Federal Court of Australia

Yara AB v Minister for Industry, Science and Technology [2022] FCA 847

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WIGNEY J:

1    Ammonium nitrate is a common industrial chemical which has a number of uses. In Australia it is typically used as a raw material in the production of explosives used in the mining and quarrying industries. The market for ammonium nitrate in Australia was, at least until recent times, supplied by both Australian producers and by imports from several countries, including the People’s Republic of China, Sweden and the Kingdom of Thailand. The applicant in this proceeding, Yara AB, is a company the business of which included exporting ammonium nitrate from Sweden to Australia. On 3 August 2020, the first respondent, the Minister for Industry, Science and Technology, decided to affirm her earlier decision to declare that s 8 of the Customs Tariff (Anti-Dumping) Act 1975 (Cth) (Dumping Duty Act) applied to ammonium nitrate exported to Australia. That declaration was made pursuant to s 269TG of the Customs Act 1901 (Cth). Its effect was that a special duty of customs, known as a “dumping duty”, was imposed on exports of ammonium nitrate and similar goods, including exports from Sweden.

2    Yara was aggrieved by the Minister’s decision. It ceased exporting ammonium nitrate to Australia essentially because the imposition of the dumping duty made that business uneconomic. It sought judicial review of the Minister’s decision pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and s 39B of the Judiciary Act 1903 (Cth). Yara claimed that the decision involved errors of law, was not authorised by s 269TG of the Customs Act, was an improper exercise of power, involved an unreasonable exercise of the Minister’s discretion, and that procedures required by law to be observed in connection with the making of the decision were not observed. It sought, among other things, an order quashing or setting aside the decision and an order remitting the matter to the Minister for redetermination according to law.

3    Resolution of Yara’s challenge to the Minister’s decision to affirm her earlier decision to impose a dumping duty on relevant exports of ammonium nitrate requires a deep dive into the murky and mysterious waters of pt XVB of the Customs Act. Part XVB establishes an elaborate and labyrinthine scheme for determining when “anti-dumping measures” can be taken by the Minister. Under the scheme, the Minister generally acts on the recommendation of a specially established commission and commissioner, or a specially established review panel which is empowered to review decisions of both the commissioner and the Minister.

4    Yara’s challenge to the Minister’s decision to impose a dumping duty on exports of ammonium nitrate focussed on the reasons given by the commissioner and the review panel for recommending to the Minister that the duty be imposed. It raises a number of issues about the meaning and operation of various aspects of the statutory scheme, including the nature of the review conducted by the review panel.

THE STATUTORY SCHEME IN RELATION TO DUMPING DUTY

5    Part XVB of the Customs Act “deals with the taking of anti-dumping measures in respect of goods whose importation into Australia involves a dumping or countervailable subsidisation of those goods that injures, or threatens to injure, Australian industry”: s 269SM(1) of the Customs Act. One of the anti-dumping measures that can be taken is the publication of a dumping duties notice under s 269TG of the Customs Act.

Dumping duty notices

6    Subsections 269TG(1) and (2) of the Customs Act provide as follows:

(1)    Subject to section 269TN, where the Minister is satisfied, as to any goods that have been exported to Australia, that:

(a)    the amount of the export price of the goods is less than the amount of the normal value of those goods; and

   (b)    because of that:

(i)    material injury to an Australian industry producing like goods has been or is being caused or is threatened, or the establishment of an Australian industry producing like goods has been or may be materially hindered; or

(ii)    in a case where security has been taken under section 42 in respect of any interim duty that may become payable on the goods under section 8 of the Dumping Duty Act—material injury to an Australian industry producing like goods would or might have been caused if the security had not been taken;

      the Minister may, by public notice, declare that section 8 of that Act applies:

(c)    to the goods in respect of which the Minister is so satisfied; and

(d)    to like goods that were exported to Australia after the Commissioner made a preliminary affirmative determination under section 269TD in respect of the goods referred to in paragraph (c) but before the publication of that notice.

(2)    Where the Minister is satisfied, as to goods of any kind, that:

(a)    the amount of the export price of like goods that have already been exported to Australia is less than the amount of the normal value of those goods, and the amount of the export price of like goods that may be exported to Australia in the future may be less than the normal value of the goods; and

(b)    because of that, material injury to an Australian industry producing like goods has been or is being caused or is threatened, or the establishment of an Australian industry producing like goods has been or may be materially hindered;

the Minister may, by public notice (whether or not he or she has made, or proposes to make, a declaration under subsection (1) in respect of like goods that have been exported to Australia), declare that section 8 of the Dumping Duty Act applies to like goods that are exported to Australia after the date of publication of the notice or such later date as is specified in the notice.

7    The publication of a notice under s 269TG(1) and (2) “creates a liability under the Dumping Duty Act, in relation to any goods to which the notice extends, to pay a special duty of customs on their importation into Australia and, pending assessment of that special duty, to pay interim duty”: s 269SM(2) of the Customs Act. Subsections 8(2) and (3) of the Dumping Duty Act provide as follows:

(2)    There is imposed, and there must be collected and paid, on goods:

(a)    to which this section applies by virtue of a notice under subsection 269TG(1) or (2) of the Customs Act; and

(b)    in relation to which the amount of the export price is less than the amount of the normal value;

a special duty of Customs, to be known as dumping duty, calculated in accordance with subsection (6).

(3)    Pending final assessment of the dumping duty payable on goods the subject of a notice under subsection 269TG(1) or (2) of the Customs Act, an interim dumping duty is payable on those goods.

The statutory scheme in relation to decisions about dumping duty notices

8    The statutory scheme in pt XVB of the Customs Act in relation to decisions about dumping duty notices is lengthy, convoluted and highly prescriptive.

9    Relevantly, and by way of overview, divs 1, 2 and 3 of pt XVB of the Customs Act “deal with the preliminary and procedural matters leading to a Ministerial decision to publish or not to publish a dumping duty notice”: s 269SM(3) of the Customs Act. Division 1A establishes the Anti-Dumping Commission and empowers the Commissioner of the Anti-Dumping Commission to “do all things necessary or convenient to be done for or in connection with the performance of his or her functions”: s 269SMG of the Customs Act. Divisions 8 and 9 establish an independent review panel, the Anti-Dumping Review Panel, and provide for the Panel to review a range of Ministerial decisions (including, relevantly, decisions to publish or not publish dumping duty notices), as well as a range of decisions made by the Commissioner: s 269SM(9) of the Customs Act.

10    It is necessary to delve into the detail of the provisions in divs 1, 2, 8 and 9 of pt XVB of the Customs Act in order to consider Yara’s challenge to the Minister’s decision to issue the dumping duty notice in question.

Division 1 – factors and criteria

11    Division 1 “provides the basis for determining various factors … necessary to decide whether dumping … has occurred”, “sets out the criteria for the use of those factors in so deciding” and “provides the basis for determining whether dumping … is causing material injury to Australian industry”: s 269SN of the Customs Act.

12    The provision in Division 1 that is central to a number of Yara’s review grounds is s 269TAE, which deals with the question, relevant to the operation of s 269TG(1) and (2), of whether material injury to an Australian industry has been or is being caused because of any circumstance in relation to the exportation of goods to Australia.

13    Subsection 269TAE(1) of the Customs Act contains a non-exhaustive list of considerations that the Minister may have regard to in determining that issue. It is in the following terms:

(1)    In determining, for the purposes of section 269TG or 269TJ, whether material injury to an Australian industry has been or is being caused or is threatened or would or might have been caused, or whether the establishment of an Australian industry has been materially hindered, because of any circumstances in relation to the exportation of goods to Australia from the country of export, the Minister may, without limiting the generality of that section but subject to subsections (2A) to (2C), have regard to:

(aa)    if the determination is being made for the purposes of section 269TG—the size of the dumping margin, or of each of the dumping margins, worked out in respect of goods of that kind that have been exported to Australia and dumped; and

(ab)    if the determination is being made for the purposes of section 269TJ—particulars of any countervailable subsidy received in respect of goods of that kind that have been exported to Australia; and

(a)    the quantity of goods of that kind that, during a particular period, have been or are likely to be exported to Australia from the country of export; and

(b)    any increase or likely increase, during a particular period, in the quantity of goods of that kind exported to Australia from the country of export; and

(c)    any change or likely change, during a particular period, in the proportion that:

(i)    the quantity of goods of that kind exported to Australia from the country of export and sold or consumed in Australia; or

(ii)    the quantity of goods of that kind, or like goods, produced or manufactured in the Australian industry and sold or consumed in Australia;

bears to the quantity of goods of that kind, or like goods, sold or consumed in Australia; and

(d)    the export price that has been or is likely to be paid by importers for goods of that kind exported to Australia from the country of export; and

  (e)    the difference between:

(i)    the price that has been or is likely to be paid for goods of that kind, or like goods, produced or manufactured in the Australian industry and sold in Australia; and

(ii)    the price that has been or is likely to be paid for goods of that kind exported to Australia from the country of export and sold in Australia; and

(f)    the effect that the exportation of goods of that kind to Australia from the country of export in those circumstances has had or is likely to have on the price paid for goods of that kind, or like goods, produced or manufactured in the Australian industry and sold in Australia; and

(g)    any effect that the exportation of goods of that kind to Australia from the country of export in those circumstances has had or is likely to have on the relevant economic factors in relation to the Australian industry; and

(h)    if the determination is being made for the purposes of section 269TJ and the goods are agricultural products—whether the exportation of goods of that kind to Australia from the country of export in those circumstances has given or is likely to give rise to a need for financial or other support, or an increase in financial or other support, for the Australian industry from the Commonwealth Government.

14    Subsections 269TAE(2), (2A) and (2AA) specify further considerations relevant to the making of a determination for the purposes of s 269TAE(1). They provide as follows:

(2)    In determining, for the purposes of section 269TH or 269TK, whether material injury to an industry in a third country has been or is being caused or is threatened or would or might have been caused because of any circumstances in relation to the exportation of goods to Australia from the country of export, the Minister may, without limiting the generality of that section but subject to subsections (2A) to (2C), have regard to:

(aa)    if the determination is being made for the purposes of section 269TH—the size of the dumping margin, or of each of the dumping margins, worked out in respect of goods of that kind that have been exported to Australia and dumped; and

(ab)    if the determination is being made for the purposes of section 269TK—particulars of any countervailable subsidy received in respect of goods of that kind that have been exported to Australia; and

(a)    the quantity of goods of that kind that, during a particular period, have been or are likely to be exported to Australia from the country of export; and

(b)    any increase or likely increase, during a particular period, in the quantity of goods of that kind exported to Australia from the country of export; and

(c)    any change or likely change, during a particular period, in the proportion that:

(i)    the quantity of goods of that kind exported to Australia from the country of export and sold or consumed in Australia; or

(ii)    the quantity of goods of that kind, or like goods, produced or manufactured in the third country and sold or consumed in Australia;

bears to the quantity of goods of that kind, or like goods, sold or consumed in Australia; and

(d)    the export price that has been or is likely to be paid by importers for goods of that kind exported to Australia from the country of export; and

(e)    the difference between:

(i)    the price that has been or is likely to be paid for goods of that kind, or like goods, produced or manufactured in the third country and sold in Australia; and

(ii)    the price that has been or is likely to be paid for goods of that kind exported to Australia from the country of export and sold in Australia; and

(f)    the effect that the exportation of goods of that kind to Australia from the country of export in those circumstances has had or is likely to have on the price paid for goods of that kind, or like goods, produced or manufactured in the third country and sold in Australia; and

(g)    any effect that the exportation of goods of that kind to Australia from the country of export in those circumstances has had or is likely to have on the relevant economic factors in relation to the producer or manufacturer in the third country.

(2A)    In making a determination in relation to the exportation of goods to Australia for the purposes referred to in subsection (1) or (2), the Minister must consider whether any injury to an industry, or hindrance to the establishment of an industry, is being caused or threatened by a factor other than the exportation of those goods such as:

(a)    the volume and prices of imported like goods that are not dumped; or

(b)    the volume and prices of importations of like goods that are not subsidised; or

(c)    contractions in demand or changes in patterns of consumption; or

(d)    restrictive trade practices of, and competition between, foreign and Australian producers of like goods; or

(e)    developments in technology; or

(f)    the export performance and productivity of the Australian industry;

and any such injury or hindrance must not be attributed to the exportation of those goods.

(2AA)    A determination for the purposes of subsection (1) or (2) must be based on facts and not merely on allegations, conjecture or remote possibilities.

15    Subsections 269T(2), (3) and (4) are definitional provisions that are potentially relevant to the decision under review, and Yara’s challenge to it. Subsection 269T(2) provides that “goods, other than unmanufactured raw products, are not to be taken to have been produced in Australia unless the goods were wholly or partly manufactured in Australia” and s 269T(3) provides that “goods shall not be taken to have been partly manufactured in Australia unless at least one substantial process in the manufacture of the goods was carried out in Australia”. Subsection 269T(4) provides as follows:

(4)    For the purposes of this Part, if, in relation to goods of a particular kind, there is a person or there are persons who produce like goods in Australia:

(a)    there is an Australian industry in respect of those like goods; and

(b)    subject to subsection (4A), the industry consists of that person or those persons.

16    As discussed in more detail later in these reasons, the first stage of the decision-making process in respect of the publication of a notice under s 269TG(1) and (2) generally involves the Commissioner making and furnishing a report to the Minister which contains recommendations regarding an application to impose dumping duty on certain exports. As will be seen, that is what occurred with the publication of the notice relevant to this case. It is relevant to note, in that context, that s 269TA(1) of the Customs Act provides that the “Minister may, by legislative instrument, give to the Commissioner such directions in connection with the carrying out or giving effect to the Commissioner’s powers and duties under this Part as the Minister thinks fit, and the Commissioner shall comply with any directions so given”.

17    On 17 April 2012, the then-Minister gave directions to the Commissioner under s 269TA of the Customs Act: Ministerial Direction on Material Injury 2012 (the 2012 Ministerial Direction or the Direction). The directions potentially relevant to the decision under review in this case include: first, that “identification of material injury be based on facts and not on assertions unsupported by facts”; second, that the Commissioner “consider material injury to be injury that is not immaterial, insubstantial or insignificant”; third, that “dumping … need not be the sole cause of injury to the industry”; and fourth, that “the injury caused by dumping … must be material in degree”. The 2012 Ministerial Direction also states that the “injury must also be greater than that likely to occur in the normal ebb and flow of business”.

