Australian Nursing and Midwifery Federation v RSL Care RDNS Limited T/A Bolton Clarke
[2018] FWCFB 3807
•27 JUNE 2018
| [2018] FWCFB 3807 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Australian Nursing and Midwifery Federation
v
RSL Care RDNS Limited T/A Bolton Clarke
(C2018/1366)
VICE PRESIDENT CATANZARITI | SYDNEY, 27 JUNE 2018 |
Appeal against decision ([2018] FWC 776) of Deputy President Hamilton at Melbourne on 22 February 2018 in matter number AG2017/5007 – application for an order relating to instruments covering new employer and non-transferring employees – construction and application of s.319(3)
[1] The Australian Nursing and Midwifery Federation (ANMF) has lodged an appeal, for which permission is required, against a decision issued by Deputy President Hamilton on 22 February 2018, in which he dismissed the ANMF’s application for orders under s.319(1)(b) and (c) of the Fair Work Act 2009 (Act).
[2] On 19 November 2017, Royal District Nursing Society Ltd (RDNS) transferred its business to RSL Care RDNS Limited (Bolton Clarke). Bolton Clarke is a not-for-profit business that operates by obtaining funding from sources such as the federal and state governments to provide services to consumers.
[3] Prior to the transfer, RDNS and its employees were covered by the Royal District Nursing Service Ltd Victorian Operations Enterprise Agreement 2016 (RDNS Agreement),which is a ‘transferable instrument’ within the meaning of s.312 of the Act. Bolton Clarke and its employees were covered by the RSL Care Enterprise Agreement 2015 (RSL Agreement).
[4] Following the transfer, Bolton Clarke now undertakes the work of RDNS and employs employees formerly employed by RDNS (the transferring employees). By operation of s.313 the Act, the RDNS Agreement continues to cover the transferring employees. Other employees of Bolton Clarke (non-transferring employees) are covered by the RSL Agreement, in accordance with s.314 of the Act.
[5] On 24 October 2017, the ANMFapplied to the Fair Work Commission pursuant to s.319 of the Act for orders that the RDNS Agreement cover non-transferring employees of Bolton Clarke who perform ‘transferring work’ in the state of Victoria, and that the RSL Agreement not cover those employees. In the absence of the orders sought, the relevant non-transferring employees would continue to be covered by the RSL Agreement.
[6] The Deputy President dismissed the ANMF’s application. Pursuant to s.604 of the Act, the ANMF appeals the whole of the decision and relevant orders. 1
Permission to appeal
[7] An appeal under s.604 of the Act is an appeal by way of rehearing. The Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker. 2 There is no right to appeal and an appellant must seek the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is ‘in the public interest to do so’.Permission to appeal may otherwise be granted on discretionary grounds.
[8] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 3 In GlaxoSmithKline Australia Pty Ltd v Makin4 a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters... 5
[9] Other than the special case in s.604(2) of the Act, the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 6 It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.7 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.8
[10] The appeal in this matter puts at issue the correct approach to be adopted in relation to various matters that the Commission is required to take into account in deciding whether to make an order under s.319 of the Act. There is no Full Bench authority concerning this section. We agree with the ANMF that the public interest would be served by the Full Bench granting permission to appeal and considering the application of the provisions in question.
[11] Accordingly, we are satisfied that it is in the public interest that permission to appeal be granted, and we do so.
The appeal
[12] Section 319(1) confers on the Commission a discretion to make orders that transferable instruments cover, or not cover, a new employer and non-transferring employees. Section 319(3) specifies the seven matters that the Commission must take into account in determining whether to exercise its discretion under s.319(1). Any failure to do so is an abuse of discretion amounting to error. 9
[13] Three principal grounds of appeal are advanced, variously contending that the Deputy President erred in his approach to sections 319(3)(d), (e) and (g) respectively. The alleged errors are said to concern his Honour’s interpretation of the various provisions, as well as their application to the facts of the present matter.
Section 319(3)(d): negative impact on productivity
[14] Section 319(3)(d) of the Act states that, in deciding whether to make an order under s.319, the Commission must take into account ‘whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace.’ The union submits that the Deputy President misunderstood the term ‘productivity’, and that he wrongly characterised shift arrangements that affect labour costs as productivity issues. By doing so, the union says that he failed to apply the Full Bench authority on the meaning of the term ‘productivity’.
[15] The Full Bench in Schweppes Australia Pty Ltd v United Voice – Victoria Branch 10 drew a distinction between productivity (the conventional economic concept that compares the quantity of outputs relative to the quantity of inputs) and a reduction in unit labour costs. But this distinction should not be understood as a dichotomy.
