Nemuseso v MIAC

[2010] FMCA 957

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NEMUSESO v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 957

MIGRATION – Review of a decision of the Migration Review Tribunal – whether the Tribunal was wrong to find that it did not have jurisdiction to review the delegate’s decision because the application for review was made out of time – whether the applicant was properly notified of the delegate’s decision – question of when time limits start from proper notification – whether the Tribunal failed to provide procedural fairness – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.5, 5E, 66, 347, 348, 360, 474, 476, 494B, 494C, 494D
Federal Magistrates Court Rules 2001 (Cth), r.44
Migration Regulations 1994 (Cth), reg.2.16, 4.02, 4.10, Sch.2
Administrative Decisions (Judicial Review) Act1977 (Cth), s.5, Sch.1

Hasan v Minister for Immigration & Citizenship [2010] FCA 375
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Tubbo Pty Ltd v Minister Administering the Water Management Act 2000
Harvey v Minister Administering the Water Management Act 2000 [2008] NSWCA 356
O’Sullivan v Repatriation Commission [2003] FCA 387; 128 FCR 590
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
International Finance Trust Company Limited & Anor v New South Wales Crime Commission [2008] NSWCA 291
International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49
Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180
Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172
Murphy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 657; (2004) 135 FCR 550
Tay v Minister for Immigration & Citizenship [2010] FCAFC 23
Minister for Immigration & Citizenship v Abdul Manaf [2009] FCA 963
Manaf & Anor v Minister for Immigration & Anor [2009] FMCA 139

Applicant: ELTON TAWANDA NEMUSESO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1652 of 2010

Judgment of: Nicholls FM

Hearing date: 1 September 2010

Date of Last Submission: 1 September 2010

Delivered at: Sydney

Delivered on: 9 December 2010

REPRESENTATION

Appearing for the Applicant: Mr C Lindo

Solicitors for the Applicant: Macarthur Law Group

Appearing for the Respondents: Ms K Hooper

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application made on 28 July 2010 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $2,935.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1652 of 2010

ELTON TAWANDA NEMUSESO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 28 July 2010 under s.476 of the Migration Act 1958 (Cth) (“the Act”). The applicant seeks an order that the respondents show cause as to why the relief sought should not be granted in relation to the decision of the Migration Review Tribunal (“the Tribunal”) made on 6 July 2010 which found that it did not have jurisdiction to review the decision of a delegate of the first respondent to refuse a Child (Residence) visa to the applicant.

2. At the show cause hearing (pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 (Cth)) Mr C Lindo appeared for the applicant, Mr E.T. Nemuseso. Ms K Hooper appeared for the respondents.

3. Mr Lindo sought leave to read the affidavit (with annexures) of Mr Nemuseso sworn on 26 July 2010. The respondent objected on the basis of relevance (see [17] below). Read into evidence before the Court was the affidavit of Ms Katherine Nicole Hooper of 27 August 2010 with a bundle of relevant documents annexed (annexure to Affidavit of Katherine Hooper: “AKH”).

4. In essence the applicant’s complaint before the Court is that the Tribunal was wrong to find that it did not have jurisdiction to review the delegate’s decision because the application for review to it was made out of time. The Tribunal found that the applicant had been properly notified of the decision to refuse him the visa, that relevant time limits applied from that proper notification, and that it had no discretion to exercise jurisdiction where an application to it was made out of time.

Background

1. Mr Nemuseso is a citizen of Zimbabwe. He applied for a child residence visa on 19 December 2008. At that time he was 28 years old. Relevantly he gave as his address for correspondence his residential address in Randwick NSW (AKH 10). He was sponsored for this visa by his mother, who is an Australian citizen (AKH 25 to AKH 32).

The Delegate

1. The application was refused by the Minister’s delegate on 1 March 2010 (AKH 34 to AKH 47). In essence the delegate found that the applicant was not able to meet any of the relevant prescribed primary criteria for this class of visa (subclass 837 – Sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”)).