Division 2 – consideration of anti-dumping matters by the Commissioner

18    Division 2 sets out the “requirements for making applications for the publication of dumping duty notices” and the “procedures to be followed, and the matters to be considered, by the Commissioner in conducting investigations in relation to goods covered by such applications, for the purpose of making a report to the Minister”: s 269TBA of the Customs Act.

19    Section 269TB makes provision for a person who believes that there are, or may be, reasonable grounds for the publication of a dumping duty notice in respect of particular goods to lodge an application with the Commissioner requesting the Minister publish such a notice. Section 269TC contains detailed provisions about how the Commissioner must consider and respond to any such application. Subsection 269TC(4) provides that if “the Commissioner decides not to reject an application under subsection 269TB(1) or (2) in respect of goods, the Commissioner must give public notice of the decision”. That public notice must, among other things, set out particulars of the goods the subject of the application, indicate the date that the investigation will be initiated and invite interested parties to lodge submissions with the Commissioner in respect of the publication of the notice: s 269TC(4)(a), (bc) and (c) of the Customs Act.

20    Once an investigation is initiated by the Commissioner, the Commissioner may make a “preliminary affirmative determination” (s 269TD), must publish on the public record a statement of the facts on which the Commissioner proposes to base recommendations to the Minister (the “statement of essential facts”) (s 269TDAA) and may, in certain circumstances, terminate the investigation: s 269TDA of the Customs Act. If, in making a recommendation or decision, the Commissioner is required to determine any matter ordinarily required to be determined by the Minister under the Customs Act or the Dumping Duty Act, the Commissioner must determine the matter “in like manner as if he or she were the Minister” and “having regard to the considerations to which the Minister would be required to have regard if the Minister were determining the matter”: s 269TE(2) of the Customs Act.

21    Section 269TEA of the Customs Act deals with reports to the Minister arising from investigations initiated as a result of applications under s 269TB. Subsection 269TEA(1) provides that where an application has been made under s 269TB and the Commissioner has initiated an investigation under s 269TC, the Commissioner must, after holding such an investigation, give the Minister a report in respect of the concerned goods which contains a recommendation regarding, among other things, whether a dumping duty notice should be published. Subsection 269TEA(3) provides that, in deciding on the report’s recommendations to the Minister, the Commissioner must have regard to, among other things, the application and any submissions that have been made concerning the publication of the notice, as well as “any other matters that the Commissioner considers to be relevant”.

22    Subsection 269TEA(5), which deals with the contents of the Commissioner’s report, provides as follows:

(5)    The report to the Minister must include a statement of the Commissioner’s reasons for any recommendation contained in the report that:

(a)    sets out the material findings of fact on which that recommendation is based; and

(b)    provides particulars of the evidence relied on to support those findings.

Division 9 – Review of decisions by the Review Panel

23    Division 9 of pt XVB of the Customs Act sets out the procedures for review by the Review Panel (established under div 8) of certain decisions by the Minister or the Commissioner, including, relevantly, a decision by the Minister to publish a dumping duty notice under s 269TG(1) or (2): see s 269ZZA(1)(a) of the Customs Act.

24    A person who is an “interested party” in relation to a reviewable decision may apply for a review of that decision: s 269ZZC of the Customs Act. The application must, among other things, contain: a full description of the goods to which the application relates; a statement setting out the grounds on which the applicant believes the reviewable decision is not the correct or preferable decision; a statement setting out the decision that the applicant considers the Minister should have made; and a statement setting out how the grounds support the making of the proposed decision: s 269ZZE(2)(a), (b), (c) and (d).

25    Subsection 269ZZ(1) of the Customs Act provides as follows in relation to the conduct of a review by the Review Panel:

(1)    If the Review Panel is required, in conducting a review under Subdivision B or C, to determine any matter ordinarily required to be determined by the Minister under this Act or the Dumping Duty Act, the Review Panel must determine the matter:

(a)    in like manner as if it were the Minister; and

(b)    having regard to the consideration to which the Minister would be required to have regard if the Minister were determining the matter.

26    Sections 269ZZG and 269ZZH make provision for the rejection of a review application where the Review Panel is not satisfied that the grounds set out in the application are “reasonable grounds for the reviewable decision not being the correct or preferable decision”: s 269ZZG(1)(a) of the Customs Act. Where the Review Panel does not reject an application, s 269ZZH(5) provides, in essence, that that Review Panel must accept those grounds of the application it considers are reasonable grounds for the reviewable decision not being the correct or preferable decision (“reviewable grounds”) and reject those grounds which it is not satisfied are reasonable grounds for the reviewable decision not being the correct or preferable decision (“non-reviewable grounds”).

27    Importantly, the Review Panel “must conduct the review in relation to [the reviewable] grounds and no other grounds”: s 269ZZG(5)(c) and (d) of the Customs Act.

28    Section 269ZZL of the Customs Act makes provision for the Review Panel to require the Commissioner to reinvestigate certain matters. Subsection 269ZZL(1) provides that the Review Panel may require the Commissioner to “reinvestigate a specific finding or findings that formed the basis of the reviewable decision” and “report the result of the reinvestigation to the Panel”. Subsection 269ZZL(3) provides that the Commissioner’s report in respect of the reinvestigation must: affirm the finding or findings if the Commissioner is of the view that the finding or findings should be affirmed; set out any new finding or findings that the Commissioner made as a result of the reinvestigation; set out the evidence or other material on which the new finding or findings are based; and set out the reasons for the Commissioner’s decision.

29    Subsections 269ZZK(1) and (4) of the Customs Act provide as follows:

(1)    If an application is not rejected under section 269ZZG, 269ZZH or 269ZZHA, the Review Panel must make a report to the Minister on the application by:

(a)    recommending that the Minister affirm the reviewable decision; or

(b)    recommending that the Minister revoke the reviewable decision and substitute a specified new decision.

…

(4)    Subject to subsections (4A) and (5) and subsection 269ZZHA(2), in making the recommendation, the Review Panel:

(a)    must not have regard to any information other than the relevant information; and

(b)    must only have regard to the relevant information and any conclusions based on the relevant information that are contained in the application for the review or in any submissions received under section 269ZZJ within the period of 30 days referred to in that section.

30    Subsection 269ZZK(4A) provides that the Review Panel must have regard to any report the Commissioner gives the Review Panel pursuant to s 269ZZL, and s 269ZZK(5) provides that the Review Panel must not have regard to any submission that includes confidential information if the person who made that submission has not given the Review Panel a summary of the information that may be included in the public record.

31    “Relevant information”, for the purposes of s 269ZZK(4), is defined as follows in s 269ZZK(6)(a):

(6)    In this section:

relevant information means:

(a)    if the reviewable decision was made pursuant to an application under section 269TB—the information to which the Commissioner had had regard or was, under paragraph 269TEA(3)(a), required to have regard, when making the findings set out in the report under section 269TEA to the Minister in relation to the making of the reviewable decision; …

32    The information which the Minister must have regard to under s 269TEA(3)(a) is the application, the submissions made concerning the publication of the dumping duty notice to which the Commissioner had regard in formulating the statement of essential facts, the statement of essential facts and any submissions in response to that statement.

33    Subsection 269ZZM(1) provides that after receiving a report from the Review Panel under s 269ZZK(1), the Minister must either affirm the reviewable decision or revoke that decision and substitute a new decision. Subsection 269ZZM(3)(a) provides that the Minister may, under s 269ZZM(1), publish a dumping duty notice.

THE RELEVANT REPORTS AND DECISIONS IN THIS MATTER

34    The decision of the Minister under challenge by Yara in this proceeding is the Minister’s decision on 3 August 2020 to affirm an earlier decision made on 29 May 2019 to publish a dumping duty notice in respect of ammonium nitrate exported to Australia. Yara’s challenge to the Minister’s decision of 3 August 2020 hinges on the reports and recommendations of the Commissioner and the Review Panel which preceded the decision, and upon which the Minister relied or acted on in making the decision. It is therefore necessary to consider those reports and recommendations in some detail. Some consideration should also be given to the relevant applications and review applications which were made pursuant to the procedures set out in pt XVB of the Customs Act.

The application under s 269TB of the Customs Act

35    On 29 March 2018, three companies, who collectively described themselves as comprising the “Australian industry manufacturing ammonium nitrate”, lodged an application with the Commission pursuant to s 269TB of the Customs Act, which requested the Minister to publish a dumping duty notice in respect of ammonium nitrate exported to Australia. The three applicant companies were Orica Australia Pty Ltd, CSBP Limited and Queensland Nitrates Pty Ltd. The application stated that the only other local manufacturers of ammonium nitrate were Incitec Pivot Pty Ltd, its wholly owned subsidiary, Dyno Nobel Asia Pacific Pty Ltd, and a “new entrant” yet to commence production, Yara Pilbara Fertilisers Pty Ltd.

36    The applicants claimed that they had experienced material injury in 2017 from “dumped” ammonium nitrate exports to Australia from China, Sweden and Thailand which had commenced in 2016. They claimed that those exports had resulted in them suffering a decline in production, reduced sales volumes, reduced revenues, “price depression”, “price suppression” and reduced profit and profitability. The applicants also claimed that their industry had, as a result of the dumped exports, experienced other “injury indicators” such as reduction in return on investment, lower capacity utilisation and reductions in employment numbers.

The Commissioner’s investigation and report

37    On 25 June 2018, the Commissioner published a notice pursuant to s 269TC(4) of the Customs Act. The notice indicated that the Commissioner had, in response to the application by Orica, CSBP and Queensland Nitrates, initiated an investigation into whether dumping had occurred in respect of the export to Australia of ammonium nitrate during the period 1 April 2017 to 31 March 2018. The notice also invited submissions from interested parties.

38    A number of companies, including Yara, lodged submissions with the Commission in response to the invitation.

39    On 18 April 2019, the Commissioner gave the Minister a report pursuant to s 269TEA of the Customs Act in respect of the alleged dumping of ammonium nitrate exported from China, Sweden and Thailand (Anti-Dumping Commission Report No. 473 – the Commission Report or ADCR).

40    The Commissioner’s findings in the Commission Report may be shortly summarised as follows.

41    First, locally produced ammonium nitrate is “like” the goods the subject of the application – that is, the ammonium nitrate exported to Australia.

42    Second, there is an Australian industry producing like goods and that those goods are wholly manufactured in Australia.

43    Third, the Australian ammonium nitrate market is supplied from local production by CSBP, Orica, Queensland Nitrates, Dyno Nobel, Yara Pilbara and by imports from China, Sweden, Thailand and other countries. The applicant companies, CSBP, Queensland Nitrates and Orica, accounted for an estimated 78 per cent of the total production volume in Australia during the investigation period.

44    Fourth, exports of ammonium nitrate to Australia from China, Sweden and Thailand during the investigation period had been dumped at margins that were not negligible. The volume of dumped goods from each country was also not negligible. In calculating the dumping margins in accordance with s 269TACB of the Customs Act, the Commissioner “compared the weighted average of export prices over the whole of the investigation period with the weighted average of corresponding normal values over the whole of that period”.

45    Fifth, the appropriate approach to the question whether there was a causal link between injury to the Australian industry and the dumped goods was to conduct a “but for” analysis which involved comparing “the current state of the Australian industry to the state that the Australian industry would likely have been in the absence of dumping”. That assessment was undertaken by “comparing the applicants’ actual price offers and re-negotiated prices to what the prices might have been in the absence of dumping, all other factors being equal”. It was also appropriate to consider the cumulative effect of the alleged dumped exports from China, Sweden and Thailand.

46    Sixth, the Australian industry’s production and domestic sales volumes had decreased in the investigation period, though volumes had increased overall since 2014-2015. The Australian industry’s share of the Australian ammonium nitrate market was not found to have decreased in the investigation period. Imports from China, Sweden and Thailand had increased since 2015, as did the market share held by those countries, while the market share held by imports from other countries had decreased over the same period.

47    Seventh, the applicants’ weighted average prices had decreased from 2014-2015 and increased in 2017-2018, though they did not recover to 2014-2015 levels. The applicants’ weighted average costs also decreased over that period, though the rate of the decrease was relatively lower than the decrease for weighted average prices, which indicated “price suppression”. The applicants’ aggregated net profit and profitability had declined in the investigation period, with profit below that achieved in 2014-2015.

48    Eighth, the Australian industry’s negotiated contract prices during the investigation period were, on average, approximately 24.3 per cent lower than the contract prices that had existed at the time of the negotiations. The negotiated prices “adjusted for dumping” – the prices that the Commission calculated would have been achieved but for the dumping (the “undumped prices”) – were, on average, approximately 17.8 per cent higher than the prices actually achieved as a result of the negotiations (the “negotiated prices”). While there were “factors other than dumping” that appear to have caused the reductions in prices, “dumping has still caused a significant reduction in prices”.

49    Ninth, material injury to the Australian industry in the form of price depression, decreased profit and profitability, and the loss of sales volumes, particularly lost contracts, had been and was being caused by dumped goods exported to Australia from the subject countries during the investigation period. The injury to the Australian industry, in the form of profit forgone, was greater than that likely to occur in the normal ebb and flow of business.

50    Tenth, future exports of ammonium nitrate from China, Sweden and Thailand may be at dumped prices. Continued dumping of the goods from China, Sweden and Thailand may therefore continue to cause material injury to the Australian industry.

51    The Commissioner recommended to the Minister that a dumping duty notice be published in respect of ammonium nitrate exported to Australia from China, Sweden and Thailand.

52    The Commissioner’s findings and reasoning will be considered in more detail later in the course of addressing Yara’s grounds of review and challenge to the Minister’s decision.

The Minister’s anti-dumping notice

53    On 29 May 2019, the Minister decided to accept “the recommendations of the Commissioner, the reasons for the recommendations, the material findings of fact on which the recommendations [were] based and the evidence relied on to support those findings”, as recorded in the Commission Report in relation to the alleged dumping of ammonium nitrate. That decision was recorded in a public notice under s 269TG(1) and (2) of the Customs Act published on 3 June 2019. That notice recorded the following findings by the Minister:

I am satisfied, as to the goods that have been exported to Australia, that the amount of the export price of the goods is less than the normal value of those goods and because of that, material injury to the Australian industry producing like goods might have been caused if the security had not been taken. Therefore under subsection 269TG(1) and section 45 of the Customs Act 1901 (the Act), I DECLARE that section 8 of the Customs Tariff (Anti-Dumping) Act 1975 (the Dumping Duty Act) applies to:

(i)    the goods; and

(ii)    like goods

that were exported to Australia six months prior to the publication of this notice.

