate number victim case became whether six person gone back onto balcony unit whether crown could exclude possibility applicant go rather drawn line drawn lot whether participation stair forth answer perhaps honour question honour president bell came different conclusion issue stair held conjectural possibility honour see honour judgment page 194 application book paragraph 15 16 honour came different conclusion said conjectural possibility effect reasonable possibility member group remained lower staircase outside first floor unit assault occurred despite conclusion case honour agreed assessment made assessment agreed assessment justice beech jones telephone intercept paragraph 17 honour say also listened numerous occasion recording agreed honour justice beech jones conclusion expressed way well open jury conclude call contain admission effect least entered victim balcony gleeson j m robert language well open jury saying contains within conclusion judge doubt saying necessary judge explicitly address question whether held doubt m robert honour proposition former understand put u language indicates identification pathway reasoning conclusion honour honour doubt however respondent submission assessment telephone intercept followed assessment case balance case honour considered material case formed conclusion jury must doubt ought doubt must doubt insufficiency evidence establish individual assailant one men went back young men say went back onto balcony part assessment cctv footage honour conclusion could certain six person returned lane honour president bell said paragraph 15 16 absence specific evidence inculpating one accused honour described particular incriminating evidence jury could satisfied beyond reasonable doubt accused participated joint criminal enterprise background honour effect looking whether telephone intercept provide particular incriminating evidence respondent submission honour concluding way honour satisfied amount admission presence balcony rather available path reasoning honour conclusion expressed way honour also agrees justice beech jones reasoning expressed slightly different already taken honour passage gageler j one view obviously justice beech jones produced judgment first judgment looking specific evidence listens telephone recording say last sentence paragraph 118 interpret said intercept conveying mr sakieh effect saying present stabbing conclusion reach basis one view reason saying well open jury reach conclusion reached admission following chief justice appears saying exactly saying reached conclusion listened recording exactly appears paragraph 118 may well read first sentence last sentence paragraph 118 might level fine analysis m robert honour certainly respondent contention properly read conclusion honour particular taking account come also way honour justice beech jones concludes paragraph 119 clearly statement taken account conclusion respect intercepted telephone call consider testhas satisfied contrast honour justice rothman reach simply respondent say simply different conclusion evidence recorded paragraph 48 49 appeal book page 200 honour say intercept evidence best considered listening honour say listened view conversation leaf open extent involvement satisfied admission involvement joint criminal enterprise respondent contention overall application special leave identify error principle error process either way applicant contends accordingly reason special leave granted thank honour gageler j thank m robert mr game mr game first think comment judge particularly might drawn listening recording one go line last line 118 conveys present stabbing indispensable fact person balcony stair kind defence difficult establishing participating joint criminal enterprise break upstairs unit kind like get onto balcony prospect establishing participation actually denies participation would address asking doubt conveys present word present becomes quite critical already said conjecture anybody stairwell balcony said earlier justice bell agrees even though agree process reached acute sort sub analysis try make work judge asked question submission good enough find reasoning asks v queenquestion use phrase well open informed honour stated test back passage took recounting entertained doubt respect others basically case answer say significant point raised acutely way court dealt question case warrant grant special leave gageler j thank mr game point retire consider course take 2 44 pm short adjournmentupon resuming 2 55 pm gageler j legal principle underlying proposed ground appeal recently addressed court indansie v queen 2022 hca 25 persuaded sufficient prospect establishing majority court criminal appeal misapplied principle warrant grant special leave appeal case extension time granted special leave appeal refused court adjourn 3 00 pm 2 56 pm matter concluded
Grant & Aiden (No 7) [2016] FamCA 654 (22 April 2016).txt	grant aiden 7 2016 famca 654 22 april 2016 last updated 18 august 2016family court australiagrant aiden 7 2016 famca 654family law child parenting contravention found proved mother co operating child assessed whether enforcement compensatory time appropriate 11f order made mother application prosecuted absence struck applicant mr grantrespondent m aidenfile number mlc5094of2008date delivered 22 april 2016place delivered melbourneplace heard melbournejudgment cronin jhearing date 22 april 2016representationcounsel applicant mr marchettithe respondent appearanceorders 1 contravention application issued father adjourned 10 00am 29 april 2016 2 substantive application extant order adjourned 10 00am 29 april 2016 3 mother application case filed 15 april 2016 struck want prosecution 4 mother contravention application filed 15 april 2016 struck want prosecution 5 paragraph 3 order made 15 april 2016 discharged 6 paragraph 2 order made 15 april 2016 varied read 2 notwithstanding existing parenting order child v born 2006 female child delivered father purpose attendance upon family consultant brisbane registry family court australia soon practicable arrangement registry 7 melbourne registry provide brisbane registry benefit family consultant appointed prepare report unders 11fof thefamily law act 1975 cth act following reason judgment 22 march 2016 b mother undated letter registry manager melbourne received 21 april 2016 c mother affidavit annexures filed 15 april 2016 copy family violence order magistrate court queensland made 15 april 2016 e affidavit said mr aiden filed 21 april 2016 f family report dated 21 december 2010 8 purpose conclusion contravention application father family consultant provide report 11f act address issue whether best interest child compensatory time father 9 reason day transcribed urgently made available due course brisbane family consultant appointed conduct inquiry 10 mother attend personally family court australia melbourne 29 april 2016 10 00am 11 mother fails attend 29 april 2016 melbourne father leave seek issue warrant apprehension arrest 12 pursuant section 68l 2 thefamily law act 1975the child v born 2006 female separately represented requested victoria legal aid arrange separate representation requested practicable susan macgregor reappointed appointed request melbourne registry provide copy document referred order provided brisbane registry family court australia 13 forthwith upon appointment said victoria legal aid otherwise independent child lawyer file notice address service 14 within 48 hour notification appointment party represented solicitor respective party provide independent child lawyer copy relevant document relied upon 15 pursuant tos 68p 1 ii thefamily law act order contain recovery order defined bys 67qof act order inconsistent temporary protection order issued 15 april 2016 magistrate court queensland 16 purpose ofs 68p 2 act contact inconsistent temporary protection order requires father mr grant collect v deliver child dispute service section brisbane registry family court australia 17 purpose ofs 68p 2 c act explanation making order contained reason judgment published 22 april 2016 court made available mother 18 purpose ofs 68p 2 act order made enable family consultant ass future interest child whether proper order spend future time father obligation created order father deliver child directed ii mother hinder interfere delivery child relevant family consultant either mother father fail comply order outlined consequence may include imprisonment 12 month 19 purpose ofs 68p 2 iv act reason making order inconsistent temporary protection order mother refused return child live melbourne ii complied parenting order iii delivered child relevant family consultant purpose assessing best interest 20 purpose ofs 68p 2 v act either party may apply court revocation order application writing supported affidavit 21 purpose ofs 68p 3 act copy order provided registrar magistrate court brisbane reference mag