[16] The Deputy President concluded that the making of the order sought by the union would have a negative impact on productivity. 11 He noted the facility in the RSL Agreement for the employer to roster employees for broken shifts, as well as for one hour shifts.12 The Deputy President stated that the lack of such provisions in the RDNS Agreement was an impediment to productivity, and relied on the evidence of Ms McGill and Mr Warwick. Ms McGill had stated that the company’s ability to have broken shifts and shifts of one hour provided greater flexibility in working hours. She said that without the capacity to have one hour shifts there would be clients that Bolton Clarke would not be able to service, because it is not possible to provide a funded service for one hour and pay an employee for a minimum of two hours, one of which is not funded.13
[17] It will be recalled that Bolton Clarke is a not-for-profit business that relies on funding from various government and other sources. Ms McGill said in her statement that, as a not-for-profit organisation, Bolton Clarke is wholly dependent on obtaining funding to provide services for customers and clients. The company has no independent sources of income. 14 Thus, when Ms McGill says that it is not possible to provide a funded service for one hour and pay an employee for a minimum of two, one of which is not worked, this is not a statement of a commercial preference; it is a statement of funding reality.
[18] The Deputy President rejected the union’s argument that this matter related simply to penalty rates and not to productivity, and noted that Ms McGill had said that the one hour provision in the RSL Agreement was used extensively. He agreed that there was clearly a cost issue associated with this provision, but recognised that it was not a cost issue alone because, should the RDNS Agreement apply, some services could not be provided. The Deputy President stated:
‘However, this issue is likely to be more complex than simply an issue of penalty rates because it goes to the organisation of work, with one employee being able to perform several one hour shifts for different clients instead of several employees, workers being able to perform split shifts, different rosters and the like.’ 15
[19] The union submitted that the fact that one employee provides one hour of care to a patient or client but does so at a cost of two hours’ wages is not a question of unit input, but is purely a question of the price of that input, and therefore it does not meet the definition of productivity affirmed by the Full Bench in Schweppes. But what of the scenario that Ms McGill said was very common, where an employee under the new agreement works a single hour shift? The evidence was that some clients could only be serviced with single hour shifts; and that such a rostering arrangement is not possible under the RDNS Agreement. The productivity comparison is between one hour of labour input for one hour of productive work, under the RSL Agreement, and zero hours’ input with no productive work under the RDNS Agreement. In such a case the suggestion that productivity is the same is not supportable.
[20] We do not identify any error in the Deputy President’s approach to s.319(3)(d) of the Act.
Section 319(3)(e): whether the new employer would incur significant economic disadvantage
[21] Section 319(3)(e) of the Act states that, in deciding whether to make an order under s.319, the Commission must take into account ‘whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer.’
[22] The union’s second ground of appeal contended that the Deputy President erred in his approach to s.319(3)(e) by applying it to the ‘RDNS business’ instead of to the ‘new employer’, as the section requires. 16 It submitted that the effect of the transferable instrument is to be measured on the ‘new employer’, and that the correct approach to s.319(3)(e) is to consider whether significant economic disadvantage will accrue to the new employer generally, taking into account its overall business activities. The union said that the Deputy President incorrectly limited his consideration of the question of ‘significant economic disadvantage’ to the ‘RDNS business.’
[23] The union further submitted that the Deputy President erred in fact by concluding that the making of an order would result in significant economic disadvantage to the respondent, as there was insufficient evidence for such a conclusion to have been reached. 17 It says that the employer is a business with an asset base of $1.2 billion and annual revenue of $484 million, and that the employer’s cost disadvantage associated with an order being made under s.319 of the Act amounted to between $1.45 million and $2.6 million per year, a small fraction of the company’s annual revenue.
[24] There is no doubt about the meaning of the words ‘new employer’. They connote the entire organisation – ‘the whole beast’, as it was put to us by the union’s counsel. They refer to the relevant employing entity that is the ‘new employer’ for the purposes of the definition of ‘transfer of business’ in s.311(1). There is no basis to read down the words ‘new employer’ to refer only to that part of the entity’s operations constituted by the transferred business. In the present case, the new employer is Bolton Clarke (RSL Care RDNS Limited), not the RDNS part of the business.
[25] The real question raised by the union’s appeal ground concerns not the construction of the words ‘new employer’, but the reference point for measurement of ‘significant economic disadvantage’ for the purposes of s.319(3)(e). Must the ‘significant economic disadvantage’ affect the new employer’s overall business, as the union contends?Or can the new employer incur ‘significant economic disadvantage’ that is confined to the transferred business?