I am also satisfied that the amount of the export price of like goods that have already been exported to Australia is less than the amount of the normal value of those goods, and the amount of the export price of like goods that may be exported to Australia in the future may be less than the normal value of the goods and because of that, material injury to the Australian industry producing like goods has been caused or is being caused. Therefore, under subsection 269TG(2) of the Act, I DECLARE that section 8 of the Dumping Duty Act applies to like goods that are exported to Australia after the date of publication of this notice.

This declaration applies in relation to all exporters of the goods and like goods from China, Sweden and Thailand.

The considerations relevant to my determination of material injury to the Australian industry caused by dumping are the size of the dumping margins, the effect of dumped imports on prices in the Australian market and the consequent impact on the Australian industry including price depression, reduced profits and profitability, and loss of sales volumes.

Applications to the Review Panel

54    On 28 June 2019, Glencore Coal Assets Australia Pty Ltd lodged an application with the Review Panel pursuant to s 269ZZC and s 269ZZE of the Customs Act for a review of the Minister’s decision made on 29 May 2019 to publish the dumping duty notice. Review applications were also lodged by Yara and Downer EDI Mining – Blasting Services Pty Ltd on 3 July 2019.

55    On 20 September 2019, the Review Panel published a notice pursuant to s 269ZZI of the Customs Act. The notice, among other things, recorded that the Review Panel was satisfied that a number of the review grounds relied upon by Glencore, Yara and Downer EDI were “reasonable grounds for the reviewable decision not being the correct or preferable decision”: cf s 269ZZH(5)(b)(i) and (c) of the Customs Act.

56    Insofar as Yara’s application was concerned, the reviewable grounds were as follows:

1.    Yara’s exports have not caused injury to the Australian industry.

2.    The effect of Yara’s exports should not be cumulated with exports from China and Thailand.

3.    The price effects and volume effects have not been correctly determined.

4.    The injury is not material.

5.    The injury is not greater than that likely to occur in the normal ebb and flow of business.

57    The Review Panel received submissions from a number of persons, including Yara, in late October 2019.

The reinvestigation report

58    On 19 November 2019, the Review Panel advised the Commissioner that it required certain findings made in the Commission Report to be reinvestigated pursuant to s 269ZZL of the Customs Act. The parties requested that the precise details of this request remain confidential. It suffices to note that the requested reinvestigation related to the Commissioner’s findings that any injury caused by the dumping was material, and that exports from Sweden should be cumulated with other exports to Australia.

59    Yara and Downer EDI made detailed submissions to the Commissioner in respect of the reinvestigation in February and March 2020.

60    On 6 March 2020, the Commission published a report setting out the Commissioner’s preliminary findings in respect of the reinvestigation. On 20 April 2020, the Commission published its final report in respect of the reinvestigation (Reinvestigation Report 473). The Commissioner summarised his findings in the following terms:

In accordance with section 269ZZL(2), the Commissioner found that:

•    profit forgone is 2.2 per cent of the Australian industry applicants’ aggregated profit in the investigation period (1 April 2017 to 31 March 2018), and 3.6 per cent of the Australian industry applicants’ aggregated profit in the 12 months following the investigation period (the post-investigation period, 1 April 2018 to 31 March 2019) (set out in section 2.2.1 of this report);

•    the ‘evidentiary validity’ of the profit forgone in the post-investigation period is sound (set out in section 2.2.2 of this report);

•    the reduction in profitability caused by dumping of exports during the investigation period, expressed as a percentage point change in profitability, is 0.6 percentage points in the investigation period and 1.1 percentage points in the post-investigation period. However, the Commissioner does not consider that this methodology is preferable to the methodology adopted in REP 473 (where the profit forgone is expressed as a percentage of the Australian industry applicants’ aggregated profit) (set out in section 2.2.3 of this report);

•    based on the profit forgone in the investigation period and the post-investigation period, the Commissioner considers that the injury to the Australian industry caused by dumping is material (set out in section 2.2.4 of this report); and

•    it is appropriate to consider the cumulative effect of the exportations of the goods from China, Sweden and Thailand given the conditions of competition between those goods and the conditions of competition between those goods and like goods that are domestically produced (set out in section 3.3 of this report).

The Commissioner therefore affirms the findings the subject of this reinvestigation.

The Review Panel’s report

61    On 2 July 2020, the Review Panel published its report (Anti-Dumping Review Panel Report No. 107 – Review Panel Report or ADRPR) in respect of the review application by Glencorp, Yara and Downer EDI. The Review Panel considered and made findings in respect of each of the review grounds which it had found to be reviewable grounds, including the five grounds relied on by Yara.

62    It will be necessary to consider some of the Review Panel’s findings and reasoning in the context of Yara’s review grounds and its challenge to the Minister’s decision. It suffices at this point to note that the Review Panel rejected each of the reviewable grounds advanced by Glencorp, Yara and Downer EDI, found that it had not been demonstrated that the Commissioner’s finding that the injury caused by the dumping was material was not the correct or preferable decision, and concluded that the Minister’s decision (as published on 3 June 2019) to publish a dumping duty notice in respect of ammonium nitrate exported to Australia from China, Sweden and Thailand was the “correct or preferable decision”.

63    The Review Panel accordingly recommended, pursuant to s 269ZZK(1)(a) of the Customs Act, that the Minister affirm her decision to publish the dumping duty notice.

The Minister’s decision – the decision under review

64    On 4 August 2020, the Minister published a notice pursuant to s 269ZZM(4) of the Customs Act which recorded her decision to affirm her previous decision (the “reviewable decision”) to publish a dumping duty notice in respect of ammonium nitrate exported from China, Sweden and Thailand. The notice recorded that the Minister had considered and accepted the recommendations and reasons for the recommendations made by the Review Panel in the Review Panel Report, including all material findings of fact and law as set out in the report.

65    The Minister’s decision made on 3 August 2020 is the decision which is the subject of Yara’s application for judicial review.

YARA’S review GROUNDS

66    Yara’s challenge to the Minister’s decision relied on six grounds of review under either the ADJR Act or s 39B of the Judiciary Act.

67    Ground 1 in Yara’s Amended Originating Application for Judicial Review is that the Minister’s decision involved an error of law, within the meaning of s 5(1)(f) of the ADJR Act, or was not authorised by the enactment in pursuance of which it was purported to be made, within the meaning of s 5(1)(d) of the ADJR Act. The alleged error was said to be that the Review Panel adopted an erroneous construction of the causation requirement (“because of that”) in s 269TG(1)(b) and (2)(b) of the Customs Act. Yara contended that, because the Minister accepted the Review Panel’s findings and recommendations, the Minister’s decision was infected by the same error. The essence of Yara’s argument in respect of this ground was that there was no proper basis in law for the Review Panel’s findings relevant to causation.

68    Ground 2 of Yara’s Application is that the decision involved an error of law, within the meaning of s 5(1)(f) of the ADJR Act, and/or was an improper exercise of power, within the meaning of ss 5(1)(e), 5(2)(a) and 5(2)(b) of the ADJR Act. The alleged error was said to arise from the approach taken by both the Commission and the Review Panel to the issue of material injury, an approach which was also accepted by the Minister in making the decision. Yara contended that the Review Panel took into account irrelevant considerations, failed to take into account relevant considerations, or otherwise erred in concluding that material injury had been or was being caused to the Australian industry as a whole. It argued, in particular, that the Review Panel had regard to allegations and conjecture, applied an erroneous measure of the effect of any price depression on the industry as a whole, and failed to take into account any corresponding benefit to Australian industry counterparties.

69    Ground 2A of Yara’s Application is that the Minister’s decision involved an unreasonable exercise of discretion under s 269TG(2) of the Customs Act. This ground again challenged the basis of the Review Panel’s finding, which was accepted by the Minister, that material injury had been or was being caused to the Australian industry. It was contended that the Minister’s exercise of discretion was unreasonable because the Minister accepted the Review Panel’s findings in respect of material injury. Those findings were said to be erroneous because the Minister applied an erroneous measure of the effect of any price depression on the industry as a whole and failed to take into account any corresponding benefit to Australian industry counterparties.

70    Ground 3 of Yara’s Application is that the Minister misconstrued s 269TAE(2C)(e) of the Customs Act and, in doing so, made an error of law within the meaning of s 5(1)(f) of the ADJR Act. Subsection 269TAE(2C) deals with the circumstances in which the Minister should consider the cumulative effect of exportations from different countries. Yara argued that the Minister misconstrued that provision as encompassing goods extending beyond the goods exported to Australia which were the subject of the investigation.

71    Ground 4 of Yara’s Application is that procedures that were required by law to be observed in connection with the making of the Minister’s decision were not observed, within the meaning of s 5(1)(b) of the ADJR Act, and/or that the decision involved an improper exercise of power within the meaning of s 5(1)(e) and s 5(2)(b) of the ADJR Act. Yara’s argument in relation to this ground was, in essence, that the Review Panel failed to consider whether the injury to the Australian industry caused by the dumping was greater than that likely to occur in the normal ebb and flow of business. Yara argued that the Review Panel was required to have regard to that consideration by virtue of the 2012 Ministerial Direction and that, because the Minister accepted the Review Panel’s recommendation, her decision was infected by this error.

72    Ground 5 of Yara’s Application is that procedures that were required by law to be observed in connection with the making of the Minister’s decision were not observed, and/or the Review Panel and the Minister failed to carry out their statutory functions in connection with the decision. The essence of the submission advanced in support of this was that the Review Panel adopted the incorrect “standard of review” and did not determine matters in like manner as if it were the Minister, as required by s 269ZZ(1) of the Customs Act. Rather, it determined whether the approach taken by the Commission was “reasonable”. This error by the Review Panel was said to, in turn, infect the Minister’s decision.

CONSIDERATION OF REVIEW GROUNDS

73    Yara’s arguments in support of its review grounds focussed primarily on the Review Panel’s reasons and findings. In making the decision in question, the Minister accepted the Review Panel’s reasons and findings, as well as the Review Panel’s recommendation to affirm the original decision to publish the dumping duty notice. Some of the review grounds also hinge on aspects of the Commissioner’s reasons and findings which, for the most part, were found by the Review Panel to be reasonable, and not erroneous as Yara had contended.

Ground 1 – erroneous construction of s 269TG(1)(b) and (2)(b) of the Customs Act

74    The question to be determined in respect of this review ground is whether the Review Panel adopted an erroneous construction of the causation requirement in s 269TG(1)(b) and (2)(b) of the Customs Act.

75    The causation requirement in s 269TG(1) and (2) arises from the words “because of that” in both those provisions. In the case of s 269TG(1), the relevant causation requirement is, in substance, that the Minister is satisfied that material injury to an Australian industry producing like goods has been or is being caused by the fact that the amount of the export price of the goods is less than the amount of the normal value of the goods. In the case of s 269TG(2), the relevant causation requirement is, in substance, that the Minister is satisfied that material injury to an Australian industry producing like goods has been or is being caused by the fact that the amount of the export price of the goods that may be exported to Australia in the future may (as in the present case) be less than the normal value of the goods.

76    There could be no doubt that both the Commission and the Review Panel proceeded on the basis that they could only recommend that a dumping duty notice be issued under s 269TG(1) or (2) if they were satisfied that there was dumping (the export price of the goods exported to Australia was less than the amount of the normal value of the goods) and “because of that”, relevantly, material injury to an Australian industry had been, or was being, caused or threatened. Yara did not contend otherwise. Yara’s arguments in relation to ground 1 focussed on the basis upon which both the Commissioner and the Review Panel found that they were satisfied that the causation requirement had been made out in the case of the dumped ammonium nitrate. It is nevertheless necessary to give some attention to the manner in which both the Commission and the Review Panel approached the question of causation.

77    At section 7.1 of the Commission Report, the Commissioner noted that “[f]or the publication of a dumping duty notice under section 269TG(2), the Minister must be satisfied, among other things, that because of the dumping, material injury to an Australian industry producing like goods has been or is being caused or is threatened”. The Commissioner also noted that s 269TAE(1) provided a “non-exhaustive list of factors which the Commission can examine, and that the Minister may have regard to, in determining whether material injury to an Australian industry has been or is being caused or is threatened”. At section 7.3, the Commissioner explained why he considered it reasonable to approach the causation requirement by undertaking a “but for” analysis which involved comparing the “current state of the Australian industry to the state that the Australian industry would likely have been in the absence of dumping”. The Commissioner explained his assessment in the following terms (at section 7.3):

The Commission undertook an assessment by comparing the applicants’ actual price offers and re-negotiated prices to what the prices might have been in the absence of dumping, all other factors being equal. In relation to injury in the form of loss of sales volumes, this was only attributed to dumping in certain instances where it could be established that these sales volumes were directly displaced by the dumped goods. This is further discussed in Chapter 9 of this report.

78    Yara did not contend that it was legally erroneous or otherwise impermissible for the Commissioner to approach the causation requirement in s 269TG(1) and (2) by way of a “but for” analysis. Rather, Yara’s complaints related to the findings said to arise from the “but for” analysis.

79    The Commissioner devoted an entire chapter of the Commission Report, chapter 9, to the question whether dumping was causing material injury to the Australian industry in question. In their submissions to the Commissioner, the applicants, CSBP, Orica and Queensland Nitrates, gave examples of contract negotiations with customers during the investigation period which they claimed demonstrated they had “lowered their prices in response to the dumped goods to secure supply contracts”, or had “matched import parity pricing as customers cited the availability and pricing of imported ammonium nitrate”: ADCR at section 9.2. The Commissioner assessed those claims and considered, among other things, whether seven particular contract negotiations, the details of which had been provided by the applicants, indicated that: customers had used import prices to negotiate lower prices with the Australian industry; the Australian industry had reduced prices to match import pricing to maintain existing contracts; there was evidence provided by the Australian industry demonstrating lower price offers were made in an effort to match import pricing; and import volumes from the exporting countries had displaced the Australian industry’s potential sales volumes where the Australian industry had failed to secure contracts as a result of the negotiations: ADCR at section 9.2.1.

80    Having considered the seven relevant contract negotiations, the Commissioner concluded that the “applicants had experienced price depression due to lower negotiated contract prices”: ADCR at section 9.2.2. The Commissioner considered, however, that there may have been factors other than dumping which had led to the price reductions. The Commissioner therefore conducted an analysis to determine what the applicants’ prices “might have been in the absence of dumping”. That analysis involved adjusting the import prices achieved by the applicants to take into account the “dumping margin”. All other variables were held constant so as to “ensure a proper comparison between the final price offers, or the actual prices that the applicants matched, and the ‘undumped’ prices”. The point of the adjustment was to ensure that “any difference between the negotiated price and the ‘undumped’ price would only reflect the difference due to dumping and not any other factors”: ADCR at section 9.2.2.