returnable 12 may 2016 9 00am ii chief commissioner queensland police force reference 200 rom street brisbane city 4000 iii department community child safety disability service 111 george street brisbane 4000 reference m aiden po box qld notedthat publication judgment court pseudonymgrant aiden 7 approved chief justice pursuant tos 121 9 g thefamily law act 1975 cth family court australia melbournefile number mlc 5094 2008mr grantapplicantandms aidenrespondentreasons judgmentthis return date order made court 15 april 2016 22 march 2016 absence mother m aiden published reason judgment contravention application proceeding adjourned view time avenue open court conclude proceeding make order compensatory time compensatory time could ordered unless court satisfied best interest child evidence enable make finding ordered child delivered family consultant purpose making assessment child produced recovery order issued 15 april child collected either federal state police delivered applicant father handed family consultant melbourne registry 19 april purpose conducting report seeking clear recovery order executed brief report family consultant indicated whilst applicant father attended child throughout period plethora paper filed mother including notice appeal judgment distinct order application case seeking variety order contravention application father application case contravention application listed hearing court today obviously matter court decide hearing listed today allocated doubt mother aware hearing today long letter written say quote matter cannot proceed ground change circumstance case application final order application filed mr grant would allow family law court change current parenting order 4 february 2011 current temporary domestic family violence protection order mr grant protecting child attached hereto go say actual bias present mismanagement case taken place resulting illegal proceeding matter party finally say reason hearing 22 april 2016 vacated including ground abuse court process procedural unfairness application contravention filed 22 february 2016 exist judgment order proceeding null void raise two thing first indicates quite clearly aware court issued document today attended previously mother sent court application hearing involved determined electronic mean refused application chamber basis previously ordered attend person event wanting attend electronic mean would seem conflict view hearing today vacated ground abuse court process procedural unfairness indicated application case today also seek order pending appeal order made stayed difficulty understanding exactly say letter referred rather substantive application part heard contravention application stage relation contravention application made order right appeal relation contravention one appeal judgment litigant right appeal order even notice appeal could construed appeal order made absence return child victoria issue recovery order matter interlocutory would require leave appeal event seems stay application therefore misconceived may prosecute application issued order recovery order anticipated today thesection 11freport would completed would give indication view expert would child best interest complicating factor case mother obtained ex parte application described queensland temporary protection order temporary protection order excludes father effectively anywhere near child exemption order provision sometimes seen would enable family court order implemented trouble therefore recovery order would clash family violence order potentially put executing officer father peril correct approach view relation deal provision ofsection 68pof act family violence order inconsistent family court ordersection 68pprovides certain thing done section 68p 1 ii includes recovery order limited spending time child conceivable order mind executing officer recovery order hand child father would deliver family consultant provision applies court make order must extent order provides event specify order inconsistent existing family violence order certain irony case first time order made reason judgment 22 march made reference order made dessau j section 68p 2 go provide court must give detailed explanation order particular contact provided take place shall case uncertainty contact contemplating restricted delivery father family consultant purpose completion necessary report previously ordered clear family violence order also reason 22 march well evidence child brisbane least queensland order recovery order executed brought back melbourne purpose apart obvious delay may cause distress seems recovery order executed taken father family court brisbane subject resource registry available distress limited indeed mother could attend wished purpose ofs 68p contact father mother environment could seen breach state family violence order fact desire least child present necessary family consultant complete report mother well interpolate would understand absolutely necessary subsection 2 provides court mandated explain party proceeding nature order injunction handicap case assistance mother indeed distinct opposition going reason expedited published quickly least understand purpose ofsection 68p 2 c particular order limited enable court conclude responsibility relation family law contravention application subsection 2 also requires court include explanation language person readily able understand purpose order obligation created order including contact take place consequence may follow person fails comply order court reason making order extent inconsistent family violence order circumstance person may apply variation revocation order dealing two particular matter sequentially first failure comply order would amount contravention mother obligation interfere order extent took action evade execution deliberately thwart likely would amount contravention case would face consequence second matter opportunity apply vary revoke order ironical made order 15 april recovery order simply opposed order refer letter wrote court made application today set order aside extent considers appropriate court order recovery order listing matter next friday week today opportunity attend personally seek order set aside dilemma course going expedite order extent relevant police authority execute notwithstanding opposition something deal make abundantly clear therefore purpose recovery order enable court fulfil obligation complete contravention order obtaining information independent expert source best interest child interpolate also particular issue considered reason judgment dealt issue evidentiary nature conflict father daughter subsequent adjournment material voluminous nature filed court go way beyond evidence mother gave court two day includes statement could said made distressed child relation allegation father none evidence given seems stage treat cautiously second matter disturbing one 21 april mother filed affidavit son mr aiden described student narrative affidavit simply say giving sister voice proceeding attached unusual affidavit handwritten statutory declaration woman recall proceeding material grandmother intend deal second document handwritten note purporting written child addressed indicating want live father ever said mean cruel argues m c want mum go court ever every time talk someone always stay like living queensland want see like new school staying queensland mum brother sadly document witnessed justice peace clearly indicates child dragged process much involved find disturbing basis propose make available family consultant whole file rather following document reason judgment 22 march 2016 undated letter mother addressed registry manager mother affidavit 15 april 2016 annexures copy family violence order magistrate court queensland made 15 april 2016 ex parte basis andthe affidavit said mr aiden 21 april referred propose also reason transcribed urgently available made available family consultant brisbane serious problem case exacerbated mother railing court concluding determination want make clear mother every right appeal determination logic using relation letter earlier referred illegality proceeding abuse court process face nonsense matter dealt reason judgment 22 march insofar alleges procedural unfairness ironic matter listed hearing filed certificate doctor least indicated unwell view certainly understanding victoria look remarkably like sort game played need stop child sake considerable discussion assistance counsel father clearly thought course action taken considers important case continue participates life daughter one might wonder someone might hurdle put way one read wrote judgment 22 march 2016 constant problem knowledge least third contravention mother found contravened order view case need resolution importantly quickly sitting melbourne least three month end next week accordingly propose court melbourne approach brisbane registry alert prospect need something quickly also request australian federal police execute recovery order propose make quickly well propose issue new recovery order simply propose alter existing one make clear australian federal police state police execute notwithstanding family violence order matter otherwise adjourned determination next week extent mother read reason propose allow deal matter electronic mean also intend attend personally attend 29 april 2016 personally legal representative shall give father leave issue orally application issue warrant arrest happens thereafter may matter judge determine certify preceding thirty three 33 paragraph true copy reason judgment honourable justice cronin delivered 22 april 2016 associate date 4 may 2016