[26] Although it invokes a broader secondary impact consequent upon the making of an order (‘whole-of-business significant economic disadvantage’), the union’s construction of s.319(3)(e) of the Act is narrower than that for which the company contends. The union’s interpretation precludes the possibility of the new employer incurring significant economic disadvantage unless the disadvantage affects the entirety of the new employer’s business. However, the subsection does not contain any indication of a limitation of this kind. It simply directs the Commission to consider ‘whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer’. It does not necessarily require the disadvantage to affect the overall economic position of the new employer.
[27] As a matter of ordinary language, a new employer may ‘incur economic disadvantage’ in respect of the transferred business. Such disadvantage may or may not be significant, depending on the circumstances. In assessing whether any economic disadvantage is significant, it is appropriate to look beyond the transferred business. For example, the immediate economic impact of an order in respect of the transferred business might be an increase in cost to the new employer such that it cannot immediately be run as a profitable enterprise. However, the transferred business, whilst loss-making in its own right, might contribute other economic benefits to the new employer, such as a strong brand, goodwill, an inroad into a new market or sector of the economy, or the possibility of other commercially symbiotic dynamics that could have a positive effect on the economic position of the new employer. Each case will turn on its own facts.
[28] The Commission’s evaluation of whether the new employer will incur significant economic disadvantage may be affected by its consideration of the other matters that s.319(3) of the Act requires it to take into account. For example, the Commission must take into account the nominal expiry date of any relevant enterprise agreement. In the present case, the RDNS Agreement passed its nominal expiry date on 1 June 2018. If an order were made under s.319, the RDNS Agreement would of course still apply to the non-transferring employees. However, it can more readily be replaced or terminated than an in-term agreement. Had the RDNS Agreement still had several years of nominal life to run, the effect of any disadvantage incurred from it by the new employer might have been magnified.
[29] The Deputy President’s conclusions in relation to his consideration of s.319(3)(e) are contained in the following paragraphs of his decision:
‘[49] Mr Warwick gave evidence that the RDNS agreement provides significantly higher costs of more than $15 an hour than the RSL agreement. He said that ‘the cost to serve exceeded the revenue received for the Victoria At Home Support business for almost all services provided.
[50] The applicant vigorously contested this evidence and quite properly raised a number of issues of methodology, including its consistency with earlier evidence about the breakdown of what ‘cost to serve’ measures, and the consistency of his evidence with that of Ms McGill and other issues. The applicant also submitted that the new employer has a large asset base and business, including a combined asset base of $1.2 billion, and annual revenue of $484 million. It was well able to cross subsidise. However, Mr Warwick’s evidence is also consistent to some degree with the agreed facts about differences in wage rates and conditions, which suggests that the RDNS agreement is significantly more expensive in wage rates and conditions. The totality of the evidence suggests that there would be a significant cost effect if the orders were granted, and it is difficult to dispute this given the agreed facts. The costs for the RDNS business appear to be significant overall, and there should not be an assumption that the overall business allows that to be ignored by cross subsidisation. There is no obligation on the new employer to cross subsidise. Ms McGill gave evidence that it had lost tenders at Western Hospital and Ambulance Victoria because of the costs of the RDNS agreement. Clearly higher costs are relevant and there is a significant economic disadvantage to the new employer.’ (Footnotes omitted)
[30] The union contended that the Deputy President impermissibly equated some additional cost of wages and conditions for non-transferring employees with ‘significant economic disadvantage’. In our view, he did not do so. Clearly s.319(3)(e) of the Act requires the establishment of more than some economic disadvantage, and that ‘significant’ economic disadvantage, according to its ordinary meaning, must be ‘important, notable, or consequential’. We accept that an increase in labour costs associated with the making of an order under s.319 of the Act is not necessarily sufficient to make out significant economic damage. However the Deputy President also referred to two other matters: Bolton Clarke cross-subsidising the RDNS business; and the fact that the company had lost tenders because of the application of the RDNS Agreement. 18
[31] In relation to the question of cross-subsidisation, the Deputy President stated that ‘there should not be an assumption that the overall business allows that (i.e. the costs for RDNS) to be ignored by cross subsidisation’. This statement simply addressed a proposition advanced by the union that a large business can simply fund, or cross-subsidise, a loss-make enterprise. As noted, Bolton Clarke is in fact dependent on funding, and it is unclear why a funder such as a government would contribute to the cross-subsidisation of an enterprise. Then in the following sentence, the Deputy President says that there is ‘no obligation on the new employer to cross subsidise’. The union submitted that the Deputy President wrongly determined that a requirement for ‘subsidisation’ was dispositive or indicative of ‘significant economic disadvantage’. However, the Deputy President did not say this. Rather, it appears that he took into account an apparently agreed understanding that Bolton Clarke would, if an order were made, need to cross-subsidise the RDNS business. This was a matter that he weighed in his assessment of whether the new employer had incurred significant economic disadvantage.