2. Notification of this decision was sent by registered post to the address provided in his application as the address for correspondence (Randwick NSW). This was dated 1 March 2010 (AKH 34). It was sent on 2 March 2010 (AKH 103).

3. On the evidence available, this appears to have been returned to the Minister’s department by Australian Post as “unclaimed” on 15 April 2010 (AKH 49).

The Tribunal

1. An application for review was made to the Tribunal on 10 May 2010 (AKH 53 to AKH 60). Lawyers representing the applicant explained in a covering letter that the application was out of time, but that the applicant had not received notice of the delegate’s decision.

2. This was said to be because the notice had been sent to the applicant’s previous address. It was only when his employer told him that he was an “illegal immigrant” that he contacted the Minister’s department and was told the letter had gone to a “different address” (AKH 51).

3. The Tribunal considered the relevant law ([6] to [12] at AKH 132 to AKH 133):

   1)The Tribunal’s jurisdiction is engaged if an application is properly made for review of a Migration Review Tribunal (MRT) reviewable decision (ss.347 and 348 of the Act, reg.4.02(4) of the Regulations).

   2)An application relevant to the applicant’s circumstances must be made no later than 21 days after the day on which notice is received (s.347(1)(b)(i) of the Act and reg.4.10(1)(a) of the Regulations).

   3)An application for review may only be made once this prescribed period has commenced (Hasan v Minister for Immigration & Citizenship [2010] FCA 375).

   4)The time of notification provides the reference point for the commencement of the prescribed period.

4. The Tribunal considered the provisions of ss. 66, 494B, 494C, 494D of the Act and reg.2.16 of the Regulations.

5. It found that:

   1)The applicant was seeking review of an MRT reviewable decision.

   2)The applicable period for the making of such an application was 21 days starting when the applicant was validly notified of the delegate’s decision.

   3)The delegate’s letter of notification complied with the requirements of s.66(2).

   4)The decision notice was sent by prepaid registered post within 3 working days of its date.

   5)The applicant had not given the Minister notice of any authorised recipient of correspondence (s.494D).

   6)The letter had been sent to the last address for service provided by the applicant to the Minister for the purpose of receiving correspondence. Given the relevant statutory and regulatory scheme, although the letter was returned as “unclaimed”, the applicant was taken to have received it 7 working days after the date of the notice.

   7)The submissions made by the applicant’s lawyers did not provide any basis for accepting the application for review which was lodged outside the prescribed period.

   8)There was no provision for any extension of time.

   9)The decision to refuse was made on 1 March 2010. It was sent on 2 March 2010. The applicant did “update the Respondent with a new residential address… on 20 May 2010”. However, as this was after 1 March 2010, at the relevant time the notification letter was sent to the last address for service provided at that time.

6. The Tribunal reasoned:

   “The Tribunal finds that the decision notice was correctly sent in accordance with s.494B(4) and therefore, the applicant is taken to have received the decision notice 7 working days after the date of the document: s.494C(4)(a). This is so whether or not the applicant actually received the notice. Section 494C(4) does not create a rebuttable presumption that may be disproved by evidence to the contrary. As the Tribunal finds the delegate of the Minister did not make an error in giving the decision notice to the applicant in accordance with the method specified in s.494B, it finds that s.494C(7) does not apply in the circumstances. Accordingly, the Tribunal finds that the prescribed period for lodging an application for review commenced on the day when the applicant is taken to have been notified of the delegate’s decision on 10 March 2010.

   The Tribunal finds that the applicant was properly notified of the delegate’s decision and is taken to have been notified on 10 March 2010. Therefore, the prescribed period of 21 days within which the application for review could be lodged ended on 31 March 2010.”

7. The Tribunal found it had no jurisdiction to conduct the review because in the circumstances the application for review was made after the prescribed period had expired.

Before the Court

1. The issue for consideration before the Court is whether the applicant was properly notified of the delegate’s decision such that the Tribunal’s reasoning and finding that it had no jurisdiction was not infected with legal error.