1217206 [2013] MRTA 1827 (6 August 2013).txt	1217206 2013 mrta 1827 6 august 2013 last updated 23 august 20131217206 2013 mrta 1827 6 august 2013 decision recordapplicant mr jasmeet singhmrt case number 1217206diac reference bcc2008 31369tribunal member kira raifdate 6 august 2013place decision sydneydecision tribunal affirms decision grant applicant skilled provisional class vc visa statement decision reasonsapplication reviewthe applicant national india born april 1985 first travelled australia june 2006 holder student visa july 2006 june 2008 applicant completed advanced diploma hospitality management austech institute education applicant applied skilled provisional class vc visa 5 august 2008 31 october 2012 delegate decided refuse grant visa delegate satisfied applicant met public interest criterion pic 4020 purpose cl 485 224 particular delegate found applicant provided bogus document tra skill assessment delegate satisfied applicant completed 900 hour work experience copper tiffin restaurant claimed skill assessment application applicant sought review delegate decision 6 november 2012 issue arises review whether applicant meet pic 4020 purpose cl 485 224 requires consideration followinghas applicant given caused given bogus document information false misleading material particular andif circumstance waive provision justify granting visa relevant law defined termsbroadly speaking pic 4020 requires evidence applicant given caused given minister officer tribunal relevant assessing authority medical officer commonwealth bogus document information false misleading material particular relation application visa visa applicant held 12 month application made pic 4020 1 applicant member family unit refused visa failure satisfy pic 4020 1 period commencing 3 year application made present pic 4020 2 unless certain compelling compassionate reason justifying granting visa term information false misleading material particular defined pic 4020 5 term bogus document defined 97 act contrast definition information false misleading material particular pic 4020 5 reference 97 document false misleading requirement relevant criterion grant visa batra v miac 2012 fmca 544 requirement pic 4020 1 provide bogus document false misleading information applies whether minister became aware bogus document information false misleading material particular information given applicant also applies whether document provided applicant knowingly unwittingly vyas v miac 2012 fmca 92 procedural matterson 27 june 2013 tribunal wrote applicant pursuant 359a act inviting applicant provide comment information considered would reason part reason affirming decision review writing invitation sent nominated authorised recipient last address provided connection review advised comment provided writing 5 august 2013 tribunal may make decision review without taking step obtain comment applicant would lose entitlement might otherwise act appear tribunal give evidence present argument applicant provided comment within prescribed period extension granted circumstance 359c applies pursuant 360 3 applicant entitled appear tribunal effect 363a act review applicant entitlement hearing tribunal power permit appear hasran v miac 2010 fcafc 40 tribunal decided proceed decision without taking step obtain comment applicant given caused given bogus document information false misleading material particular applicant stated application form july 2007 august 2008 worked cook yash desai applicant provided written submission delegate dated 23 march 2011 referred obtaining 900 hour work experience first hukum indian restaurant 15 july 2007 september 2007 copper tiffin 21 september 2007 10 june 2008 assistant cook department file also contains copy letter explanation dated 10 july 2008 provided mr desai tra mr desai refers applicant employment hukim indian restaurant copper tiffin july 2008 purpose obtaining 900 hour work experience tra skill assessment applicant provided primary application indicates assessment based partly applicant completion 900 hour work experience applicant nominated occupation cook application tribunal find tra relevant assessing authority regard evidence noted tribunal find applicant provided relevant assessing authority tra information concerning work experience assistant cook copper tiffin employment counted towards 900 hour work experience completion formed basis skill assessment department file contains information indicates 56 applicant claimed work experience copper tiffin corresponding period size kitchen may adequate accommodate number staff applicant provided comment information explanation could carried employment copper tiffin assistant cook many applicant also presented little independent verifiable documentary evidence concerning employment copper tiffin example employment contract time sheet evidence insurance etc tribunal view documentary evidence employment available applicant even paid employment information department file concerning claim employment copper tiffin made large number applicant together lack independent verifiable evidence employment fact tribunal opportunity test applicant claim employment cause tribunal find applicant employed copper tiffin assistant cook september 2007 june 2008 claimed tra application tribunal find applicant statement concerning employment copper tiffin false misleading tribunal reasonably suspect tra skill assessment obtained false misleading statement whether made knowingly skill assessment bogus document within meaning 97 c act tribunal find document given caused given minister officer tribunal find evidence applicant given caused given minister officer bogus document tra assessment relation application visa tribunal find applicant meet pic 4020 1 requirement pic4020 waived requirement cl 4020 1 2 may waived compelling circumstance affect interest australia compassionate compelling circumstance affect interest australian citizen australian permanent resident eligible new zealand citizen defined r 1 03 applicant identified compelling circumstance affect interest australia compassionate compelling circumstance affect interest australian citizen australian permanent resident eligible new zealand citizen tribunal satisfied limited evidence circumstance exist tribunal determined waive requirement subclause pic 4020 1 tribunal satisfied applicant meet pic 4020 cl 485 224 regard application fee paid tribunal find applicant make valid application subclass 487 visa conclusionon basis applicant satisfy pic 4020 purpose cl 485 224 decisionthe tribunal affirms decision grant applicant skilled provisional class vc visa kira raifsenior member
N97_15237 [1998] RRTA 3867 (14 August 1998).txt	n97 15237 1998 rrta 3867 14 august 1998 refugee review tribunaldecision reason decisionrrt reference n97 15237country reference china prc tribunal member peter thomsondate decision 14 august 1998place sydneydecision tribunal remit matter reconsideration direction applicant person australia protection obligation refugee convention backgroundthe applicant husband wife citizen china prc arrived australia in1996 on10 december 1996they lodged combined application protection visa department immigration multicultural affair themigration act 1958 act on4 april 1997a delegate minister immigration multicultural affair refused grant protection visa on22 april 1997the applicant sought review decision issue arises case validity application review tribunal jurisdiction review delegate decision legislationa criterion protection visa time decision minister review tribunal satisfied applicant person australia protection obligation 1951 convention relating status refugee amended 1967 protocol relating status refugee s 5 1 and36 2 act australia party refugee convention refugee protocol generally speaking protection obligation people refugee defined related criterion fulfilled respect applicant make specific claim refugee convention member family unit applicant made claim applicant granted protection visa thus fate application depends outcome application family member made specific convention claim seepart 866of schedule 2 migration regulation mima v thiyagarajah 1998 