[32] The Deputy President’s second statement on the subject is simply a statement of fact – there is no obligation for an employer to cross-subsidise. The statement is not a decision-rule that equates cross-subsidisation with significant economic disadvantage. To adopt such a decision rule would be erroneous. The fact that the new employer may be required to cross-subsidise the transferred business is relevant to, but not dispositive of whether the new employer would incur significant economic disadvantage.
[33] In relation to the question of lost tenders, it is apparent that the contracts in question were the subject of bids by Bolton Clarke based on the current application of the RDNS Agreement, namely in relation to transferring employees. The bids were not lost because of the effect of any order under s.319 of the Act, because no such order had been made. Nor does it appear that it was the prospect of such an order being made and affecting non-transferring employees that was the cause of the bids being unsuccessful. Section 319(3)(e) of the Act asks whether the new employer would incur significant economic disadvantage ‘as a result of the transferable instrument covering the new employer’. Clearly the RDNS Agreement already covers Bolton Clarke, because of the effect of s.313 of the Act, in relation to transferring employees. But s.319 of the Act is concerned with the new employer incurring disadvantage as a result of the making of an order under that section; that is, disadvantage arising from a transferable instrument covering the new employer in relation to non-transferring employees. But it is not apparent what the additional effect of an order under s.319 would be in relation to the company’s ability to tender successfully for work. Presumably it will not be assisted by the RDNS Agreement applying also to non-transferring employees. But the extent of this is not evident.
[34] The known disadvantage associated with Bolton Clarke’s unsuccessful tenders is unrelated to any order the Commission might make. It is a disadvantage that arises from the operation of the Act, and the fact that transferring employees are covered by the RDNS Agreement. Without identifying the margin of further disadvantage, we do not see how the Deputy President could have concluded that the disadvantage to Bolton Clarke was significant economic damage, given that the loss of tenders appears to have been a factor weighing in his conclusion that there was significant economic disadvantage. The fact that Bolton Clarke has lost tenders because of the application of the RDNS Agreement is already a consideration that the Commission could take into account in deciding whether to exercise its discretion to make an order under s.319 of the Act; but it does not pertain to the mandatory consideration in s319(3)(e), namely whether the new employer would incur ‘significant economic disadvantage as a result of the transferable instrument covering the new employer’, consequent upon an order being made under s.319. In our view, the Deputy President’s reliance on lost tenders, without identifying the margin of aggravation that would arise from an order being made under s.319 of the Act, was an irrelevant consideration and constituted error of the kind in House v R. 19 It cannot safely be said that his Honour would have reached the same conclusion about the employer incurring significant economic disadvantage irrespective of this error.
[35] This conclusion is sufficient for us to dispose of the appeal in the union’s favour. However, we will deal with the final ground of appeal raised by the union.
Section 319(3)(g): the public interest
[36] The third ground of appeal contended that the Deputy President erred by failing to have regard to the mandatory consideration in s.319(3)(g) of the Act, namely the public interest. It says that the Deputy President correctly defined the public interest in his decision, 20 but that he proceeded to misapply it to the circumstances before him.
[37] The union submitted that the public interest is informed by the object of Part 2-8, found in s.309 of the Act, which includes the ‘protection of employees’ terms and conditions of employment under enterprise agreements’, as well as the interests of employers in running their enterprises efficiently. The union says that the Deputy President wrongly failed to take account of the interests of non-transferring employees in his assessment of the public interest, and instead concluded that both the RDNS and RSL agreements were ‘appropriate industrial standards’. 21 It contends that this is not a matter going to the protection of employees’ terms and conditions of employment, nor the capacity of employers to run their businesses efficiently.
[38] There is a logical difficulty with the contention that the terms and conditions of non-transferring employees would be protected by an order that their employment be subject to the RDNS Agreement. That instrument does not currently apply to them. It would make more sense to say that their terms and conditions would be enhanced by an order. Perhaps what is meant is that their abstract conditions of employment would be protected by an order under s.319. In any event, proceeding on the basis that the object of Part 2-8 contemplates some broader beneficence in respect of non-transferring employees, then the Deputy President’s conclusion that both instruments were ‘appropriate industrial standards’ is in our view a matter relevant to this object and hence to the public interest.