2. The applicant’s affidavit for the most part does not address this issue. Those parts of the affidavit and the annexures to which they refer (for example his health situation) are not read into evidence. But I did consider them in the nature of submissions.

3. Those parts which seek to address his residential situation ([8] to [10] of the applicant’s affidavit) do not, for the reasons set out below, ultimately assist the applicant.

Consideration

1. In submissions before the Court, Mr Lindo sought to rely of s.5 of the Administrative Decisions (Judicial Review) Act1977 (Cth) (“AD(JR) Act”) to generally argue that the complaints before the Court should be understood as complaints of a denial of natural justice.

2. To the extent that the applicant relies on the AD(JR) Act, then that Act does not apply to a privative clause or purported privative clause decision within the meaning of s.474(2) or s.5E of the Act (Sch.1 to the AD(JR) Act). The Tribunal’s decision is not a decision to which the AD(JR) Act applies.

3. Mr Lindo also sought to rely on common law procedural fairness principles that were said to have emanated from Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (“Kioa”). His argument was that the common law includes a “right to intervene” to prevent the injustice occasioned in the current case.

4. In particular, this was said to apply to the concept that the applicant was “deemed” to have been notified of the delegate’s decision when in fact he was not.

5. He referred the Court to Tubbo Pty Ltd v Minister Administering the Water Management Act 2000; Harvey v Minister Administering the Water Management Act 2000 [2008] NSWCA 356 (at [54] and [63] (per Spigelman CJ, with whom Allsop P and Sackville AJA agreed) for the proposition (said to be derived from the approach of Mason J in Kioa) that procedural fairness requires the Tribunal in the current case to adopt a more flexible approach than it did, and should have adopted fair procedures. Mr Lindo emphasised that this authority stood for the proposition that a statutory power must be exercised fairly.

6. In short, that it was unfair for the Tribunal to find that it had no jurisdiction in the circumstances where the applicant did not receive the notification until he visited the department whereupon he acted in a timely fashion to make his application for review.

7. It is the case that one of the tasks of the Tribunal is to ensure the observance of procedural fairness. (See for example O’Sullivan v Repatriation Commission [2003] FCA 387; 128 FCR 590 at [47].) As the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515 and Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1.) The Tribunal is concerned with fair procedures. Although the completion of that principle as expressed in relevant authorities is that its obligation does not extend necessarily to a fair outcome. This provides in the circumstances a partial answer to the complaint. All of the authorities are focused on the relevant decision maker’s procedural fairness obligations in reaching that decision.

8. In the current case before the Tribunal, the applicant should have been plainly on notice (through his lawyers who made submissions on his behalf) that the relevant issue was not about the exercise of any discretion (no discretion was available to the Tribunal), but whether the Tribunal had been given the jurisdiction by the Parliament to engage in the conduct of the review. In other words to exercise only the jurisdiction which had been given to it.

9. The applicant’s submissions before the Tribunal and now appear to ignore the relevant statutory scheme put in place by the Parliament. It may indeed in some broader sense be said to be unfair that an applicant who did not actually receive the notification is thereby denied the opportunity for review.

10. But in the circumstances such a complaint is better directed to the Parliament, and not the Court. Nor, to the Tribunal, which is plainly bound by the applicable law.

11. Mr Lindo also submitted that a failure to review was a failure to provide procedural fairness. He relied on International Finance Trust Company Limited & Anor v New South Wales Crime Commission [2008] NSWCA 291 at [54]. This case was provided to the Court by the applicant’s solicitors. It appears, however, that the authority sought to be relied on was International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49 at [54].

12. Whichever authority, it does not assist the applicant. It is the case that the Tribunal must be impartial in the conduct of proceedings before it, in the sense that it must bring an open mind to bear on the issues to be resolved. The applicant’s argument however appears to be that the Tribunal failed to provide the applicant with an opportunity to be heard in the sense of being heard on the issues arising in relation to the review. (Although the complaint was pitched to a wider spectrum than just a failure pursuant to s.360 of the Act.) That is, the failure of procedural fairness was said to be the failure to engage in the review.