151 alr 685per von doussa j 687 munkayilar v mima unreported federal court beaumont j 21 october 1997 9 refugee conventionarticle 1a 2 convention defines refugee person owing well founded fear persecuted reason race religion nationality membership particular social group political opinion outside country nationality unable owing fear unwilling avail protection country nationality outside country former habitual residence unable owing fear unwilling return definition considered high court inchan yee kin v miea 1989 hca 62 1989 169 clr 379 applicant anor v miea anor 1997 142 alr 331 354 andmiea v guo anor 1997 144 alr 567 575 6 federal court number case notablyram v miea anor 1995 fca 1333 1995 57 fcr 565 case established following general principle inguo case court observed definition contains four key element first applicant must outside country second applicant must fear persecution inapplicant gummow j 375 referred primary meaning term persecution ordinary usage action persecuting pursuing enmity malignity esp infliction death torture penalty adherence religious belief opinion view repression extirpation every threat harm interference person right convention reason constitutes persecuted mason cj referred persecution requiring serious punishment penalty significant detriment disadvantage chanat 388 harm threat harm part course selective harassment person whether individually member group subjected systematic harassment amount persecution done convention reason appropriate case may include single act oppression serious violation human right measure disregard human dignity persecution must official quality sense official officially tolerated uncontrollable authority country nationality persecution implies element motivation part persecute infliction harm people persecuted something perceived attributed persecutor third reason persecution must found singling one convention reason race religion nationality membership particular social group political opinion phrase reason serf identify motivation infliction persecution fourth applicant fear persecution convention reason must well founded fear add objective requirement requirement applicant must fact hold fear person well founded fear persecution convention genuine fear founded upon real chance persecution convention stipulated reason fear well founded real substantial basis merely assumed mere speculation real chance one remote insubstantial far fetched possibility person well founded fear persecution even though possibility persecution occurring well 50 per cent addition applicant must unable unwilling fear avail protection country object convention provide refuge lost thede jureorde factoprotection government unwilling return country nationality follows whenever protection country nationality available ground based well founded fear refusing person concerned need international protection refugee whether applicant satisfies convention definition assessed upon fact exist decision made requires consideration matter relation reasonably foreseeable future mere fact person claim fear persecution particular convention reason establish either genuineness asserted fear well founded reason claimed applicant persuade tribunal statutory element made guo caseat 596 claim evidenceonly applicantwife made specific claim refugee convention convenience therefore refer applicant wife applicant applicant claim set written submission department written submission tribunal oral evidence given tribunal 22 april 1998 follows pro democracy activitiesthe applicant arrested pro democracy activity detained sent labour reform farm originally sent one year released month pregnant result lost job religious belief applicant second child breach one child policy china applicant claim joined underground religious church claim founder church arrested took part establishing church member applicant organised gathering church claim police surrounded premise detained one month released claim forced join legal church also carried religious activity limited way friend attending home kept quiet nearly three year applicant claim asked whether would write article underground magazine claimed hesitated concern family previous mistreatment authority friend applicant fight officer government department applicant angry published article pen name underground magazine arriving australia learnt publisher magazine friend sentenced long term detention also claimed husband asked return china work take activity claimed psb wanted return husband willing pay ticket husband thought something looked odd employee company told psb come claim discovery magazine forced resign rather return china claim psb visited home looking also claim able arrange child leave china political religious activity applicant asked dissatisfied practising religion legal church member following release second detention stated believed god god important church thing god instruction example church allow proselytising claimed allowed relationship overseas organisation thought would useful people poor background could receive bible religious material overseas also said official church rule one could gather necessary make application meeting tribunal asked whether proselytised australia claimed tried spread word applicant statement christian church australia say attending service regularly attended bible study baptised official church china zealously share faith friend often brings church applicant also statutory declaration dated 25 march 1998 claim applicant regarded internal control target public security bureau claim applicant mother must notify public security bureau time time applicant situation treatment christian chinaalthough ideology chinese communist party ccp atheist materialistic party recognises right chinese citizen religious belief however attempt control religious organisation expression revised constitution people republic china announced 27 april 1982 state article 36 religious belief citizen prc enjoy freedom religious belief organ state mass organisation person allowed force citizen believe believe religion impermissible discriminate citizen belief believe religion state protects legitimate religious activity person permitted use religion conduct counter revolutionary activity activity disrupt social order harm people health obstruct educational system country religion subject control foreign country hunter chan k 1993 protestantism contemporary china p 48 1982 thirty page circular sent leading cadre throughout country became known document 19 repudiated excessive repression religion occurred cultural revolution outlined way state permit also control religion policy followed ccp since essential feature new policy religious activity tolerated carefully controlled activity fall outside defined limit suppressed definition permitted remains hand senior party official jargon used frequently permitted activity called normal party disapproves may called illegal among latter two sort targeted document criminal counter revolutionary activity hiding behind facade religion infiltration hostile foreign force protestantism contemporary china p 50 document name example criminal element hide behind facade religion banned reactionary secret society sorcerer witch hostile religious force abroad set underground church illegal organisation ibid p 50 result promulgation policy official unofficial religion developed within christianity exist state approved protestant catholic body also underground unapproved body former controlled many regulation inspection latter targeted enforced registration punished non compliance dfat cable quote beijing government official provides example government attitude towards religion cable suggested chinese authority recognise five great religion buddhism taoism islam catholicism protestantism least 100 million chinese observe sort religious faith china human right religion 1997 dfat 6 august bj14714 cx25256 registration religious organisation putting religious activity u department state report refers police closing dozen underground religious group many significant membership china freedom religion 1996 u department state country report human right practice recent report authority concerned extent proselytising china forney religion china god country far eastern economic review june 1996 p 46 china wipe illegal church lexis nexis electronic download sourced united press international 1997 cx24108 cisnet proselytisingproselytising 18 year age forbidden hong kong writer anthony lambert list among regulation carried chinese local government authority unauthorised religious activity outside officially designated church meeting point especially itinerant evangelism proselytism young people 18 year age hunter chan k 1993 protestantism contemporary china p 52 rrt library see also china state control religion 1997 human right watch asia pp 21 u department state report china country report