81    The Commissioner’s conclusions from this analysis were as follows (ADCR at section 9.2.2):

The Commission found that the negotiated prices (or prices that were matched) were, on average, approximately 24.3 per cent lower than the contract prices existing at the time of the negotiation. To quantify the effect of dumping only, the Commission compared the negotiated prices adjusted for dumping (the ‘undumped’ price) to the negotiated prices. The Commission found that, on average, the prices adjusted for dumping are approximately 17.8 per cent higher than the negotiated prices.

Based on the assessment above, the Commission considers that, while there appear to be factors other than dumping that have also caused the reductions in prices, dumping has still caused a significant reduction in prices.

82    The Commissioner also concluded that the “reduced prices achieved as a result of contract negotiations conducted during the investigation period and subsequent to the investigation period will result in lower profit and profitability (all other variables being held constant) for the duration of the new contracts”: ADCR at section 9.4. The Commission also went on to consider whether those price reductions were material to the Australian industry as a whole: ADCR at section 9.6.

83    Yara’s application to the Review Panel included a challenge to the Commissioner’s findings concerning causation.

84    One of Yara’s review grounds before the Review Panel was that Yara’s exports had not caused injury to the Australian industry. Yara’s arguments in support of that review ground in part hinged on the contention that the effect of Yara’s exports, which were from Sweden, should not be cumulated with exports from China and Thailand, having regard to the terms of s 269TAE(2C) of the Customs Act. That contention was rejected by the Review Panel: ADRPR at [281]-[298]. Yara’s complaint about the Review Panel’s findings in that regard is the subject of ground 3 of Yara’s review grounds in the present proceedings.

85    Putting that complaint concerning accumulation to one side, Yara’s contention, put before the Review Panel, that its exports had not caused injury to the Australian industry was based on the fact that it was not a party to the seven relevant contract negotiations that were considered by the Commission. The Review Panel concluded, however, that the “causal link” could be established despite the fact that Yara may not have been a party to the relevant contract negotiations. It pointed out, in that regard, that: a customer of Yara was a party to some of the contracts negotiated; that customer sourced goods from the Australian industry members and competed with other purchasers from those members; the evidence before the Commission demonstrated that the Australian industry reduced prices in response to the “dumped prices”; and “Yara’s prices were used to inform or arrive at Australian industry price offers, either directly or by an average of import prices in the period”: ADRPR at [318]. The Review Panel concluded that the Commissioner’s findings in relation to causation were “reasonable”: ADRPR at [319].

86    Yara’s submissions in support of ground 1 of the present Application did not identify precisely how it was said that either the Commission or the Review Panel had misconstrued the causation requirement in s 269TG(1) and (2) of the Customs Act. Rather, the argument appeared to proceed on the basis that the Commissioner’s reasons in relation to causation did not reveal or demonstrate any “genuine causal connection”, or any “real basis” for the Commission’s finding that the dumping had caused or would cause material injury to the Australian industry. The key argument advanced by Yara appeared to again hinge on the fact that Yara was not a party to any of the relevant contract negotiations. Yara also submitted that the Commissioner’s analysis of the contract negotiations did not give any “specific consideration” to whether higher prices would have been achieved by the negotiating parties, but for the dumping.

87    The fundamental problem with Yara’s arguments in support of ground 1 of the Application is that they really amounted to little more than complaints about the merits of the factual findings made by the Commissioner and the Review Panel about the effect that the export prices of the dumped goods had on the prices achieved in the relevant contract negotiations. Even if Yara was able to demonstrate that the Commissioner’s reasons and findings based on the contract negotiations were flawed in the way it contended, that would not itself demonstrate that the Commission somehow misconceived or misconstrued the causation requirement in s 269TG(1) and (2). As noted earlier, Yara did not contend that the “but for” approach taken by the Commission in respect of the causation element was, as a matter of law, erroneous or otherwise demonstrated that the Commission addressed the wrong question in relation to the causation requirement in s 269TG(1) and (2). Nor did Yara contend that the alleged flaws in the Commissioner’s factual findings and reasons were such that they compelled the conclusion that the Commission somehow misconceived or misconstrued the causation requirement.

88    The question whether, for the purposes of s 269TG(1) and (2), material injury to an Australian industry was caused by the alleged dumping is a question of fact: N.V. Beaulieu Real v The Minister for Justice and Customs [2002] FCA 467 at [59] (Conti J). That question is to be determined by the Minister, based on the advice and recommendations of the Commissioner or the Review Panel, not by the Court: N.V. Beaulieu at [50]. Similarly, the assessment and weighing of the evidence concerning the question of causation is a task for the Commissioner or the Review Panel, and ultimately the Minister, not the Court: N.V. Beauilieu at [50]. That task is also “essentially a practical exercise designed to achieve the objective of determining whether, when viewed as a whole, the relevant Australian industry is suffering material injury from the dumping of goods”: Swan Portland Cement Ltd v Minister for Small Business and Customs (1991) 28 FCR 135; [1991] FCA 42 at 144 (Lockhart J) (emphasis added).

89    It is, in those circumstances, not to the point that Yara disagrees with the factual findings made by the Commissioner and the Review Panel, or that Yara may be able to demonstrate that a different decision-maker may have arrived at different factual findings in respect of causation. Factual findings in respect of causation can generally only be impugned in judicial review proceedings under the ADJR Act or s 39B of the Judiciary Act on the basis that there is no evidence or other material to justify the finding (s 5(1)(h) of the ADJR Act), or the finding was otherwise irrational or illogical such as to constitute jurisdictional error: see generally Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16. Yara did not go so far as to contend that there was no evidence or other material to justify the findings made by the Commissioner and the Review Panel in respect of causation, or that those findings were irrational or illogical.

90    It is, in the circumstances, unnecessary to address in detail Yara’s specific arguments concerning the Commissioner’s factual findings in respect of causation. It suffices to observe that the Commissioner’s findings in respect of causation, which were relevantly endorsed or affirmed by the Review Panel, and ultimately accepted by the Minister, were at the very least open on the material that was before the Commission. No relevant legal or jurisdictional error has been demonstrated. Specifically, Yara has not demonstrated that the findings in relation to causation involved an error of law, or were such that it could be concluded that the Minister’s decision was not authorised by s 269TG(1) and (2) of the Customs Act.

91    It follows that ground 1 of Yara’s Application must be rejected.

Grounds 2 and 2A – s 269TAE and material injury to the Australian industry

92    It is convenient to address grounds 2 and 2A together as both relate to the findings made by the Commissioner and the Review Panel, and, ultimately, the Minister, that the export of the dumped ammonium nitrate from Sweden, China and Thailand had caused, and was continuing to cause, material injury to the Australian industry.

93    Yara contended that the Commissioner, the Review Panel, and the Minister made three errors of law in finding that material injury had been, or was being, caused to the Australian industry by the dumping of ammonium nitrate. The first error was said to be that the finding was not based on facts, but rather was based merely on allegations, conjecture or remote possibilities contrary to s 269TAE(2AA) of the Customs Act and the 2012 Ministerial Direction. The second error was said to be that, contrary to s 269TAE(2A) of the Customs Act, the Commissioner and the Review Panel failed to consider whether any injury to the Australian industry had been, or was being, caused by a factor which could not be attributed to the exportation of ammonium nitrate from Sweden, China and Thailand. The third error was said to be that, in making the finding, the Commissioner and the Review Panel failed to consider or account for any corresponding benefit to Australian industry counterparties.

Facts, not allegations, conjecture or remote possibilities – s 269TAE(2AA)

94    As for the first alleged error, Yara’s contention that the finding of material injury was based merely on allegations, conjecture or remote possibilities was to a large extent based on the fact that the Commissioner’s analysis of the seven relevant contract negotiations included two negotiations (examples 5 and 6) where no contracts were concluded. Yara argued that the Commissioner’s analysis of those two contracts involved conjecture that contracts would have been formed at the “undumped” price.

95    The difficulty with Yara’s argument, however, is that it would be fairer to characterise the Commissioner’s reasoning concerning examples 5 and 6 as involving inferences, based on the evidence, as opposed to merely allegations, conjecture or remote possibilities.

96    The Commissioner’s reasoning in relation to example 5 was as follows (ADCR at section 9.2.1):

[Queensland Nitrates] provided information in relation to its bid to supply a customer with ammonium nitrate over a 12 month period.

This customer approached [Queensland Nitrates] in the investigation period, and [Queensland Nitrates] provided an offer to this customer, which was subsequently rejected.

[Queensland Nitrates] claims that the potential customer advised that it is able to source ammonium nitrate at a lower price from overseas. No evidence was provided to support this claim. The Commission notes, however, that this customer is an importer of the goods from one of the subject countries. An examination of verified data from the importer shows that, following [Queensland Nitrates’] unsuccessful offer, this customer ordered the goods from one of the countries the subject of this investigation.

The Commission found that the price at which the customer sourced the goods from the subject country undercut [Queensland Nitrates’] price offer. The Commission assessed whether [Queensland Nitrates’] price offer would have been more price competitive in the absence of dumping. The Commission’s approach to this assessment is outlined in section 9.2.2 of this chapter.

97    It can be seen that, while the Commissioner accepted that Queensland Nitrates had not itself provided evidence to substantiate its claim that the customer with which it had attempted to negotiate a sale purchased ammonium nitrate from one of the exporting countries instead, the Commissioner nonetheless inferred from other evidence that the customer did in fact purchase ammonium nitrate from one of the exporting countries at a price which undercut Queensland Nitrates’ price offer. Further detail concerning the evidence relied on by the Commission in drawing the inferences in relation to example 5 is provided in a confidential annexure to the report. While Yara may quibble with the inference drawn by the Commissioner in relation to example 5, it cannot be accepted that the Commissioner’s findings were based merely on allegations, conjecture, or remote possibilities.

98    Much the same can be said concerning the Commissioner’s analysis of example 6. The Commissioner’s reasoning was as follows (ADCR at section 9.2.1):

[Queensland Nitrates] is the incumbent supplier to this customer in accordance with a fixed-term contract. During the investigation period, and subsequent to the investigation period, [Queensland Nitrates] negotiated with this customer for supply above the contracted volumes on three separate occasions, as follows.

•    First negotiation (supply in second quarter, 2017): [Queensland Nitrates] was successful in supplying at a price derived with reference to import parity pricing. The Commission has been provided with [Queensland Nitrates’] workings to arrive at a ‘landed’ ammonium nitrate price, which then formed the basis for its own price offer. The price quoted for the supply of these volumes is slightly below this price.

•    Second negotiation (supply in second quarter, 2018): [Queensland Nitrates’] was unsuccessful in supplying additional volumes to this customer. The Commission has obtained information from [Queensland Nitrates’] and the importer that has been successful in its bid to supply this particular customer. The Commission found that this importer has supplied this customer with dumped goods from one of the countries the subject of this investigation at a lower price than what [Queensland Nitrates’] bid was to this customer. The Commission observes that these volumes were directly displaced by dumped imports.

•    Third negotiation (supply in FY 2019): [Queensland Nitrates] agreed to a variation in the current contract with the customer. This variation was to supply volumes over a stated threshold at a price that [Queensland Nitrates] claims was derived with reference to import prices. While [Queensland Nitrates] has claimed that the price was based on an IPP, the Commission observes that the information [Queensland Nitrates] provided in relation to import prices was not contemporary nor specific to this negotiation. Further, [Queensland Nitrates] only provided an estimate of future supply. For these reasons, the Commission has not included this negotiation in its assessment of injury to the Australian industry.

99    As can be seen, the Commissioner was plainly aware that the second negotiation was unsuccessful. The Commissioner’s findings and reasoning concerning that negotiation did not involve mere conjecture. The inference drawn by the Commissioner that the customer was supplied with “dumped goods” from one of the exporting countries at a price lower than Queensland Nitrates’ bid was drawn from evidence provided to the Commission. That evidence is detailed in a confidential annexure to the report.

100    Yara otherwise sought to impugn the Commission’s assessment or calculation (ADCR in section 9.2.2) of what the prices the subject of the contract negotiations would have been in the absence of dumping, on the basis that it involved nothing more than mere allegations, conjecture or remote possibilities. The method adopted by the Commission to determine the “undumped” prices – the negotiated prices adjusted having regard to the dumping margin – was summarised earlier in the context of ground 1 of the Application. The Commission’s assessment of the undumped prices was supported by a detailed analysis recorded in a confidential annexure to the report. The analysis was based on, among other things, evidence concerning existing contract prices, the offer prices and the final contract prices. It is neither fair nor reasonable to characterise the Commissioner’s assessment of pricing as involving merely allegations, conjecture or remote possibilities.

101    Yara’s grounds of review before the Review Panel included a ground which challenged the Commissioner’s findings concerning the price and volume effects of the dumped goods. Yara argued, among other things, that the Commissioner’s findings concerning the price and volume effects were based not merely on allegations, conjecture or remote possibilities, not facts. The Review Panel, however, rejected that argument. It found that the Commissioner’s “analysis and conclusions relating to the effects of the subject exports” was “comprehensive”, “based on facts”, and not in any respect unreasonable: ADRPR at [334]-[335]. The Review Panel was correct to reject Yara’s arguments concerning the Commissioner’s findings concerning the price and volume effects for the reasons already given.

102    There is, in all the circumstances, no sound basis for Yara’s contention that the Commissioner, the Review Panel, or the Minister based the determination of material injury merely on allegations, conjecture or remote possibilities, contrary to s 269TAE(2AA) of the Customs Act.

Factors other than the exportation of the goods – s 269TAE(2A)

103    Yara’s second complaint concerning the finding relating to material injury to the relevant Australian industry may be dealt with shortly. As already noted, Yara contended that the Commission failed to consider whether any injury to the industry had been, or was being, caused by a factor which could not be attributed to the exportation of ammonium nitrate from Sweden, China and Thailand. That contention was based on the assertion that there were “many other factors” which could have prevented the Australian industry from achieving the “undumped” price in the relevant contract negotiations during the investigation period. That assertion, however, was unsupported by any evidence and was itself merely allegation, or conjecture.

104    The only other factor specifically identified in Yara’s submissions in support of this argument was the “possible competition from the other members of the Australia [sic] industry, who make up 97% of the market”. Yara did not, however, point to any evidence which was before the Commission which identified the “other members” of the Australian industry, or the nature and extent of the competition arising from their participation in the Australian industry, or the effect that any such competition had or might have had in relation to contract negotiations of the type considered by the Commission. There was, in short, no apparent evidentiary basis for Yara’s assertion that competition from unidentified other “members” of the Australian industry would have prevented the Australian industry from achieving the “undumped” prices calculated by the Commission as part of the analysis of injury to the Australian industry.

