Hii v The Commissioner of Taxation of the Commonwealth of Australia

The applicant, Mr Hii, a Malaysian citizen, sought constitutional or other writs from the High Court of Australia against the Commissioner of Taxation. The dispute concerned the Commissioner's Audit Decision of 26 June 2012, which found Mr Hii to be an Australian resident for tax purposes for the income years 2001 to 2009 and determined that his conduct amounted to tax evasion for several of those years. The Commissioner's findings of residency were based on ordinary concepts, supported by numerous factual findings including Mr Hii's permanent residency status, a resident return visa, a Queensland driver's licence, property ownership in Queensland, his family's residence in Australia, his children's schooling in Queensland, numerous Australian bank accounts, and his departure cards indicating he was an "Australian resident departing temporarily". Following the Audit Decision, the Commissioner issued substantial tax and penalty assessments. An objection decision on 20 December 2013 affirmed the residency and evasion findings but partially allowed the objection, reducing the tax and penalties.

The legal issues before the High Court were whether the Commissioner's decisions involved jurisdictional errors of law, including misconstruction of the legislative scheme concerning residence, a failure to take account of relevant considerations, denial of natural justice, legal unreasonableness, and errors relating to domicile and the number of days spent in Australia. Mr Hii also alleged that the decisions were made in bad faith and that the Commissioner had not re-formed his opinion concerning fraud and evasion. The application sought writs of certiorari to quash the Audit and Objection Decisions, a writ of mandamus, and declarations.

Edelman J dismissed Mr Hii's application, refusing an extension of time under rule 4.02 of the High Court Rules 2004 (Cth) and dismissing the application under rule 25.09.1. The Court found that the application for certiorari was significantly out of time, with delays measured in years rather than months, and that no exceptional circumstances justified an extension. Furthermore, the Court held that the grounds raised by Mr Hii were matters that either were, or could have been, litigated in prior proceedings before the Federal Court, including proceedings under section 39B of the Judiciary Act 1903 (Cth) and appeals under Part IVC of the Taxation Administration Act 1953 (Cth). The Court concluded that it would be an abuse of process for Mr Hii to seek to bypass the established review and appeal procedures by bringing an application in the High Court's original jurisdiction years after the relevant decisions. Consequently, Mr Hii was ordered to pay the Commissioner's costs.