human right practice 1997 january 30 1998 state state council responsible monitoring religious activity year government continued national campaign enforce 1994 state council regulation require religious group register government religious affair bureau come supervision official patriotic religious organization religious group subjected increased restriction although degree restriction varied significantly region region number religious adherent unregistered registered church continued grow rapidly certain region government supervision appears loosened local implementing regulation shanghai chongqing guangxi call strict government oversight part country registered unregistered church treated similarly authority congregant worship type church area particularly region considerable unofficial unregistered religious activity taken place authority closely monitor place worship relationship unregistered registered church tense end 1996 government reported 70 000 place worship registered 1997 authority continued campaign register religious group group registered voluntarily registered pressure authority refused register others unofficial group claim authority often refuse registration without explanation according government refusal mainly result inadequate meeting space many religious group reluctant comply regulation principled opposition state control religion fear adverse consequence reveal required name address member detail leadership activity finance contact china abroad april one largest house church zhejiang agreed persistent pressure apply registration condition would required join three self patriotic movement chinese christian council however provincial authority judged condition accord government regulation declared illegal closed church law prohibit religious believer holding public office however communist party official state party membership religious belief incompatible forcefully suppressing religious observance closing seminary 1966 76 cultural revolution government began late 1970 restore replace damaged confiscated church temple mosque monastery allow reopening seminary authority permit officially sanctioned religious organization maintain international contact long entail foreign control year new level openness international dialogue religious issue china invited increasing number foreign religious organization visit religious site talk official religious leader figure treatment christian china varies lot place place different time department foreign affair trade dfat human right delegation briefing religion cable bj 46678 21 june 1991 state policy towards unofficial church varies province province example several province hardline anti unofficial church anti foreign missionary policy include heilongjiang jilin liaoning tianjin inner mongolia gansu shanxi yunnan proselytisation evangelism permitted officially registered church home people properly registered officially registered institution according dfat cable bj 46678 op cit since june 1989 chinese authority frequently expressed concern certain foreign unhealthy influence undermining socialist system role religion overthrowing communism easter sic europe sic noted dfat cable bj 46678 op cit also state government sometimes tolerates non sanctioned religious group however also often actively suppresses unofficial group security force raided illegal underground service causing death destruction arresting worshipper april 1990 underground catholic service hebei province raided two person reportedly killed 150 arrested april may 1991 large scale campaign illegal religious activity carried liaoning province several underground catholic priest arrested several unofficial protestant home church closed foreign evangelist deported regulation introduced prc 1994 require unofficial church registered regulation management place religious activity state council order 145 promulgated january 31 1994 resulted crackdown underground church part prc theunited state state department country report human right practice 1996 op cit state annual national religious affair conference january religious policy readjusted emphasize harder line aspect year many religious group subjected increased restriction although degree restriction varied significantly different region china despite increased restriction number religious adherent continues grow national goal 1996 register close unregistered religious group 1996 police closed dozen underground mosque temple seminary hundred protestant house church group many significant membership property financial resource network leader group including itinerant teacher evangelist increasingly detained lengthy investigation ngo report death detainee beating congregation hit heavy fine non mainstream sect often singled particularly heavy handed treatment public security bureau keep tab said church mosque temple day government right fear religion said elderly catholic priest growing china belief socialism corrupt party rapidly declining uli schmetzer tribune staff writer may 12 1996 chicagoland final edition beijing cast wary eye surge religion atheist leader ordering crackdown human right watch religious persecution persists december 1995 state page 3 targeted repression publicly evangelised opposed government 1994 95 chinese government communist party official broadened drive eliminate expression dissent last two year chinese government issued new directive requiring congregation register religious authority stepped pressure evangelist tightened control contact foreigner distribution religious material suspected linking religion political activity singled harshest treatment page 4 repression tended occur area foreigner actively proselytized trained local lay leader doctrine evangelistic methodology underground house church member challenged party government authority public worship targeted treatment pro democracy dissidentsan edited cable department foreign affair bj7550 28 september 1994 cx3018 state dfat evidence tightening control dissident since period leading year anniversary june 1989 extended participant pro democracy group overseas returned china recently chinese authority remained harsh treatment considered posing open challenge regime however significant shift people attitude towards political matter since tiananmen push economic development past two year particular people become much practical le dogmatic politics willing voice unofficial criticism party government matter directly affect life criticism common unlike past traditional mean political control reporting political ground become much le common many pro democracy activist tiananmen period returned allowed become involved trade economic pursuit without hindrance government government seem drawn clear line welcome participation economic development ban attempt returning dissident engage political activity another dfat cable guangdong f0244 dated 9 may 1995 reaffirmed view expressed cable cable following advice provided already noted post reporting past prc authority stated involved event june 1989 living overseas fear returning china particular emphasis put encouraging student return put overseas acquired skill use china understand also applies anyone regardless reason overseas first place prevailing attitude government action following june 1989 vast majority people caught event best forgotten interested bringing dfat previously advised chinese government bid encourage overseas student skilled personnel return china made formal announcement conduct political investigation returnees expressed dissent overseas promised provide attractive working living condition return china see dfat cable bj51658 dated 2 september 1992 penalty taking part pro democracy demonstrationsa number source reported imposition prison sentence five year even five year people involved pro democracy activity china two report 1991 1994 respectively prepared human right watch hrw provide indication range penalty imposed chinese dissident pro democracy activist july 1991 hrw report titledtwo year tianamen political prisoner china cumulative data mentioned arrest li honglin fuzhou 6 july 1989 li honglin advocate political economic reform formerly president fujian academy social science hrw 1991 human right watch 1991 two year tiananmen political prisoner china 1994 hrw report titled detained china tibet directory political religious prisoner mentioned sentencing sun xiongying 21 december 1989 fuzhou intermediate people court sun fuzhou sparetime university cadre sentenced 18 year imprisonment five year subsequent deprivation political right arrested fall 1989 local resident informed fuzhou guluo precinct authority sun protest activity finding reasonsthe applicant gave evidence straight forward credible way tribunal accepts suffered significantly following 1989 demonstration spent month labour reform farm lost job tribunal accepts christian joined underground