105    The Commissioner devoted an entire section of the Commission Report to the submissions it had received which asserted that factors other than dumping may have caused the relevant injury to the Australian industry: see ADCR at section 9.5. The Commissioner agreed that “price depression resulting from competition between the Australian industry manufacturers (or other factors) should not be attributed to dumping”: ADCR at section 9.5.7. It is also tolerably clear from a fair reading of the Commission Report that the Commissioner had independently considered whether other factors may have been at play in causing injury to the Australian industry and was astute not to attribute any such injury to the dumping in question.

106    It is somewhat unclear whether, in the review application before the Review Panel, Yara contended that the Commissioner had failed to consider whether the injury to the Australian industry had been caused by factors other than dumping, or advanced any other argument based on the Commissioner’s alleged non-compliance with s 269TAE(2A). If it did, those arguments were correctly rejected by the Review Panel’s finding, referred to earlier, that the Commissioner’s assessment and analysis of the price and volume effects of the dumping had not been shown to be unreasonable or erroneous.

107    There is, in summary, no basis for Yara’s contention that the Commissioner, the Review Panel or the Minister erred in law by failing to consider whether any injury to the Australian industry was being caused by factors other than the exportation of ammonium nitrate in question. Nor is there any basis for the contention that the Commissioner failed to comply with the “non-attribution requirement” in s 269TAE(2A) of the Customs Act.

Failure to consider the benefit to Australian industry counterparties

108    Yara’s third complaint concerning the finding that the dumping had caused, or was causing, material injury to the Australian industry was that the Commissioner, the Review Panel, and ultimately the Minister, failed to have regard to the injury to the Australian industry as a whole. The basis of that complaint was that the evidence revealed that two of the seven examples of contract negotiations analysed by the Commission involved negotiated sales of ammonium nitrate by CSBP to Dyno Nobel and one of the negotiations resulted in a sale by Queensland Nitrates to Orica. Dyno Nobel and Orica were both part of the Australian industry which produced ammonium nitrate or like goods. They were also providers of explosives and associated services. It may be inferred that they occasionally purchased ammonium nitrate in Australia in pursuance of that part of their business.

109    Yara contended that the Commission failed to take into account the fact that Dyno Nobel and Orica had obtained a benefit when they purchased ammonium nitrate as a result of the three contract negotiations in question. The benefit was said to arise from the lower contract prices resulting from the dumping of the exported ammonium nitrate. In Yara’s submission, the Commission was required to take that fact into account because s 269TG(1) and (2) required consideration to be given to the question of material injury to the “Australian industry producing like goods” as a whole, and Dyno Nobel and Orica were part of that industry. The Commission’s failure to consider the benefit derived by Dyno Nobel and Orica as purchasers of ammonium nitrate was said to involve an error of law, an improper exercise of power by reason of failure to account for a relevant consideration and, alternatively, an unreasonable exercise of the discretion to publish a dumping notice.

110    It may perhaps be accepted that the Commission did not expressly take into account, in assessing the extent of the injury to the Australian industry from the dumped goods, that Dyno Nobel and Orica may have derived a benefit, as purchasers of ammonium nitrate in the three contract negotiations in question, arising from the suppressed contract prices. The same can perhaps be said for the Review Panel, at least to the extent that the Review Panel approved or accepted the Commissioner’s findings concerning the materiality of the injury to the Australian industry. It does not follow, however, that the Commissioner, the Review Panel or the Minister erred in law as contended by Yara. Nor does it follow that the Minister’s exercise of discretion was unreasonable.

111    The question posed by s 269TG(1) and (2) of the Customs Act is, in essence, whether material injury has, or is being, caused to an Australian industry producing goods like those that have been, or are being, exported to Australia at prices less than the amount of the normal value of the goods. The Australian industry in question here was the Australian industry producing “like goods” to ammonium nitrate. The Commissioner found, in accordance with s 269T(4) of the Customs Act, that the Australian industry which produced goods like ammonium nitrate consisted of the persons who produced ammonium nitrate in Australia. Those persons were CSBP, Orica, Queensland Nitrates, Dyno Nobel and Yara Pilbara: ADCR at section 4.1.

112    Two points should be emphasised. First, while the relevant Australian industry may consist of certain persons, it only consists of those persons insofar as they are involved in producing the relevant goods in Australia. The fact that those persons may also participate in, or be part of, related industries in Australia is essentially beside the point. Second, s 269TG is concerned with material injury to the relevant Australian industry viewed as a whole: Swan Portland Cement at 144. The relevant Australian industry as a whole may suffer material injury from the dumping of the goods in question even if certain participants in that industry may, on occasion, derive a benefit arising from their purchase of the dumped goods, particularly where those participants derive those benefits as a result of their participation in other associated or related industries.

113    To the extent that it could be said that Dyno Nobel and Orica derived any benefit from the three contracts in question, that benefit was not derived as a result of their direct participation or involvement in the relevant Australian industry – the Australian industry which produced ammonium nitrate. Any benefit they derived arose from their participation in the Australian industry which was involved in the provision of explosives and associated services. The fact that Dyno Nobel and Orica may have derived a benefit, in the form of lower prices, arising from their participation in that related or associated industry is essentially irrelevant, or at least not directly relevant, to the question of whether the Australian industry which produced ammonium nitrate suffered material injury. That is so despite the fact that Dyno Nobel and Orica were also part of that industry.

114    Yara’s argument based on the fact that Dyno Nobel and Orica may have derived a benefit from three of the relevant contract negotiations that were considered by the Commission, albeit a benefit arising from the fact that on those occasions they were purchasers of ammonium nitrate, also misconceives the nature and purpose of the Commissioner’s analysis of the relevant contract negotiations. The nature and purpose of the analysis was to determine whether the dumping of ammonium nitrate exported from Sweden, China and Thailand had resulted in a reduction of the prices that Australian producers of ammonium nitrate were able to secure. The Commissioner found that the dumping of the exported ammonium nitrate had caused a significant reduction in prices: ADCR at section 9.2.2. While the Commissioner went on to consider whether the reduced prices the Australian producers were able to secure had affected their profits, that analysis was essentially directed to the profits earned by the producers from their sales. It was not directed at the profitability of the corporate entities generally, or to profits that may have been earned by the producers from other divisions or sections of their businesses.

115    Even if the fact that Dyno Nobel and Orica derived a potential benefit, in their capacity as purchasers of ammonium nitrate in three of the relevant contract negotiations, could be said to be relevant to the issue of whether the Australian industry had suffered material injury, it still does not follow that the Commission’s apparent failure to have regard to that fact amounted to an error of law. Nor does it follow that the Minister’s decision involved an unreasonable exercise of discretion. That is so for at least three reasons.

116    First, it cannot be said that the Minister was required to consider any “corresponding benefit” that members of the Australian industry may have derived by virtue of them being, on occasion, purchasers of ammonium nitrate. The “corresponding benefit to the Australian industry counterparties” was not a mandatory relevant consideration in the determination of whether there had been material injury to the industry. Subsection 269TAE(1) sets out a number of considerations that the Minister “may” have regard to in determining the question of material injury to the industry. Those considerations include the effect that the exportation of goods may have on the price paid for goods manufactured in Australia and the effect that the exportation of the goods may have on “relevant economic factors”: s 269TAE(1)(f) and (g) of the Customs Act. “Relevant economic factors” include “the level of profits earned in the industry, that are attributable to the production or manufacture of goods of that kind, or like goods”: see s 269TAE(3)(e) of the Customs Act. There is nothing to suggest that “corresponding benefit[s]” of the sort relied on by Yara are relevant considerations, let alone mandatory considerations.

117    Second, the question of whether the dumping of goods has caused material injury is, like the question of causation, ultimately a question of fact for determination by the Commissioner, the Review Panel and, ultimately, the Minister. It is a matter for the Commissioner, the Review Panel or the Minister to determine the relevance and weight to be given to the evidence that may bear on the question of material injury. The failure to consider a particular fact or item of evidence does not, in and of itself, constitute an error of law. Yara’s argument based on the benefits that may have been derived by Dyno Nobel and Orica ultimately amounts to nothing more than a challenge to factual findings made by the Commission.

118    Third, there is, in any event, no evidentiary basis for concluding that any benefit that may have been derived by Dyno Nobel and Orica by virtue of them being purchasers in three of the relevant contract negotiations compelled a conclusion that the dumping of the exported ammonium nitrate had not caused material injury to the relevant Australian industry. Yara did not point to any evidence that was before the Commission that quantified any benefit that may have been derived by Dyno Nobel and Orica, let alone evidence that established that the benefit was such that it may have resulted in the Commissioner reaching a different conclusion in respect of material injury to the Australian industry which produced ammonium nitrate and like goods.

119    Yara’s contention that the Commissioner (or the Review Panel or the Minister) erred in law by failing to have regard to a relevant consideration, that being some unquantified benefit that two industry participants may have derived in their capacity as purchasers, as opposed to producers, of ammonium nitrate, has no merit and must be rejected. There is no basis for the contention that, in failing to have regard to that consideration, the Commission failed to consider the material injury to the Australian industry as a whole. Nor is there any basis for the contention that the failure to have regard to that matter meant that the Minister’s exercise of discretion was unreasonable.

Conclusions in relation to grounds 2 and 2A

120    Yara failed to demonstrate that the Commissioner, the Review Panel or the Minister made any error of law, or otherwise improperly exercised their powers, in concluding that the dumping of ammonium nitrate exported from Sweden, China and Thailand caused material injury to the Australian industry which produced ammonium nitrate. Yara also failed to establish that the Minister’s exercise of discretion was unreasonable having regard to any finding made by the Commissioner or the Review Panel in respect of the materiality of the injury caused to the Australian industry by the dumping of ammonium nitrate.

Ground 3 – s 269TAE(2C) and the cumulative effect of the exportations

121    Ground 3 of Yara’s Application was that the Commissioner and the Review Panel misconstrued s 269TAE(2C)(e) of the Customs Act. Yara contended that the Commissioner and the Review Panel erroneously construed the reference to “those goods” in s 269TAE(2C)(e)(i) and (ii) of the Customs Act as encompassing goods extending beyond the goods which had been exported to Australia and were subject to investigation. The result was, in Yara’s submission, that the Commissioner and the Review Panel erroneously cumulated the effect of the exportation of the goods to Australia from Sweden, China and Thailand.

122    Subsection 269TAE(1) provides that the Minister may have regard to certain facts or circumstances in determining, for the purposes of s 269TG, whether material injury to an Australian industry has been or is being caused because of any circumstances in relation to the exportation of goods to Australia. The operation of s 269TAE(1) is subject to s 269TAE(2C), which provides that, in considering the effect of exportations of goods to Australia from different countries, the Minister can only consider the cumulative effect of those exportations in certain circumstances. Subsection 269TAE(2C)(e) specifies one of those circumstances. It relevantly provides:

(2C)    In determining, for the purposes referred to in subsection (1) or (2), the effect of the exportations of goods to Australia from different countries of export, the Minister should consider the cumulative effect of those exportations only if the Minister is satisfied that:

…

(e)    it is appropriate to consider the cumulative effect of those exportations, having regard to:

(i)    the conditions of competition between those goods; and

(ii)    the conditions of competition between those goods and like goods that are domestically produced.

123    The exportations of ammonium nitrate in question in this case emanated from three countries: Sweden, China and Thailand. The question arose whether, in considering whether the exportations had caused material injury to the Australian industry, the cumulative effect of the exports from those three countries could be considered.

124    The Commissioner concluded that it was appropriate to consider the cumulative effect of the allegedly dumped exports from Sweden, China and Thailand. The Commissioner reasoned as follows (ADCR at section 7.5):

For the purposes of subsection 269TAE(1), in determining the effect of the exportations of the goods to Australia from different countries of export, the Minister should consider the cumulative effect of those exports in accordance with subsection 269TAE(2C).

Subsection 269TAE(2C) specifies that, in relation to a dumping investigation, where exports from more than one country are the subject of investigations resulting from applications under section 269TB that were lodged on the same day (as is the case in this investigation), the cumulative effects of such exports may be assessed if:

•    the margin of dumping established for each exporter is not negligible; and

•    the volume of dumped goods that have been exported to Australia is not negligible; and

•    cumulative assessment is appropriate having regard to the conditions of competition between the imported goods and between the imported goods and like goods that are domestically produced.

Having regard to the information provided in the application, and as outlined in Chapter 3 of this report, the Commission is satisfied that the conditions of competition between the goods, and between the goods and like goods that are domestically produced, are similar.

The Commission therefore considers that it is appropriate to consider the cumulative effect of the allegedly dumped exports from China, Sweden and Thailand, given that:

•    the margin of dumping for each exporter is not negligible and is above 2 per cent;

•    the volume of exports from each country is not negligible and is above 3 per cent of the total volume of imports; and

•    a cumulative assessment is appropriate having regard to the conditions of competition between the imported goods and the conditions of competition between the imported goods and like goods that are domestically produced.

(Emphasis added)

125    Yara submitted to the Commissioner that the goods it exported from Sweden did not compete with the goods exported from China and Thailand and therefore the effect of the exportation of the goods from Sweden should not be cumulated with the effect of the exportations from China and Thailand. The Commissioner rejected that submission. One of the considerations which led the Commissioner to reject Yara’s submission was that the Commission had “information that Yara has competed, at dumped prices, directly with certain Australian industry members for a significant contract during the investigation period”.

126    One of Yara’s reviewable grounds before the Review Panel was that the effect of its exports from Sweden should not be cumulated with the exports from China and Thailand. One of the arguments Yara advanced in support of that ground was that it was impermissible for the Commission to have had regard to one of the instances where Yara was said to have competed, at dumped prices, directly with Australian industry members for a significant contract during the investigation period. Yara argued that the Commission could not have regard to that instance because the relevant negotiations had not resulted in any sale, and therefore no “exportations” had resulted from the negotiations. It followed, so Yara argued, that the Commission could not have regard to the goods the subject of those negotiations because the reference to “those goods” in s 269TAE(2C)(e) was a reference to goods that had been exported.