13. The problem for the applicant is that unless the Tribunal’s jurisdiction is engaged it cannot, and should not, enter into the conduct of any review. It would be acting without power if it purported to do so. Further, in the circumstances it cannot be compelled to do so.

14. Mr Lindo also relied on Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180 for the proposition that if legislation is silent as to the Tribunal’s discretion, then the principles of procedural fairness at common law should “intervene”. The argument was that the legislation is silent in this regard and the Tribunal therefore should have exercised a discretion to conduct the review.

15. There are a number of answers to this argument. One critical and central response will suffice. The legislation is not silent in this regard. Section 347 of the Act plainly sets out the circumstances that, if satisfied, compel the Tribunal to review the delegate’s decision (s.348).

16. In the current circumstances, the Tribunal made findings of fact which were open to it and which are not in themselves disputed by the applicant, that led it, if not compelled it, to find that given that the application was not made within the prescribed period, the application did not meet the requirements of s.347(1)(b). In these circumstances the Tribunal had no jurisdiction to proceed.

17. It is a matter of some concern that the applicant’s solicitors sought to rely (in the main) on general principles said to be taken from cases before the Supreme Court of NSW, but failed to mention even one of a large number of Federal Court cases, all of which are binding on this Court, which deal specifically with the issue raised in the current case, and the specific relevant provisions involved.

18. In Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 (“Xie”) the Full Federal Court (Spender, Kiefel and Dowsett JJ) was concerned with circumstances where an applicant had given an address for service to the Minister in an application for a visa, where a delegate had refused that application and sent the notification of that decision to that address, and where an application for review to the MRT was found not to be lodged within the prescribed time. Review was refused (at [3]).

19. The Court considered that s.347(1)(b)(i) applied to the Tribunal’s decision (at [4]). As in the current case, the relevant letter of notification was sent in circumstances such as to satisfy s.494B(4)(c), which details methods by which documents, including the letter of notification, can be given to a recipient. Just so in the current circumstances.

20. The Court considered the relevant statutory and regulatory scheme including s.494C, and agreed with Spender J in Murphy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 657; (2004) 135 FCR 550 (“Murphy”) at ([14]):

    “The person is ‘taken to have received the document’, in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only ‘until the contrary is proved’.”

21. More recently, a Full Federal Court in Tay v Minister for Immigration & Citizenship [2010] FCAFC 23 (“Tay”) considered similar circumstances, and specifically the construction of s.494C and the decision in Xie (at [14] to [26]).

22. For current purposes what is clear is that in the relevant statutory context, s.494C(5) (in Tay) is similar in effect to s.494C(4) (as in the current case). In any event, the relevant wording: “… the person is taken to have received the documents…” is identical. This does not create a rebuttable presumption as contended by the applicant now. (See Tay at [24] to [25] Xie at [14], Murphy at [69].)

23. Section 5(23) of the Act provides:

    “To avoid doubt, in this Act is taken, when followed by the infinitive form of a verb, has the same force and effect as is deemed when followed by the infinitive form of that verb.”

24. In short, the applicant’s argument that the Tribunal had discretion to entertain the review in circumstances where the letter of notification complied with the statutory and regulatory requirements, but was not actually received by the applicant and this was known to the delegate because the letter was returned as “unclaimed”, must be rejected.

25. Once the delegate’s notification was found to have complied with the relevant statutory and regulatory provisions in the current circumstances, the Tribunal had no discretion but to find it had no jurisdiction when the Act otherwise conferring jurisdiction on it said it did not. The Tribunal’s findings of fact leading to its conclusion were all reasonably open to it to make. No error is revealed in the Tribunal’s approach.