church closed chinese authority demonstrated good knowledge bible australia immediately joined christian church australia tribunal accepts applicant detained following raid underground church helped establish restriction right practise religion distinct forbidding practice altogether may constitute persecution circumstance inmilgea v mok 1994 55 fcr 375 full federal court stated found difficult understand significance statement delegate reason concerning claimed general restriction m mok ability practise religion delegate said consider claimed general restriction amounted denial m mok right practise religion rather limitation right understand restriction right practise religion distinct forbidding practice altogether constitute persecution may constitute persecution given set circumstance however tribunal satisfied limit proselytising would amount persecution case able practice religion china baptised official church however factor case including fact underground church leader closed tribunal view risk future harm applicant return china published article critical authority underground magazine tribunal view authority would seek punish restrict ability publish article future tribunal give applicant benefit doubt timing claimed discovery authority authorship article tribunal view applicant refugee cumulative ground pro democracy background would caused problem upon return religious activity maintained applicant profile dissent addition suffered result pro democracy activity suffered detention religious belief church leading member closed chinese authority written article may well cause problem return china friend reported psb remain interested information concerning return tribunal note join authorised church however clear following act continued publish document dissent china two friend arrested severely punished activity tribunal view applicant would perceived dissident upon return china part religious view part pro democracy background strong criticism regime tribunal view well founded fear persecution political opinion religious belief conclusionthe tribunal satisfied applicant person australia protection obligation refugee convention amended refugee protocol therefore applicant satisfies criterion set 36 2 act protection visa specific convention claim made behalf applicant husband fate application therefore depends outcome applicant application provided remaining criterion set part 866 schedule 2 regulation satisfied applicant husband entitled application follow fate applicant application applicant visa granted husband entitled protection visa decisionthe tribunal remit matter reconsideration direction applicant person australia protection obligation refugee convention
MOORE v POLICE [2006] SASC 324 (25 October 2006).txt	moore v police 2006 sasc 324 25 october 2006 last updated 26 october 2006supreme court south australia magistrate appeal criminal disclaimer every effort made comply suppression order statutory provision prohibiting publication may apply judgment onus remains person using material judgment ensure intended use material breach order provision enquiry may directed registry court generated moore v police 2006 sasc 324judgment honourable justice sulan25 october 2006criminal law particular offence driving offence practice procedure sentencingcriminal law appeal new trial inquiry conviction appeal new trial appeal sentence appeal convicted person application reduce sentence granted particular offence offencesappeal sentence appellant pleaded guilty driving whilst disqualified driving unregistered motor vehicle appellant arrested 17 may 2006 sentenced 25 july 2006 appellant custody time arrest sentenced appellant parole time offence committed 17 may 2006 unexpired period parole time two year six month twenty nine day appellant sentenced four month imprisonment offence driving whilst disqualified served expiration unexpired period parole magistrate subsequently listed matter adjusted sentence reflect time appellant spent custody arrest sentenced whether magistrate failed regard time spent custody setting non parole period whether magistrate appropriately applied 76b summary procedure act 1921 recalling matter amending sentence consideration appropriate application 76a 76b summary procedure act 1921 correctional service act 1982s 75 75 1 b criminal law sentencing act 1988s 9a 30 6 c 31 31 2 32 1 32 2 motor vehicle act 1959s 9 91 summary procedure act 1921s 76a 76b referred muscat v magistrate court 1996 sasc 5551 1997 66 sasr 367 police v alikaris 2000 sasc 163 r v czubak 2005 sasr 400 tran v police 1998 sasc s6891 considered moore v police 2006 sasc 324magistrates appeal1sulan j appeal yet raise difficulty sentencing court application 75 thecorrectional service act 1982 thecorrections act repeat said gray j inr v czubak 1 legislation complex occasion difficult follow apply attention drawn convoluted nature present legislative provision consideration may given amended simplified legislative scheme 2 background2on 25 july 2006 appellant pleaded guilty driving motor vehicle whilst disqualified contrary 91 themotor vehicle act 1959 also pleaded guilty driving unregistered motor vehicle contrary 9 themotor vehicle act 1959 3the circumstance offending early hour morning wednesday 17 may 2006 police observed appellant travelling east west thebarton road holden commodore motor vehicle appellant pulled west thebarton hotel car park police approached whilst police trying establish identity fled police eventually apprehended arrested outstanding warrant police ascertained disqualified driving 6 july 2005 12 month also observed registration vehicle expired 4the appellant admitted aware disqualified driving told police unaware car unregistered belong 5the appellant appalling driving record come detail later moment sufficient note appellant parole time offence unexpired period parole time offence two year six month twenty nine day magistrate sentenced appellant four month imprisonment offence driving whilst disqualified ordered sentence served expiration unexpired period parole total head sentence therefore two year ten month twenty nine day magistrate set non parole period twenty month count driving unregistered motor vehicle magistrate imposed conviction without penalty 6i return event occurred subsequent 25 july 2006 later reason appeal7the appellant appeal sentence ground sentence manifestly excessive upon hearing appeal became clear one reason upon submitted sentence manifestly excessive magistrate error application 75 correction act said failed regard period appellant spent custody 17 may 2006 arrested 25 july 2006 sentenced primary complaint non parole period manifestly excessive complaint made starting point four month imprisonment offence driving whilst disqualified 8in order understand problem magistrate deal necessary set detail appellant antecedent history set previous conviction refer relevant previous conviction antecedent history9the appellant convicted numerous driving offence past twenty two year 10on 25 january 1999 convicted twelve count receiving breaking entering building committing offence unlawful possession driving motor vehicle without consent driving without licence sentenced total forty two month imprisonment non parole period two year commence 1 june 1998 11the appellant released parole parole committed offence dishonesty offence driving whilst disqualified released parole various occasion january 2001 december 2005 breached parole resulting return custody 12on 5 december 2005 released parole expire 16 december 2008 whilst parole offence subject appeal committed date offence committed 17 may 2006 unexpired period parole appellant due serve two year six month twenty nine day letter parole board13the secretary parole board south australia advised consequence appellant imprisonment 25 july 2006 pursuant sentence imposed magistrate parole automatically cancelled pursuant provision 75 correction act unexpired balance sentence 17 may 2006 two year six month twenty nine day 14during appeal received advice secretary parole board following term 26 april 2006 deputy presiding member noted report mr moore supervising community correctional officer advising client arrested police 9 march 2006 possession double edged knife alleged breach parole condition b page 1 parole release order deputy presiding member authorised issuing summons client appear board 1 september 2006 unless earlier date became available 18 may 2006 deputy presiding member considered two report community correctional officer advising alleged breach parole charged additional offence committed whilst parole including drive disqualified committed 17 may 2006 proven would breach designated condition failing attend court 11 may 2006 good behaviour condition failing report 11 may 2006 reporting condition deputy presiding member authorised withdrawal summons issuing parole board warrant mr moore arrest