127    The Review Panel rejected that argument. It reasoned as follows:

In response to Yara’s submission that there had been no “exportations” in relation to this tender and, therefore, the bid is not legally relevant to cumulation, the ADC found that unlike the assessment required under s.269TAE(1), which requires the Minister to determine actual (or potential) injurious outcomes (that is, the effect of the exportation of goods to Australia on the Australian industry), the assessment under s.269TAE(2C)(e) is concerned with identifying which goods are in competition with each other (for the purpose of considering the cumulative effect of those exportations). I would agree with the ADC’s interpretation of the legislative provision, that they are separate assessments. I consider that the reference to “exportations” in the chapeau of s.269TAE(2C)(e) is in respect of considering the “cumulative effect” and not in respect of the assessment of the “conditions of competition”. I disagree with Yara’s interpretation in its written response during the Fourth Conference, that when referring to the chapeau of s.269TAE(2C) that the section is concerned with the “effect of the exportations of goods to Australia”. I consider that Yara has taken the emphasised phrase out of context and that in fact while s.269TAE(1) and (2) are concerned with the effect of exportations of goods to Australia, s.269TAE(2C) is concerned with whether “for the purposes referred to in subsection (1) or (2)”, the Minister should consider the cumulative effect of those exportations, setting out the various requirements to satisfy the Minister. One such requirement for determining if it is appropriate to consider cumulation is to have regard to the “conditions of competition” under s.269TAE(2C)(e), which as stated by the ADC, is separate analysis. I consider that the ADC’s interpretation of the legislation is reasonable and agree that it would be open to the ADC to consider all genuine offers to supply ammonium nitrate in identifying which goods are in competition with each other, in accordance with s.269TAE(2C)(e). Yara has not demonstrated that the relevant bid is not legally relevant to cumulation.

(Emphasis by underlining in original)

128    Yara contended on the present application that it is implicit, if not explicit, in the Review Panel’s reasoning that it construed the reference to “those goods” in s 269TAE(2C)(e)(i) and (ii) of the Customs Act as “encompassing goods extending beyond the ammonium nitrate goods that had been exported to Australia and which were subject to investigation”. Yara submitted that that construction of s 269TAE(2C)(e) was incorrect and, as a result, the Review Panel erroneously cumulated the effect of the exportation of the goods to Australia from Sweden, China and Thailand.

129    There could be little doubt that, if the Review Panel construed s 269TAE(2C)(e) as Yara contended, that would constitute an error of law. The reference to “those goods” in s 269TAE(2C)(e)(i) and (ii) is plainly a reference to the goods referred to in the chapeau to s 269TAE(2C); that is, the references to “exportations of goods to Australia from different countries” and “those exportations”. In the specific context of this matter, the references to “those goods” in s 269TAE(2C)(e)(i) and (ii) were references to the ammonium nitrate to Australia exported from Sweden, China and Thailand which were the subject of the Commission’s dumping investigation and report. Subsection 269TAE(2C)(e) directs attention to the conditions of competition between the relevant exported goods – in the present case, the ammonium nitrate exported from Sweden, China and Thailand – and the conditions of competition between those exported goods and “like goods that are domestically produced”.

130    The problem for Yara is that, when the relevant passage from the Review Panel’s report is read fairly and in context, it cannot be accepted that the Review Panel construed s 269TAE(2C) in the erroneous way suggested by Yara. That is so for a number of reasons.

131    First, it is clear that the Review Panel agreed with the Commissioner’s construction of s 269TAE(2C)(e). It is equally clear that the Commissioner construed the reference to “those goods” in s 269TAE(2C)(e)(i) and (ii) as referring to the relevant exported goods – the ammonium nitrate exported to Australia from Sweden, China and Thailand.

132    Second, the issue concerning the correct construction of s 269TAE(2C)(e)(i) and (ii) arose in the context of the question whether it was permissible for the Commission and the Review Panel to consider Yara’s unsuccessful contract negotiation in determining whether it was appropriate to consider the cumulative effect of the exportations from Sweden, China and Thailand. A fair reading of the Review Panel’s reasons would suggest that, like the Commissioner, the Review Panel considered that it was relevant and permissible to have regard to Yara’s unsuccessful contract negotiation in determining that question because, even though the negotiation did not result in a sale, it was nevertheless relevant to a consideration of the “conditions of competition” referenced in s 269TAE(2C)(e)(i) and (ii). Specifically, the details of the negotiation in question bore on whether the conditions of competition between the ammonium nitrate exported from Sweden, China and Thailand, and the conditions of competition between the exported goods and the domestically produced ammonium nitrate, were such that it was appropriate to consider the cumulative effect of the exportations from Sweden, China and Thailand. The Review Panel reasoned, in that regard, that it was “open to the [Commission] to consider all genuine offers to supply ammonium nitrate in identifying which goods are in competition with each other, in accordance with s.269TAE(2C)”: ADRPR at [288].

133    Third, while the Review Panel’s reasoning relating to the proper construction of s 269TAE(2C)(e)(i) and (ii) is by no means easy to follow or comprehend, nowhere does the Review Panel say, in terms, that the reference to “those goods” is not a reference to the exported goods.

134    It follows that Yara’s contention that the Review Panel misconstrued s 269TAE(2C)(e) must be rejected.

135    It should perhaps also be noted that, even if the Review Panel did misconstrue s 269TAE(2C)(e)(i) and (ii) in determining that it was permissible to have regard to Yara’s unsuccessful contract negotiation, it is by no means apparent that the Review Panel’s finding that it could have regard to that particular contract negotiation was material to the finding that it was open to consider the cumulative effect of the exportations in question. The reasons of both the Commissioner and the Review Panel reveal that there were a number of considerations, aside from the single contract negotiation in question, that led them to the conclusion that the conditions of competition between the exported goods, and the conditions of competition between the exported goods and the domestically produced goods, were such that it was appropriate to consider the cumulative effect of the exportations from Sweden, China and Thailand.

Ground 4 – failure to follow procedures and the 2012 Ministerial Direction

136    Ground 4 of Yara’s Application is that procedures that were required to be observed in connection with the making of the decision were not observed, within the meaning of s 5(1)(b) of the ADJR Act, and/or that the decision involved an improper exercise of power within the meaning of s 5(1)(e) and s 5(2)(b) of the ADJR Act. Yara contended, in short, that neither the Commission nor the Review Panel considered whether the injury that the Commission found had been caused by the dumped goods was greater than that likely to occur in the normal ebb and flow of business, as was required by the 2012 Ministerial Direction.

137    It may of course be accepted that the 2012 Ministerial Direction includes a statement that the injury “must also be greater than that likely to occur in the normal ebb and flow of business”. That statement, however, must be considered in the context of the surrounding paragraphs of the Direction. The relevant paragraphs are as follows (with the statement relied on by Yara highlighted in bold):

I now direct you as follows in connection with carrying out or giving effect to your powers and duties under Part XVB of the Act.

My direction is to be construed as subject always to the law, including Part XVB. Consistently with section 269TA(2) my direction does not deal with the carrying out or the giving effect to your powers or duties in relation to a particular consignment of goods or to like goods to goods in a particular consignment but deals instead with the general principles for carrying out or giving effect to your powers. You must still have regard to the facts of the individual case. It is not enough to assert that because there is dumping or subsidisation injury automatically follows.

I direct that identification of material injury be based on facts and not on assertions unsupported by facts.

Consistent with Australia’s international trade obligations under the World Trade Organization’s Anti-Dumping Agreement and Agreement on Subsidies and Countervailing Measures, I would expect it to be shown that the industry is suffering injury, and that the injury caused by dumping or subsidisation is material in degree. The injury must also be greater than that likely to occur in the normal ebb and flow of business.

Subject always to the law, I direct you to consider material injury to be injury that is not immaterial, insubstantial or insignificant. I direct that there is no threshold amount that is capable of general application. Rather, identifying material injury will depend upon the circumstances of each case and will differ from industry to industry and from time to time. A material injury assessment involves a range of factors that are considered together; no one or several of these factors can necessarily give decisive guidance.

In the past some uncertainty has arisen over establishing the requirements for material injury where other factors may be contributing to injury suffered by the industry. Injury caused by other factors must not be attributed to dumping or subsidisation. However, I direct that dumping or subsidisation need not be the sole cause of injury to the industry.

Whether dumping or subsidisation is the sole cause of injury or whether there are other contributing factors, I direct that the injury caused by dumping or subsidisation must be material in degree. This is consistent with Australia’s international trade obligations under the World Trade Organization’s Anti-Dumping Agreement and Agreement on Subsidies and Countervailing Measures.

(Underlining in original, emphasis in bold added)

138    It can be seen that the text of the Direction contains a number of specific directions, denoted or preceded by the words “I direct”, as well as some explanatory content. The statement that the injury “must also be greater than that likely to occur in the normal ebb and flow of business” would appear to be more of an explanatory statement, as opposed to a specific or express direction. It is certainly not immediately preceded by the words “I direct”. More will be said about this later.

139    The passage of the Commission Report which Yara claimed exposed the Commissioner’s error was the following passage (ADCR at section 9.7):

Yara submits that injury would need to be greater than that likely to occur in the normal ebb and flow of business and greater than the profit trend established over the injury analysis period. In order to establish the profit in the normal ebb and flow of business, in its submission, Yara duplicated the index of profit variations from the application, which shows a 12.5 per cent reduction in the applicants’ aggregated profit from 2014 to 2017.

The Commission reiterates that the ‘profit foregone’, as estimated by the Commission in its assessment of material injury, isolates the injury caused by dumping in the examples outlined in section 9.2.1 of this chapter. As the assessment isolates the injury caused by dumping, the Commission is satisfied that the injury to the Australian industry is greater than that likely to occur in the normal ebb and flow of business.

(Footnotes omitted, emphasis in bold added)

140    Similar reasoning is to be found in the Commission’s reinvestigation report. As noted earlier, the Review Panel requested that the Commissioner undertake a reinvestigation of, among other things, the finding that any injury caused by the dumping was material. The Commissioner’s reinvestigation of that finding addressed, in particular, the calculation of the profit forgone as a result of the dumping. The Commissioner’s findings in respect of the reassessment of the materiality of the injury included the following:

Having regard to both the profit forgone in the investigation period and post-investigation period, the Commission considers that the injury caused by the dumped goods is material to the Australian industry as a whole, given that the Australian industry applicants represent 78 per cent of the Australian industry’s total production volume.

Further, the Commission found a causal relationship between the dumped goods and the injury to the Australian industry, and the profit forgone is directly attributable to the dumped imports. The price and volume injury found to have been caused by dumping in the seven examples outlined in section 9.2.1 of REP 473 is not injury that occurred within the normal ebb and flow of business.

Further, the Commission’s assessment of material injury is not based on a coincidence analysis where trends are observed in variables over time and findings made based upon these relative trends. Therefore, the Commission found that the injury to the Australian industry caused by dumping is greater than that likely to occur in the normal ebb and flow of business.

The Commission considers that, in order to determine whether the profit forgone is material in the context of the Australian industry’s profit and therefore material to the Australian industry as a whole, it is more appropriate to calculate the profit forgone as a percentage of the Australian industry applicants’ aggregated profit.

(Footnote omitted, emphasis in bold added)

141    Grounds 4 and 5 of Yara’s application to the Review Panel were that the injury was not material and was no greater than that likely to occur in the normal ebb and flow of business. In its submissions in support of those grounds, Yara challenged the Commissioner’s findings in relation to the profit forgone which was solely attributable to dumping and contended that the Commissioner had not tested the materiality of the profit forgone by reference to the normal ebb and flow of business. The Review Panel rejected Yara’s arguments in that regard. It reasoned as follows (ADRPR at [453]-[455]):

… The ADC was able to be satisfied that the injury was greater than likely to occur in the normal ebb and flow of business, arising from its finding that the profit forgone in respect of the seven examples was determined using a ‘but for’ analysis and was therefore solely attributable to dumping.

While the reasoning of the ADC is somewhat convoluted and may not be as clear as it could be, I do not consider it to be unreasonable in light of the particular circumstances of the ammonium nitrate market, as detailed above, and in light of the use of the counterfactual methodology for the quantification of the profits foregone [sic], to determine if the injury was material, which also resulted in the finding that the injury so quantified was solely attributable to dumping.

Therefore, I do not consider that it has been demonstrated that the ADC’s finding that the injury caused by dumping was material and greater than that likely to occur in the normal ebb and flow of business, is not the correct or preferable decision.

(Emphasis in bold added)

142    It may be noted that the Review Panel’s interpretation of the Commissioner’s finding was that the Commissioner had found that the injury caused solely by dumping was both material and greater than that likely to occur in the normal ebb and flow of business.

143    Yara submitted that the Commissioner’s reasoning in respect of the injury referable to the normal ebb and flow of business was erroneous and revealed that the Commissioner failed to follow the direction in the 2012 Ministerial Direction that the injury from the alleged dumping must be greater than that likely to occur in the normal ebb and flow of business. In Yara’s submission, the Commissioner’s reasoning reveals that, while the Commissioner’s analysis isolated the injury caused by dumping from other causes, the Commissioner did not go on to determine whether the injury which was caused solely by dumping was greater than that likely to occur in the normal ebb and flow of business. Rather, the Commissioner appears to have simply reasoned that, because the injury it had isolated was caused solely by dumping, it must have been greater than that likely to occur in the normal ebb and flow of business. In Yara’s submission, the Commissioner was required to first isolate the injury attributable to dumping from other causes, and then separately compare that injury with any injury likely to occur in the normal ebb and flow of business. It was on that basis that Yara contended that the Commission failed to observe procedures that it was required by law to follow, or otherwise improperly exercised its power in making the decision.

144    It is, with respect, somewhat difficult to understand some of the Commissioner’s reasoning in respect of the issue of whether the injury caused by the dumping was greater than that likely to occur in the normal ebb and flow of business. Much the same can be said in respect of the Review Panel’s reasoning in respect of this issue, which is rather ironic given that the Review Panel suggested that the Commissioner’s reasoning was “somewhat convoluted and may not be as clear as it could be”: ADRPR at [454]. It nevertheless cannot be accepted that either the Commissioner or the Review Panel failed to consider whether the injury caused by dumping was greater than that likely to occur in the normal ebb and flow of business and thereby failed to observe a procedure that they were required to observe, or otherwise improperly exercised its power in making the decision.

145    A fair reading of both the Commissioner’s reasons and the Review Panel’s reasons indicates that both expressly found that the injury found to have been caused by the relevant dumping was greater than that likely to occur in the normal ebb and flow of business. They arrived at that finding by adopting, or, in the case of the Review Panel, endorsing or approving, a “but for” analysis which isolated the injury to the Australian industry caused by the dumping in question from any injury that may have been caused by any other factors, including factors that may have caused injury in the normal ebb and flow of business. Both the Commissioner and the Review Panel reasoned, in effect, that the injury that was found to be solely attributable to dumping was necessarily, or by definition, injury that was separate to, or over and above, any injury that could have been considered to be merely the result or product of the normal ebb and flow of business. The injury caused by the dumping was, in that respect, greater than any injury caused by the normal ebb and flow of business.