Ground One

1. In ground one the applicant pleads that the Tribunal fell into error because it failed to find that the applicant was not properly notified. The particulars to this ground explain however that the applicant had organised “mail redirect” with Australia Post, but that no correspondence was received from the Minister’s department.

2. This ground cannot possibly succeed. Any arrangement that the applicant had with Australia Post does not fall within the ambit of s.494B. Any such arrangement is, in these circumstances, irrelevant as to whether the Minister fulfilled his obligation to properly notify the applicant of the refusal of the visa.

3. No error is revealed on the part of the Tribunal in this regard.

Ground Two

1. Ground two pleads that the Tribunal fell into error because it failed to exercise procedural fairness at general law. The particulars are that the first respondent acknowledged that the letter of notification had been returned “unclaimed”. The Tribunal’s error is said to be that it failed to consider that proper notice was not given, in circumstances where the first respondent knew that “proper notice” was not given.

2. This ground again confuses the concept of “actual notice” and equates it with “proper notice”. As set out above, the Minister can comply with the relevant statutory and regulatory scheme even where the applicant has not received actual notice. The words: “is taken to have received the document” as they variously appear in s.494C have, as is set out above, been the subject of judicial consideration. Those authorities are binding on me.

3. No rebuttable presumption is created in the circumstances such that the Tribunal can be said to have denied the applicant procedural fairness in failing to consider the circumstances of the letter being returned “unclaimed”.

4. It is important to note that after receiving the application for review the Tribunal wrote to the applicant by letter sent to his (then) authorised recipient (his lawyer) seeking his comments on whether in the circumstances his application was a “valid application”. The Tribunal squarely put to him that it appeared he was out of time (AKH 107 to AKH 110).

5. The lawyers responded on his behalf (AKH 111 to AKH 113). In essence their comments appear to be in the nature of the same complaints and submission now made before the Court.

6. The Tribunal considered these submissions (AKH 135 at [23] to [25]). There is no failure in procedural fairness where the Tribunal squarely put the applicant on notice of the critical issue, gave him an opportunity to comment, and considered that response. That the Tribunal found that his response did not alter the situation that the delegate had sent the notice to the last address for service provided for that purpose does not reveal a failure to provide procedural fairness or any other legal error on the part of the Tribunal.

Ground Three

1. Ground three pleads error on the part of the Tribunal because it failed to find the applicant was only notified of the decision when he attended at the Minister’s department on 6 May 2010. The particulars explain that this was after he became aware that an “error” had been made.

2. Again this ground confuses “proper notification” under the Act with “actual notification”. It also fails for the reasons set out above.

3. It could be said that the applicant also asserts that the departmental officer giving the applicant a copy of the notification when he subsequently attended at the department’s offices meant that the prescribed period re-commenced or commenced.

4. Such an argument does not succeed. In Minister for Immigration & Citizenship v Abdul Manaf [2009] FCA 963 Sundberg J was faced with circumstances relevantly similar to those in the current case. An applicant applied for a visa and gave an address for service. A decision was made refusing the application. Notification was sent to the address for service. About 2 weeks later the applicant advised the Minister’s department of a change of address. A copy of the notification was sent in response, but not to the address secondly notified. The first letter was returned to the department “unopened”. The second marked: “no such address” ([2] to [4]).

5. Nonetheless the applicant applied for review. The Tribunal in that case found that the application was made out of time. This was based on the first letter of notification having complied with all of the relevant statutory and regulatory requirements (at [5]).

6. On judicial review (Manaf & Anor v Minister for Immigration & Anor [2009] FMCA 139) the Federal Magistrate found that, having elected to re-notify, the first notification then became redundant, and in effect the prescribed time commenced with the second notification (at [6]).

7. On appeal the Court considered Xie, Murphy, and other decisions to the same relevant affect (at [23]):

   [“SZBMF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1427; (2005) 147 FCR 485; Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 64; SZJUA v Minister for Immigration and Cultural Affairs [2007] FCA 1184.”]

