Ultimate Vision Inventions Pty Ltd v Innovation and Science Australia

File number(s):

VID 836 of 2019

Judgment of:

WHEELAHAN J

Date of judgment:

24 May 2022

Catchwords:

ADMINISTRATIVE LAW – appeal under s 44 of the Administrative Appeals Tribunal Act 1976 (Cth) from a decision of the Administrative Appeals Tribunal which affirmed a decision that activities claimed to have been undertaken by the applicant did not satisfy the definition of R&D activities for the purpose of s 355-20 of the Income Tax Assessment Act 1997 (Cth) – where the Tribunal’s written reasons were in significant part adopted without attribution from the respondent’s written submissions to it – whether unattributed adoption of the respondent’s submissions demonstrates failure to undertake an independent review generally or specifically in relation to particular matters – whether administrative justice must appear to have been done – no jurisdictional error.

ADMINISTRATIVE LAW – whether arguments and evidence advanced by the applicant to the Tribunal were mandatory considerations that were not considered by the Tribunal – claims and assertions about factual matters made by the applicant are not properly characterised as mandatory considerations – whether the Tribunal ought to have sought further evidence from the applicant in the exercise of the Tribunal’s inquisitorial functions, or notified the applicant that its evidence was insufficient – the Tribunal undertook a permissible assessment of the submissions and evidence and made findings of fact on the relevant issues – in the circumstances, there was no obligation on the Tribunal to make further enquiries – no jurisdictional error.

ADMINISTRATIVE LAW – where the applicant made an application that the Tribunal hear claims for the 2014, 2015 and 2016 financial years together and where the Tribunal refused to include the 2016 year – whether the Tribunal failed to take into account a mandatory consideration, denied the applicant procedural fairness or acted unreasonably in excluding the 2016 year from the review – no such errors demonstrated.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 2, 2A, 2A(b) and (c), 2A(d), 6 and 7, 8(3), 11, 13, 30, 32(1), 33(1A), 33(1AA), 33(1AB), 33(2) and 2(A), 35, 39, 42A(5)(b), 43(1) and (2), 43(2B) and 44

Income Tax Assessment Act 1997 (Cth) ss 355-1, 355-5, 355-20, 355-25, 355-25(1), 355-25(1)(a), 355-25(1)(a)(ii) and (b), 355-30, 355-30(1), 355-35 and 355-705(1)

Industry Research and Development Act 1986 (Cth) ss 6, 27A, 27A(3), 27B and 27C, 27F(1), 27J, 27J(1), 27J(1)(c)(iii), 27K and 27L, 29, 30A, 30D and 30E

Industry Research and Development Amendment (Industry Innovation and Science Australia) Act 2021 (Cth), s 3

Tax Laws Amendment (Research and Development) Bill 2010 (Cth)

Commonwealth of Australia, Parliamentary Debates, Senate, 3 June 1975

Income Tax Rates Amendment (Research and Development) Bill 2010, Explanatory Memorandum

Cases cited:

Abebe v Commonwealth [1999] HCA 14; 197 CLR 510

C v B [2006] FamCA 513; 35 Fam LR 285

CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76

Coal of Queensland Pty Ltd v Innovation and Science Australia [2021] FCAFC 54; 285 FCR 286

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1974; 49 FCR 576

Commissioner for Railways (Qld) v Peters (1991) 24 NSWLR 407

Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577

Council of the Municipality of Randwick v Rutledge [1959] HCA 63; 102 CLR 54

DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 229

Director General of Social Services v Chaney [1980] FCA 87; 47 FLR 80

Doan v Minister for Home Affairs [2019] FCA 1172

Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39; 24 ALR 577

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 214 CLR 496

Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458

Fard v Secretary, Department of Immigration and Border Protection [2016] FCA 417

Federal Commissioner of Taxation v Primary Health Care Ltd [2017] FCAFC 131; 252 FCR 496

Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; 6 VR 1

Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123

Huluba v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 518

James v Surf Road Nominees Pty Ltd [2004] NSWCA 475

Juneja v Tax Practitioners Board [2017] FCA 908; 72 AAR 407

Li v Attorney-General for New South Wales [2019] NSWCA 95; 99 NSWLR 630

LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2011] FCA 1146; 127 ALD 27

LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 203 FCR 166

Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24

Minister For Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1

Minister for Immigration and Citizenship v Le [2007] FCA 1318; 164 FCR 151

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429

Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611

Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323

Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; 113 CLR 475

Moreton Resources Ltd v Innovation and Science Australia [2019] FCAFC 120; 271 FCR 211

Moreton Resources Ltd and Innovation and Science Australia (Taxation) [2018] AATA 3378

MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133; 234 FCR 154

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28

Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 46; 6 FCR 155

Pollard v Wilson [2010] NSWCA 68

Public Service Board of New South Wales v Osmond [1986] HCA 7; 159 CLR 656

R v Cockburn (1852) 16 QB 480

Re Control Investment Pty Ltd and Australian Broadcasting Tribunal [No 2] (1981) 3 ALD 88

Re JRL; ex parte CJL [1986] HCA 39; 161 CLR 342

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82

Repatriation Commission v Morris (1997) 79 FCR 455

Rodchompoo v Minister for Home Affairs [2018]...