146    There is nothing inherently wrong with the approach taken by the Commission to the question whether the injury caused by the dumping was greater than that likely to occur in the normal ebb and flow of business. The reasoning is somewhat convoluted and difficult to follow, but it could not be said to be illogical or irrational.

147    Yara’s argument that the Commissioner’s reasoning was erroneous effectively hinged on the contention that the Commission was required to take a two-stage quantitative analysis. First, the Commission was required to isolate the injury caused by dumping from other causes. Second, the Commission was required to compare the injury found to have been caused solely by the dumping with any injury caused by the normal ebb and flow of business, and thereby determine if the injury caused by dumping alone was greater than the injury caused by the normal ebb and flow of business. Yara contended that this two-stage analysis was required because s 269TAE(2A) of the Customs Act requires the injury caused by the dumping to be isolated from other causes, and that the 2012 Ministerial Direction separately requires that the injury caused by the dumping be greater than the injury caused by the normal ebb and flow of business.

148    The problem for Yara is that neither the relevant provisions of the Customs Act, nor the 2012 Ministerial Direction, mandates or compels any such two-stage quantitative analysis.

149    Subsection 269TAE(2A) of the Customs Act provides, rather self-evidently, that any injury to an Australian industry that was caused by a factor other than the alleged dumping cannot be attributed to the dumping. It is essentially concerned with the question of causation and involves a qualitative assessment of the injury that may have been suffered by an Australian industry. It effectively requires the Minister to disregard any injury that may have been caused to the industry by other factors. It does not itself necessarily require the quantification of the injury solely attributable to dumping.

150    The statement in the 2012 Ministerial Direction that injury must be “greater than that likely to occur in the normal ebb and flow of business” is directed to more quantitative considerations. As the surrounding sentences in the Direction make clear, the question to which that statement is directed is whether the injury caused by the dumping is “material in degree” and is not “immaterial, insubstantial or insignificant”. There is, however, no “threshold amount that is capable of general application”.

151    Even if s 269TAE(2A) must be read together with the statement in the Direction that the injury must be more than that likely to occur in the normal ebb and flow of business, that does not necessarily compel the two-stage quantitative analysis propounded by Yara. The combined operation of those provisions does not necessarily require the Minister to approach the question of the materiality of the injury caused by dumping by first quantifying the injury solely caused by the dumping, and then quantifying the injury likely to occur in the normal ebb and flow of business, before comparing the two figures to determine if the former is greater than the latter. The complexity of such an approach seems to be entirely at odds with what Lockhart J in Swan Portland Cement said was supposed to be a “practical exercise” (at 144).

152    The Commissioner did not, as contended by Yara, fail to determine whether the injury caused by the dumping was greater than the injury likely to occur in the normal ebb and flow of business. Rather, the Commissioner concluded that the injury caused by the dumping, in the form of reduced prices and profit forgone by the industry, was greater than the injury likely to occur in the normal ebb and flow of business. The Commissioner was able to arrive at that conclusion by calculating the profit forgone by the industry which was directly attributable to the dumping in question, and therefore necessarily excluded any loss of profitability which may have been attributable to the normal ebb and flow of business. That form of reasoning was not contrary to, or precluded by, the relevant provisions of the Customs Act or the 2012 Ministerial Direction.

153    There is an additional problem with Yara’s contention that the Commissioner and the Review Panel, and ultimately the Minister, erred in not complying with the 2012 Ministerial Direction. The additional problem is that it is at best questionable whether the statement in the 2012 Ministerial Direction relied on by Yara is in fact a “direction” for the purposes of s 269TA of the Customs Act or, if it is, whether it is a lawful direction.

154    As noted earlier, the text of the 2012 Ministerial Direction includes some explanatory content along with a number of specific directions, generally denoted or preceded by the words “I direct”. The statement that the “injury must also be greater than that likely to occur in the normal ebb and flow of business” would appear to be more of an explanatory statement. It is certainly not immediately preceded by the words “I direct”. The immediately preceding sentence, which commences with the words “I would expect it to be shown”, would also tend to suggest that the statement in question is merely explanatory rather than directive. So too, through contrast, do the sentences which immediately follow, which both again commence with the words “I direct”.

155    It is true that the 2012 Ministerial Direction includes the more general statement: “I now direct you as follows in connection with carrying out or giving effect to your powers and duties under Part XVB of the Act”. It does not follow, however, that everything said after that general statement constitutes a “direction” for the purposes of s 269TA of the Customs Act. The Direction plainly includes some content which could not be said to be “directions in connection with carrying out or giving effect to the Commissioner’s powers and duties”.

156    It is also doubtful that it would be lawful or permissible for the Minister to direct the Commissioner that injury caused by dumping can only be material, for the purposes of s 269TG(1) and (2) of the Customs Act, if the injury found to have been caused by the dumping meets a specific quantitative requirement of being greater than that likely to occur in the normal ebb and flow of business. The requirement in s 269TG(1) and (2) is that the injury caused to the Australian industry is “material”. Other provisions, in particular s 269TAE, explain what constitutes a material injury and how a finding that injury is material can and cannot be made. It is those statutory provisions that must prevail. The Minister cannot, by giving a direction under s 269TA of the Customs Act, somehow alter, constrain or qualify those statutory provisions. It follows that the statement that the “injury must also be greater than that likely to occur in the normal ebb and flow of business” should be read as merely explaining or giving guidance as to how the Commissioner should generally approach the issue of materiality, as opposed to directing the Commissioner to apply a specific test or criterion.

157    That reading of the statement is supported by what was said by the Full Court (Black CJ, Neaves and von Doussa JJ) in ICI Australia Operations Pty Ltd v Fraser (1992) 34 FCR 564; [1992] FCA 128. The relevant legislative provisions that were in force at the time of the judgment in ICI Australia were relevantly similar to those currently in force, though recommendations to the Minister in respect of dumping duty notices under s 269TG were made by an authority known as the Anti-Dumping Authority (ADA) and the Minister’s power to give the ADA directions was found in s 12 of the Dumping Duty Act, as it was at that time. The Minister’s direction to the ADA at the time included the following (as set out at 577):

The Authority shall ensure that it recommends that anti-dumping ... action be taken only when dumping ... has caused, or is threatening, ‘material’ injury to the Australian industry producing like goods – that is, injury which is not immaterial, insubstantial or insignificant; injury which is greater than that likely to occur in the normal ebb and flow of business.

158    The Full Court said (at 577) as follows in relation to the operation and effect of the direction:

The ministerial direction binds the ADA in connection with carrying out or giving effect to its powers and duties under the ADA Act. The content of those powers and duties, however, falls to be determined on a consideration of the language of the Act. The ministerial direction cannot, and does not purport to, modify the Minister's power arising under s 269TG. The preconditions to the exercise of that power are to be found in s 269TG, not in the ministerial direction. …

(Emphasis added)

159    The Full Court went on at 577-578 to explain the meaning of “material injury” in the relevant provisions of the Customs Act in the following terms:

In the context of the legislation “material injury” is injury which is not immaterial, insubstantial or insignificant. In the practical application of that notion material injury will, in most though not necessarily in all cases, be injury which is greater than that likely to occur in the normal ebb and flow of business uninfluenced by dumping or other anti-competitive practices proscribed by the Customs Act.

Although a quantitative assessment is involved, it is essentially a practical exercise and material injury to an industry may be identified even though precise quantification of the injury is not possible. There can be no threshold figure or percentage that is capable of general application; what is material injury will depend upon the circumstances of each case and it will differ from industry to industry and from time to time.

(Emphasis added)

160    The same reasoning applies in respect of the relevant provisions of the Customs Act in their current form and to the operation and effect of the 2012 Ministerial Direction. It supports the proposition that the statement in the 2012 Ministerial Direction that the “injury must also be greater than that likely to occur in the normal ebb and flow of business” is merely explanatory, or provides guidance to, the Commissioner. It does not modify or supplant the relevant statutory provisions, or establish a criterion or specific test that must be applied by the Commissioner.

161    It is ultimately unnecessary to reach a concluded view as to whether or not the statement in the 2012 Ministerial Direction that the injury caused by dumping must be “greater than that likely to occur in the normal ebb and flow of business” constitutes a direction with which the Commissioner was, by reason of s 269TA of the Customs Act, required to comply. Nor is it necessary to reach a concluded view as to whether, as Yara effectively contended, that statement establishes a criterion or specific test that must be applied by the Commissioner in determining whether the injury was material. That is because, for the reasons already given, Yara has not, in any event, demonstrated that the Commissioner failed to consider or comply with the statement in question. The Commissioner concluded that the injury that it had found had been caused by the dumping in question was greater than that likely to occur in the normal ebb and flow of business in the sense that the injury was not one which had merely been caused by the normal ebb and flow of business. The injury was, in other words, over and above any injury likely to occur in the normal ebb and flow of business. The Commissioner was not required to engage in the two-stage quantitative assessment suggested by Yara.

162    Ground 4 of Yara’s challenge to the Minister’s decision must accordingly be rejected.

Ground 5 – erroneous standard of review

163    Ground 5 of Yara’s Application is that procedures that were required by law to be observed in connection with the making of the decision under review were not observed, within the meaning of s 5(1)(b) of the ADJR Act, and/or the Review Panel and the Minister failed to carry out their statutory functions in connection with the decision.

164    Yara’s arguments in support of this ground focussed on the Review Panel’s review of the Minister’s initial decision to publish a dumping duty notice. That decision was a “reviewable decision” pursuant to s 269ZZA(1)(a) of the Customs Act, and interested parties, including Yara, applied for a review of it pursuant to s 269ZZC of the Customs Act. The Review Panel accepted that Yara’s review grounds were reasonable and conducted a review in relation to those grounds pursuant to s 269ZZG(5)(c) of the Customs Act.

165    Yara contended that, in conducting the review of the Minister’s initial decision, the Review Panel was required to determine whether it was satisfied that the decision under review was the “correct or preferable decision”. That requirement arose by reason of s 269ZZ(1), which provides that the Review Panel must determine the matter “in like manner as if it were the Minister” and “having regard to the consideration to which the Minister would be required to have regard if the Minister were determining the matter”. In Yara’s submission, the Review Panel failed to affirm whether the Minister’s original decision was the correct or preferable decision. Rather, so Yara contended, the Review Panel simply addressed Yara’s review grounds and determined whether the approach taken by the Commissioner in respect of the issues raised by the review grounds, or the Commissioner’s findings in respect of those issues, were reasonable in the circumstances. That was said to be the “wrong standard of review”.

166    Yara identified a number of passages in the Review Panel’s report which it submitted clearly revealed the Review Panel’s erroneous approach to the conduct of the review. Those passages will be considered in detail later. Before doing so, it is necessary to give close consideration to the nature of the review that the Review Panel is required to conduct having regard to the relevant provisions of pt XVB of the Customs Act.

The nature of the review to be conducted by the Review Panel

167    Ground 5 of Yara’s Application raises an important issue in relation to the nature of the review that the Review Panel is required to conduct when reviewing a Minister’s decision to make a declaration under s 269TG of the Customs Act. Is the Review Panel required, in effect, to conduct a full merits review of the Minister’s decision, including the findings and reasons in the Commission’s report produced pursuant to s 269TEA of the Customs Act, and determine for itself whether the Minister’s decision was the correct or preferable decision? Or is the Review Panel only required to conduct a review in relation to reviewable grounds in the review application and determine whether one or more of those grounds establish that the Minister’s decision was not the correct or preferable one? The answers to those questions are regrettably not entirely straightforward having regard to the terms of the legislation.

168    The provisions which are relevant to the nature of the review to be conducted by the Review Panel are contained in div 9 of pt XVB of the Customs Act. The key provisions are referred to or set out earlier in these reasons. At risk of some repetition, the following important aspects of the statutory scheme in relation to reviews should be emphasised.

169    First, an interested party commences an application for review by filing an application which includes, among other things, a statement “setting out the grounds on which the applicant believes the reviewable decision is not the correct or preferable decision”: s 269ZZE(1)(c) and (2)(b) of the Customs Act.

170    Second, the Review Panel may reject a review application if, relevantly, it is not satisfied that the applicant has provided any “information setting out reasonable grounds for the reviewable decision not being the correct or preferable decision”: s 269ZZG(2)(a) of the Customs Act. If the Review Panel does not reject an application on that basis, the Review Panel must “accept” those grounds of review it is satisfied they are “reasonable grounds for the reviewable decision not being the correct or preferable decision” (the “reviewable grounds”) and reject those that it is satisfied are “not reasonable grounds for the reviewable decision not being the correct or preferable decision” (the “non-reviewable grounds”): s 269ZZG(5)(a), (b), (c) and (d) of the Customs Act.

171    The requirement in s 269ZZG(5)(b)(i) and (c) that the Review Panel “accept” those grounds of review which it is satisfied “are reasonable grounds for the reviewable decision not being the correct or preferable decision” is awkwardly expressed and somewhat confusing. It cannot mean that the Review Panel must, before accepting the grounds, be satisfied that they in fact establish that the reviewable decision was not the correct or preferable decision. Nor can it mean that, by accepting the reviewable grounds, the Review Panel accepts that the reviewable decision was not the correct or preferable decision for the reasons advanced in the grounds. If that were so, there would be no point in the Review Panel proceeding to conduct a review in relation to those grounds. The only sensible construction of s 269ZZG(5)(b)(i) and (c) is that the Review Panel must accept, as a basis for its review, those grounds that it is satisfied identify a reasonably arguable basis upon which it might or could be found, upon review, that the reviewable decision was not the correct or preferable decision.

172    Third, the Review Panel “must conduct the review in relation to [the reviewable grounds] and no other grounds”: s 269ZZG(5)(a), (b) and (c) of the Customs Act. This is a particularly important point to emphasise. It is clear that the review is not a de novo review or a merits review which is entirely at large. The Review Panel must restrict itself to a consideration of the grounds that it accepted were reasonable grounds for the reviewable decision not being the correct or preferable decision.

173    Fourth, the Review Panel must publish a notice which, among other things, invites interested parties in relation to the reviewable decision to lodge submissions concerning the application, and the interested parties may make submissions in accordance with that notice within 30 days after the publication of the notice: s 269ZZI and s 269ZZJ of the Customs Act.