[39] The Deputy President concluded his consideration of the public interest as follows:
‘[58] It would not be appropriate to ignore the submissions of the new employer on the effects on employment and similar matters as part of consideration of the public interest, given the objects of the Act which refer to such matters albeit in aggregate. I also note the object of this Part, s.309, which amongst other things refers to balancing matters including ‘the interests of employers in running their enterprises efficiently’. Being cost effective is part of efficiency. Even if the applicant is correct in claiming that these issues are in whole or in part ‘private interests’ and do not overlap with the public interest as contemplated in Schweppes, and that I should ignore possible deleterious effects on employment levels, I am not persuaded that it is in the public interest to grant the application. If the application is not granted then the RSL agreement will continue to apply to new employees in transferring work, and that agreement is an appropriate industrial standard, and the award will also apply. Employees are protected. I accept, and the new employer should too, that it is understandable that the applicant seeks to campaign for the RDNS agreement terms to continue. The loss of more beneficial provisions in a business is an obvious area of union concern, even if it is by operation of the Act in s.314 rather than employer decision. However, that does not necessarily mean that the application should be granted.’
[40] We do not discern any error in the Deputy President’s conclusion. As the union acknowledged, he correctly defined the public interest. In our view, he then applied the concept to the relevant circumstances, considering relevant matters such as employment and the object of the Act, and reached a discretionary value judgment based on his assessment of those circumstances.
[41] The union ascribes error to the Deputy President’s statement that ‘being cost effective is part of efficiency’. It says that this runs counter to the concept of productivity considered in the Schweppes decision. But efficiency is different from productivity, and whilst it includes various factors, it is correct to say that cost is one of them. The Deputy President put it no more highly than this.
[42] The union submitted that the Deputy President impermissibly imposed an onus on it to establish that an order under s.319 of the Act would be in the public interest. There is no onus on the applicant to make good a submission on the public interest, although the applicant will have a practical interest in demonstrating that the various mandatory considerations point in favour of an order. But the Deputy President did not say that there was any onus on the applicant. Rather he said he was ‘not persuaded that it is in the public interest to grant the application’.
[43] Elsewhere the Act speaks of circumstances where a particular course is ‘in the public interest,’ whereas s.319(3)(g) simply lists, as a mandatory consideration, ‘the public interest’. The Commission’s task is not to consider whether an order under s.319 is in the public interest. However, read in context, the Deputy President’s words do not indicate a misapprehension that the applicant carried any onus. He did not say that the union had failed to persuade him of the public interest.
[44] Strictly speaking, a more accurately stated conclusion might have been that the Deputy President did not consider that the public interest favoured the granting of an order, avoiding the formulation ‘in the public interest’. However, this is not a matter of substance and does not reflect error. The reasons for decision subject to appeal are not to be construed ‘minutely and finely with an eye keenly attuned to the perception of error’. 22 On a fair reading of the decision, the Deputy President took into account public interest and found it did not tell in favour of the application.
[45] The third ground of appeal is therefore rejected.
Conclusion
[46] The decision was affected by the error we have identified above. The Deputy President took into account an irrelevant matter in the course of his consideration of s.319(3)(e). The appeal must be allowed.
[47] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The decision ([2018] FWC 776) is quashed.
(4) The ANMF’s application for orders under s.319is referred to Commissioner Wilson for rehearing.
VICE PRESIDENT
Appearances:
Mr E. White, of counsel, for the Appellant
Mr K. Herbert, of counsel, for the Respondent
Hearing details:
2018
Melbourne with video link to Brisbane and Canberra
16 May
Printed by authority of the Commonwealth Government Printer
<PR608509>
1 [2018] FWC 776; PR600158.
2 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
3 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services PtyLtd v Lawler and others (2011) 192 FCR 78 at [44] - [46].
4 [2010] FWAFB 5343, 197 IR 266.
5 Ibid at [27].
6 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26].
7 Wan v AIRC (2001) 116 FCR 481 at [30].
8 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
9 See Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39 per Mason J. Such an error is both jurisdictional error of the type described in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at [14], 179 and an error of the type described in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-505.
10 [2012] FWAFB 7858.
11 At [48].
12 At [47].
13 Witness statement of Ms McGill, paragraph 38.
14 Witness statement of Ms McGill, paragraphs 11-13.
15 At [47].
16 Notice of Appeal, paragraph 2.
17 Notice of Appeal, paragraphs 3 and 4.
18 Transcript of Proceedings dated 6 February 2018 at PN457-PN461.
19 [1936] 55 CLR 499.
20 Appellant’s submissions, paragraph 28; Decision at [52] and [53].
21 At [57].
22 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
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