8. The Court found that the Minister’s argument that s.494C(4) had “… fully operated on the first notification letter before the [applicant] notified her change of address” (at [25]) was a strong case ([26]).

9. In the current case the circumstances are similar but for the “second” notification actually being given to the applicant. This does not affect the outcome. The “second” notification has no effect on the prescribed period so that the clock re-starts as to when the applicant can apply for review. So long as the first notification complies with the relevant statutory and regulatory scheme, “proper” notification ensues. This is what happened in the current case.

Grounds Four and Five

1. Grounds four and five do no more than repeat in different words the complaint in ground three.

2. Ground four asserts the second notification “superseded” the first. Ground five asserts that the Tribunal was in error in not finding the prescribed period commenced after the “proper” second notification.

3. These grounds do not succeed for the reasons already set out above.

Ground Six

1. Ground six pleads error on the part of the Tribunal because it did not take into account that the applicant, and his sponsor (his mother), had provided the Minister with an email address where the notification could have been sent. This was particularly in circumstances where the “first” notification had been returned as “unclaimed”.

2. To the extent that the complaint is that the applicant’s mother, his sponsor, provided an email address to which correspondence should or could be sent, then the obligation on the Minister is to notify the applicant of the decision on the visa application (s.66(1)) in the prescribed way, not his mother.

3. Any complaint that the letter should have been sent to the sponsor cannot succeed. Any complain that the letter of notification should have been sent to an email address provided by the sponsor also cannot succeed. Section 66(1) and s.494B provide that the letter must be sent to the applicant by any one of the methods specified in s.494B. In the circumstances this could only have included an email address provided by the applicant, who is the appropriate recipient of such correspondence (s.494B(5)(b)).

4. I note for the sake of completeness that the sponsor was not authorised by the applicant to receive any such correspondence in whatever manner of despatch (s.494D).

5. Mr Lindo submitted that the department was not bound to have sent the notification letter by email, but should have done so when the “first” letter was returned “unclaimed”. Had it done so the applicant would not have been deprived of review by the Tribunal.

6. While it was not specifically argued, I presumed that this was put as another example of the failure of procedural fairness at common law. In that regard the complaint fails for the reasons already set out above.

7. The applicant gave as his address for correspondence his residential address (AKH 10 at 16). He also agreed to the department otherwise communicating with him by email (AKH 11 at 18).

8. Mr Lindo submits that the department was not obliged to send the letter to the email address, but that it could have. This submission was not made to the Tribunal, but I cannot see that it can assist the applicant now.

9. The difficulty for the applicant is that the provisions of s.494B (as to the methods of communication) are alternatives. They are not cumulative, nor are they a list to be followed until actual notification has been achieved. The relevant scheme only requires the Minister to send the notification on the visa decision: “… by one of the methods specified in section 494B of the Act.” (Emphasis added.)

10. The notification was sent by one of those methods. That is, pursuant to s.494B(4). As set out above, all of the requirements of s.66(2) and s.494B(4) were met. The Minister complied with his obligation. In these circumstances it was open to the Tribunal to so find. No error is revealed in the Tribunal’s decision in this regard.

Conclusion

1. None of the grounds advanced by the applicant and his legal advisers reveal error in the Tribunal’s determination that it did not have jurisdiction to review the delegate’s decision.

2. The fundamental flaw undermining each of the applicant’s grounds and arguments is a significant misunderstanding, or ignorance, or, given the involvement of legal representatives, a wilful refusal to understand the relevant statutory and regulatory scheme.

3. It must be said that it is of concern that the applicant’s legal advisers for the most part sought to rely on NSW Supreme Court authorities of, at most, peripheral relevance to the issues at hand, while refusing even to acknowledge Full Federal Court authorities dealing directly with the central issue in this case.

4. In all, the Court therefore is not satisfied that the application made on 28 July 2010 has raised an arguable case for the relief sought. In these circumstances I make an order pursuant to r.44.12(1)(a) of this Court’s Rules dismissing the application.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  9 December 2010