warrant executed 18 may 2006 mr moore due appear board interview 24 october 2006 unless earlier date becomes available 15the appellant due appear parole board 24 october 2006 time appellant sentenced magistrate parole board determined cancel parole legislative scheme16section 75 thecorrections actprovides follows 75 automatic cancellation parole upon imprisonment offence committed parole 1 person sentenced imprisonment offence committed parole sentence suspended b suspension sentence imprisonment imposed offence committed person parole revoked person liable serve prison balance sentence sentence imprisonment respect parole balance unexpired day offence committed 1a subsection 1 applies notwithstanding time conviction person revocation suspended sentence parole may expired discharged 2 person referred subsection 1 time conviction revocation suspended sentence still parole parole virtue subsection cancelled 17section 30 6 c criminal law sentencing act 1988 sentencing act provides 6 imposing sentence imprisonment court fails specify date time sentence commence taken commenced sentence c case defendant custody offence commence day sentence imposed unless sentence served cumulatively pursuant act act 18section 31 thesentencing actprovides 31 1 subject subsection 2 court sentence imprisonment imposed may direct sentence cumulative upon sentence sentence imprisonment detention training centre served served defendant 2 sentence imprisonment imposed offence committed defendant period release parole conditional release b serving period imprisonment pursuant order parole board breach parole condition sentence except one sentence defendant subject life imprisonment cumulative upon sentence sentence respect defendant parole 3 direction may given subsection 1 irrespective number cumulative sentence defendant already serving consequence direction liable serve 4 section apply relation youth unless youth sentenced adult 19sections 32 1 2 thesentencing actprovides 32 1 subject section court convicting person offence sentence person imprisonment court must person subject existing non parole period fix non parole period b person subject existing non parole period review non parole period extend period court think fit period extension exceeds period imprisonment person becomes liable serve virtue sentence sentence imposed court c person serving minimum term imposed respect offence law commonwealth liable serve term expiry existing non parole period fix non parole period respect sentence sentence served upon expiry minimum term 2 sentence imprisonment imposed offence committed period release parole conditional release previous sentence imprisonment detention court fixing non parole period subsection 1 must regard total period imprisonment detention imprisonment person virtue new sentence balance previous sentence liable serve 20the effect section referred person parole sentenced term imprisonment offence committed whilst parole person becomes liable serve balance sentence sentence imprisonment respect person parole balance unexpired date offence committed sentence commence immediately upon sentence imprisonment imposed respect offending sentence imprisonment imposed cumulative upon unexpired period parole person required serve pursuant 32 sentencing act court required fix non parole period respect whole sentence 21the magistrate applied section correctly effect magistrate order upon imposition sentence imprisonment four month appellant became liable immediately serve unexpired balance parole two year six month twenty nine day total sentence two year ten month twenty nine day commencing date sentence unexpired period parole served first four month sentence ordered cumulative upon sentence 22by operation provision two act magistrate could backdate sentence imposed offending virtue 75 thecorrections act unexpired period parole commenced upon appellant sentenced virtue 30 6 c thesentencing act four month sentence cumulative upon unexpired period parole 23the magistrate made clear unexpired period parole commenced 25 july 2006 however magistrate failed regard period two month nine day appellant spent custody time arrest 17 may 2006 time sentence 25 july 2006 magistrate required regard period 3 required regard adjusting head sentence non parole period magistrate identifies error24on 8 august 2006 matter listed magistrate appears appellant solicitor requested magistrate list matter submission mr love appeared appellant suggested matter brought back magistrate upon motion unnecessary resolve question 25upon party attending magistrate said application defence counsel matter come fix head sentence non parole period due new information coming light set head sentence two year eight month twenty day non parole period twenty month commence 25 july 2006 26it unclear new information magistrate refers however seems informed failed regard period appellant spent custody prior sentence adjusted sentence reflects head sentence reduction two month nine day period custody arrest date sentence 27it unclear whether magistrate exercised power pursuant 76a 76b thesummary procedure act 1921 section 76a 76b act provides 76a power set aside conviction order 1 court may initiative application party set aside conviction order 2 application set aside conviction order section must made within 14 day applicant receives notice conviction order 3 court may set aside conviction order section satisfied party consent set aside b conviction order made error c interest justice set aside conviction order 4 court set aside conviction order section may without formality proceed hear proceeding conviction order made b adjourn proceeding subsequent hearing 28section 76b provides 76b correction conviction orderthe court may initiative application party correct error conviction order29upon considering magistrate reason appear invoked power 76a appear set aside earlier order heard matter done new sentence would commence 8 august 2006 position pursuant 75 correction act 31 2 sentencing act magistrate would regard longer period appellant spent custody time arrest 8 august 2006 done therefore acting 76a thesummary procedure act 1921 made error 30if magistrate purported correct error pursuant 76b act informed failed regard period spent custody setting sentence magistrate although adjusted head sentence appears overlooked consequent adjustment non parole period failing adjust non parole period failed regard time spent custody determining non parole period 31in regard consider made error 32there also doubt whether magistrate invoke 76b thesummary procedure act 1921to correct error nature identified application 76b subject consideration perry j intran v police 4 debelle j inpolice v alikaris 5 33intran defendant sentenced 18 december 1997 eighteen week imprisonment served cumulatively upon earlier sentence nine month imprisonment previously suspended offence received eighteen week imprisonment constituted breach suspended sentence nine month imprisonment activated sentence result defendant received total nine month eighteen week imprisonment non parole period nineteen month fixed 34on 15 july 1998 matter listed magistrate magistrate discovered 18 december 1996 defendant sentenced fact parole time commission offence received suspended sentence effect 75 1 b correction act rendered defendant liable serve unexpired balance previous sentence one year twenty five day 35the magistrate calling matter indicated intended correct error pursuant 76b thesummary procedure act 1921 magistrate amended sentence imposed 18 december 1997 regard additional period appellant required serve pursuant breach parole unnecessary go detail save say defendant appealed ground sentence manifestly excessive ground magistrate failed set non parole period 36one matter argued perry j whether magistrate empowered submitted wasfunctus officio perry j held 76b application order minuted held magistrate jurisdiction correct error perry j regard 9a sentencing act provides application director public prosecution court rectify error technical nature made sentencing court imposing sentence may correct deficiency remove ambiguity sentencing order 37perry j concluded overlap 9a sentencing act 76b thesummary procedure act 1921 concluded section remedial reason court exercise jurisdiction conferred one subsection accordance whichever seems convenient 6 38inalikaris 7 debelle j considered whether magistrate power revoke sentence previously ordered substitute order defendant convicted without penalty debelle j referred s 76a 76b thesummary procedure act 1921 referred decision ofmuscat v magistrate court 8 authority proposition magistrate able make order pursuant section 76a 76b notwithstanding isfunctus officio debelle j said magistrate made order effectively exercise sentencing discretion afresh ordering entirely different penalty reconsidering later decision sense rectifying earlier order correcting error order making entirely fresh order section 76b authorise later order considering order made informed offence committed defendant parole necessary magistrate consider matter whether defendant failing respond leniency period spent custody seriousness offence committed whilst parole regard totality principle fixing penalty new non parol period recite factor affect sentencing discretion demonstrate sense reconsideration penalty upon informed matter mere exercise slip rule 9 39the power court 76a wider power vested court 76b pursuant 76a court set aside conviction order section 76b widely expressed applicable correct error conviction order 76a wider power condition satisfied may exercised particular may exercised application made within 14 day original order 40intran perry j held 76b could used correct order made magistrate informed fact offence committed whilst defendant parole whilst agree perry j 76a 76b remedial legislation receive liberal construction respectfully disagree 76b used sentence defendant agree debelle j 76a permit magistrate call order sentence afresh section 76b limited correction technical clinical error 41in view 76b cannot applied manner magistrate purported apply even view incorrect magistrate error regard time spent custody setting non parole period made adjustment give effect period served custody pending sentence sentencing42in view foregoing appeal allowed sentence imposed magistrate must set aside appellant sentenced propose sentence appellant effective date relevant information provided 43by consent appellant tendered three letter first letter written mr michael clements employer appellant time offence committed mr clements state partly blame position appellant found day apprehended appellant working mr clements speaks highly work ethic mr clements state usually would pick appellant knew parole taken appellant parole officer several occasion 44on day question mr clements ill told appellant find way work concerned insistence appellant find way work appellant committed offence loyalty employer mr clements indicated feel responsible appellant custody appellant making supreme effort change life making progress indicated appellant job available upon release 45i received handwritten letter typewritten letter appellant indicates time making every effort change lifestyle regular employment fiancé want settle mother ill fiancé looking wish reunited put life track 46the sentence four month imprisonment offence driving whilst disqualified given appellant prior record view merciful today appellant spent five month custody time arrest regard period appellant spent custody situation demonstrates problem arises person spent time custody greater sentence required serve regard time spent custody order conviction without penalty already served one month sentence originally imposed make order would trigger requirement serve unexpired period parole would matter parole board determine whether revoke appellant parole determine released intention magistrate intention 47i therefore impose sentence one day imprisonment respect offence driving whilst disqualified 48pursuant 75 thecorrections act imposed custodial sentence one day appellant becomes liable serve unexpired period parole two year six month twenty nine day required set non parole period respect total sentence two year six month thirty day 49i regard submission made appellant counsel correspondence appellant employer 50there seems hope appellant may last realised offending breaching parole result lengthier term imprisonment life spent gaol 51at time offence appellant employment settled partner wish marry committed offence circumstance explained although offence deliberate appellant attempting get place employment 52i consider appropriate set non parole period substantially le period required serve order give one last chance live meaningful life set notional non parole period six month however still brought account five month appellant custody therefore reduce notional non parole period one month 53the effect judgment follows appeal allowed 1 sentence magistrate set aside 2 appellant sentenced today term imprisonment one day offence driving whilst disqualified 3 operation 75 thecorrections act appellant liable serve today unexpired period parole two year six month twenty nine day 4 operation 31 thesentencing act sentence one day imprisonment served expiration period unexpired parole 5 result total period imprisonment served appellant two year six month thirty day 6 pursuant 31 2 thesentencing act non parole period respect total sentence fixed one month 54in respect offence driving unregistered vehicle recorded conviction without penalty 1 2005 sasc 287 2005 92 sasr 400 2 2005 sasc 287 2005 92 sasr 400 405 18 3 seer v czubak 2005 sasc 287 2005 92 sasr 400 4 1998 sasc s6891 5 2000 sasc 163 6 tran v police 1998 sasc s6891 15 7 2000 sasc 163 8 1996 sasc 5551 1997 66 sasr 367 9 2000 sasc 163 12
George Maitland v Royal Blind Society of New South Wales [2004] NSWIRComm 368 (8 December 2004).txt	george maitland v royal blind society new south wale 2004 nswircomm 368 8 december 2004 last updated 20 december 2004new south wale industrial relation commissioncitation george maitland v royal blind society new south wale 2004 nswircomm 368file number irc 4472hearing date 24 11 2004decision date 08 12 2004parties appellantgeorge ross maitlandrespondentroyal blind society new south walesjudgment boland j backman j macdonald clegal representativesappellantmr g r maitland personrespondentagent mr r grahamms k purcellroyal blind societycases cited burge v nsw bhp steel pty ltd 2001 nswircomm 117 2001 105 ir 325devries v australian national railway commission 1993 177 clr 472humphries v cootamundra ex service citizen memorial club limited 2003 nswircomm 211franklins ltd v webb 1996 72 ir 257outboard world pty ltd budget waste control sydney v muir 1993 51 ir 167wilson v department education training 2000 nswircomm 20 2000 100 ir 1legislation cited industrial relation act 1996judgment industrial relation commission new south walesfull benchcoram boland jbackman jmacdonald cwednesday 8 december 2004matter irc 4472 2004george ross maitland v royal blind society new south walesapplication george ross maitland leave appeal appeal decision commissioner mcleay given 9 july 2004 matter irc 6469 2003decision commission 2004 nswircomm 3681 george ross maitland dismissed employment royal blind society new south wale rb 28 october 2003 reason relating alleged sexual harassment fellow employee m stephanie kain mr maitland applied relief pursuant tos 84of theindustrial relation act1996
Queensland Marine Holdings Pty Ltd t_a Brisbane Marine Pilots re Brisbane Pilot Service - Launch Vessels Enterprise Agreement 2010 [2010] FWAA 5354 (20 July 2010).txt	queensland marine holding pty ltd brisbane marine pilot brisbane pilot service launch vessel enterprise agreement 2010 2010 fwaa 5354 20 july 2010 fair work australiadecisionfair work act 2009s 185 approval enterprise agreementqueensland marine holding pty ltd brisbane marine pilot ag2010 11742 brisbane pilot service launch vessel enterprise agreement 2010 maritime industrycommissioner raffaellisydney 20 july 2010application approval brisbane pilot service launch vessel enterprise agreement 2010 1 application made approval enterprise agreement known thebrisbane pilot service launch vessel enterprise agreement 2010 agreement application made pursuant tos 185of thefair work act 2009 act agreement single enterprise agreement 2 satisfied requirement ofss186 187and188as relevant application approval met 3 theaustralian maritime officer union bargaining representative agreement given notice unders 183of act want agreement cover accordance withs 201 2 note agreement cover organisation 4 agreement approved accordance withs 54 operate 27 july 2010 nominal expiry date agreement 26 july 2013 commissionerprinted authority commonwealth government printer price code c ae879215 pr999473
Negus v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 14 (10 February 2010).txt	negus v chief executive department employment economic development innovation 2010 qcat 14 10 february 2010 last updated 11 february 2010citation negus v chief executive department employment economic development innovation 2010 qcat 14parties rob negusvchief executive department employment economic development innovationapplication number fhr043 09matter type general administrative review mattershearing date 10 february 2010heard papersdecision m susan booth senior memberdelivered 10 february 2010delivered brisbaneorders made application legal representation dismissedcatchwords section 43 ofqueensland civil administrative tribunal act 2009appearances representation hearing took place paper absence party reason decisionhistory applicationan application made fishery tribunal 13 july 2009 rob negus applicant appealing decision made thefisheries act1994