174    Fifth, in conducting the review, the Review Panel must not have regard to any information other than: first, “relevant information”; second, “any conclusions based on the relevant information that are contained in the application for the review or in any submissions received under s 269ZZJ within the period of 30 days referred to in that section”; third, any reinvestigation report given to the Review Panel by the Commissioner in accordance with s 269ZZL; and fourth, any “further information” provided at a conference held by the Review Panel “to the extent that it [the further information] relates to the relevant information” and “any conclusions reached at the conference on that relevant information”: see s 269ZZK(4)(a), (b) and (4A) and s 269ZZHA(2) of the Customs Act.

175    The “relevant information”, in the case of a review of a decision made pursuant to an application under s 269TB, relevantly consists of information to which the Minister had regard, or was required to have regard, “when making the findings set out in the report under s 269TEA to the Minister”. The fact that the Review Panel can only have regard to specific and limited information again indicates that the review is not a full or de novo merits review.

176    Sixth, the Review Panel must “make a report to the Minister on the application” by either “recommending that the Minister affirm the reviewable decision” or “recommending that the Minster revoke the reviewable decision and substitute a specified new decision”: s 269ZZK(1) of the Customs Act. The report must be made within either 60 days of the Review Panel’s notification of the review, or within 30 days of the date that the Commissioner gives the Review Panel any reinvestigation report under s 269ZZL: s 269ZZK(3) of the Customs Act. That is, on just about any view, a relatively short time frame for the review given the potential complexities that may be involved in decisions concerning dumping duty notices.

177    Seventh, if, in conducting the review, the Review Panel is required to “determine any matter ordinarily required to be determined by the Minister”, then the Review Panel must determine the matter “in like manner as if it were the Minister” and “having regard to the consideration to which the Minister would be required to have regard if the Minister were determining the matter”: s 269ZZ(1) of the Customs Act.

178    Eighth, after receiving the Review Panel’s report, the Minister must either affirm the reviewable decision or revoke that decision and substitute a new decision: s 269ZZM(1) of the Customs Act. The Minister’s decision must be made within 30 days of receiving the report unless the Minister considers that there are “special circumstances” that prevent the decision being made within that period: s 269ZZM(1A) of the Customs Act.

179    It is tolerably clear that, in the case of a review of a decision by the Minister to make a declaration under s 269TG(1) or (2) of the Customs Act, the Review Panel must ultimately consider and determine whether the decision to make that declaration was the “correct or preferable decision”. That is apparent from, among other things, the fact that the Review Panel is required to conduct the review in relation to the reviewable grounds, being the grounds that the Review Panel accepted were “reasonable grounds for the reviewable decision not being the correct or preferable decision”.

180    It is equally clear that, in determining whether the decision to make the declaration was the correct or preferable decision, the Review Panel must put itself in the Minister’s shoes, so to speak. It must make or arrive at that determination “as if it were the Minister” and having regard to those considerations “to which the Minister would be required to have regard if the Minister were determining the matter”: s 269ZZ(1) of the Customs Act. It follows, in the case of a decision under s 269TG, that the Review Panel must ultimately have regard to, relevantly, whether the amount of the export price of the relevant goods is less than the normal value of those goods, and “because of that … material injury to an Australian industry producing like goods has been or is being caused”: s 269TG(1)(a)(i) and (2)(b) of the Customs Act. That may, in turn, require the Review Panel to have regard to the considerations in, for example, s 269TAE in determining whether material injury to an Australian industry has been or is being caused.

181    It does not follow, however, that the Review Panel’s consideration and determination of the question of whether the decision to make the declaration was the correct or preferable decision is entirely at large, or that the Review Panel is required to conduct a full or de novo merits review. Nor does it follow, as Yara seemed to suggest, that the Review Panel is required to determine whether every finding made by the Commissioner on the way to arriving at its recommendation to the Minister was the correct or preferable decision.

182    As has already been noted, the Review Panel’s conduct of the review, including its consideration of whether the Minister’s decision was the correct or preferable decision, is confined and constrained in certain respects. In particular, the Review Panel must conduct the review in relation to the reviewable grounds and no other grounds. It must also only have regard to certain information, that information essentially being the information that the Commission had regard to, or was required to have regard to, as well as any reinvestigation report. The Review Panel cannot conduct its own investigations or obtain and use further information.

183    The fact that the Review Panel is required to conduct the review only in relation to the reviewable grounds is particularly significant, especially given that the criterion for determining whether a ground is a “reviewable ground” is whether it is a “reasonable ground for the reviewable decision not being the correct or preferable decision”. What that must mean is that the nature of the review undertaken by the Review Panel is to essentially determine whether the reviewable decision is not the correct or preferable decision for any of the reasons articulated in the reviewable grounds. It is only to that extent, and on those terms, that the Review Panel is required to consider and determine whether the reviewable decision is the correct or preferable decision.

184    If, on the one hand, the Review Panel, having conducted the review, is not satisfied that the reviewable decision is not the correct or preferable decision for any of the reasons articulated in the reviewable grounds, the Review Panel would be entitled to find that the reviewable decision was the correct or preferable decision, and therefore entitled to recommend that the Minister affirm the reviewable decision. The Review Panel is not required – indeed, it is not permitted – to look beyond the reviewable grounds in order to satisfy itself that there is no other reason for finding that the Minister’s decision was not the correct or preferable decision. If, on the other hand, the Review Panel is satisfied that the reviewable decision is not the correct or preferable decision for one or more of the reasons articulated in the reviewable grounds, it would be entitled to recommend that the Minister revoke the reviewable decision and substitute a new decision.

185    What that means, as a practical matter, is that it might reasonably be expected that the Review Panel’s report, and the reasoning contained therein, will largely focus on the merits or otherwise of the reviewable grounds and the submissions advanced in support of those grounds. For example, if a reviewable ground was that the Commission had not correctly assessed and calculated the injury caused by the relevant exports, it might reasonably be expected that the Review Panel’s reasons would focus on the means by which the Commission assessed and calculated the injury and whether there was any merit in the contention that the assessment and calculation was erroneous for some reason, or not open on the material. Depending on the nature and merits of the asserted errors, it may not be necessary for the Review Panel to conduct its own separate or independent assessment and calculation of the injury caused by the exports in question.

Analysis of the Review Panel’s reasons

186    As has already been noted, Yara’s central contention in support of ground 5 was that the Review Panel failed to make determinations “in like manner” as if it were the Minister and failed to determine whether the Minister’s original decision was the correct or preferable decision. That was said to be evident from the fact that the Review Panel’s findings and reasons in respect of a number of Yara’s reviewable grounds focussed on whether the approach taken by the Commission in respect of the issues raised by the reviewable grounds, or the findings made by the Commissioner in respect of those issues, were reasonable.

187    Yara identified several parts of the Review Panel Report which were said to expose this allegedly erroneous approach to the review. Before addressing those parts of the Review Panel’s reasoning, it is appropriate to consider the more general statements made by the Review Panel in its report concerning the nature of the review it was conducting.

188    At paragraphs 10 to 12 of its report, the Review Panel stated as follows in respect of the conduct of the review:

In accordance with s.269ZZK(1) of the Act, the Review Panel must recommend that the Minister either affirm the Reviewable Decision, if they are satisfied that the decision is the correct or preferable one, or revoke it and substitute a new specified decision. In undertaking the review s.269ZZ(1) of the Act requires the Review Panel to determine a matter required to be determined by the Minister in like manner as if it were the Minister having regard to the considerations to which the Minister would be required to have regard if the Minister was determining the matter.

Subject to certain exceptions, the Review Panel is not to have regard to any information other than relevant information pursuant to s.269ZZK, i.e. information to which the ADC had regard or ought to have had regard when making its findings and recommendations to the Minister.

If a conference is held under s.269ZZHA of the Act, then the Review Panel may have regard to further information obtained at the conference to the extent that it relates to the relevant information, and to conclusions reached at the conference based on that relevant information.

(Footnote omitted)

189    It can be seen that the Review Panel accepted that it was required to determine those matters which would otherwise be required to be determined by the Minister in “like manner as if it were the Minister having regard to the considerations to which the Minister would be required to have regard if the Minister was determining the matter”. The Review Panel also accepted that, in making its recommendation to the Minister, it was required, in effect, to determine whether the decision under review was the correct or preferable decision. Yara accepted that this was a correct summary of the nature of the review that the Review Panel was required to conduct.

190    The Review Panel’s acceptance that it was required to determine whether the decision under review was the correct or preferable decision is also readily apparent in its conclusions. At paragraph 2 of the Review Panel’s report, the author stated:

For the reasons set out in this report, I have rejected the grounds of review of Glencore, DBS and Yara and consider that the Reviewable Decision is the correct and preferable decision. Accordingly, I recommend that the Minister affirm the Reviewable Decision.

(Emphasis added)

191    The concluding paragraph of the report (paragraph 458) was in relevantly identical terms.

192    Yara contended that, despite the Review Panel having correctly framed its task in paragraph 10 of its report, the Review Panel nevertheless adopted the wrong standard of review. It also contended that, despite the fact that the Review Panel expressly found that the Minister’s decision was the correct or preferable decision, the Review Panel did not in fact determine whether the Minister’s decision was the correct or preferable decision.

193    Yara relied on two particular passages from the Review Panel’s report in support of those contentions.

194    The first passage in the Review Panel Report which was said to support the contention that the Review Panel adopted the wrong standard of review related to ground 2 of Yara’s review grounds before the Review Panel. Ground 2 was that Yara’s exports, which were from Sweden, should not be cumulated with the exports from China and Thailand, in determining whether material injury to the Australian industry was being caused by the exports. Yara contended that the Commissioner was wrong to cumulate its exports with the exports from China and Thailand and criticised aspects of the Commissioner’s findings and reasons, in particular the finding that it was appropriate to consider the cumulative effect of the exports having regard to the “conditions of competition between those goods”: cf s 269TAE(2C)(e) of the Customs Act.

195    In the course of addressing Yara’s contention that the Commission had erred in considering the cumulative effect of the exportations from the different countries, the Review Panel made the following observations concerning the nature of the review it was conducting (ADRPR at [283]-[284]):

The role and powers of the Review Panel in a review is relevant, as articulated by the former Senior Member of the Review Panel (The Hon Michael Moore) in ADRP Report No. 24:

It seems to me that having regard to the fact that the Panel will ordinarily have to undertake a review in a comparatively short time frame against a background where the Commissioner will have ordinarily undertaken an extensive process of investigation and reporting, and also having regard to the fact that the Panel can require the Commissioner to reinvestigate, the Panel’s role in a review does not entail full reinvestigation of matters considered by the Commissioner and raised by interested parties in the application for review. The investigation by the Commissioner will often entail the evaluation by the Commissioner of material gathered in the investigation both from overseas and domestically. That evaluation may involve subsidiary conclusions or decisions involving assessment and judgment. I do not see the Panel’s role as involving this type of evaluation afresh. Rather the Panel’s role includes, by way of illustration, assessing whether there has been inappropriate reliance on particular data to the exclusion of other data, assessing whether relevant data has been ignored, assessing whether there has been miscalculations or the misconstruction or misapplication of the Act or relevant regulations. [emphasis added]

I will therefore, in my consideration of the issue at hand, examine whether the ADC conducted a comprehensive and proper assessment of all the facts and legal issues, without taint of error of law or fact, and will assess whether the resulting decision is the correct or preferable one.

(Footnote omitted, emphasis in original)

196    Yara submitted that this exposition of the nature of the review to be conducted by the Review Panel was erroneous. In Yara’s submission, the Review Panel’s adoption of this approach to the review meant that it did not determine the matter in a like manner to the Minister. Rather, it adopted the Commissioner’s decision as a starting premise and proceeded with the review on the basis that the decision was the correct or preferable decision if it was not shown that the Commissioner had not conducted a comprehensive assessment of all the facts and legal issues, or that the decision was tainted by some error of fact or law.

197    This particular passage from the Review Panel Report should not be read in isolation. When read fairly and in context, it is tolerably clear that the Review Panel’s statement that it would “examine whether the ADC conducted a comprehensive and proper assessment of all the facts and legal issues, without taint of error of law or fact, and will assess whether the resulting decision is the correct or preferable one” related specifically to how it would address the arguments that Yara had advanced in respect of ground 2 of its review application. It was not a statement about how it would conduct the review generally. What the Review Panel was saying, in effect, was that, in addressing Yara’s contention that the Commissioner had erred in cumulating its exports from Sweden with the exports from China and Thailand, it would assess whether the Commissioner had correctly assessed the facts and legal issues relating to the question of accumulation and determine whether the Commissioner made the errors of fact and law that formed the basis of the review ground.

198    The balance of the Review Panel’s reasons in relation to ground 2 of Yara’s application indicated that the Review Panel did just that. It gave detailed consideration to the Commissioner’s findings concerning accumulation and Yara’s submissions in support of its contention that the Commissioner’s findings were erroneous. Having done so, the Review Panel rejected Yara’s contentions and determined that ground 2 had not been made out. It found that “it was reasonable for the Commissioner to be satisfied that the facts supported an assessment of the cumulative effects of the exports from the subject countries, with the requirements of s.269TAE(2C) having been met, and as such that it was appropriate to cumulate the effects of the exportations from Sweden, China and Thailand”: ADRPR at [317]. It also concluded that the Commission’s “analysis relating to causation is comprehensive and its conclusion reached is reasonable with regard to the exports from Sweden” and that Yara had not “demonstrated that its exports have not caused injury to the Australian industry”: ADRPR at [319]. Yara had accordingly “not demonstrated that the decision was not the correct or preferable one with regard to the exportation of the Goods to Australia from Sweden”: ADRPR at [320].

199    The second passage in the Review Panel Report which was said by Yara to support its contention that the Review Panel adopted the wrong standard of review related to grounds 4 and 5 of Yara’s review grounds before the Review Panel. Grounds 4 and 5 were, in substance, that the injury to the Australian industry caused by the exports was not material and not greater than that likely to occur in the normal ebb and flow of business. Yara’s submissions in support of those two grounds in effect challenged the Commission’s methodology in calculating the injury caused by the exports and its findings relating to the extent and materiality of the injury.

200    The Review Panel’s reasoning in relation to these review grounds included the following (ADRPR at [440]):

Since the basis of determining “materiality” of injury is somewhat subjective and involves the exercise of discretion, it is relevant for me to again refer to the role and powers of the Review Panel, as articulated in ADRP Report No. 24, which does not involve a fresh evaluation, but rather includes, “assessing whether there has been inappropriate reliance on particular data to the exclusion of other data, assessing whether relevant data has been ignored, assessing whether there has been miscalculations or the misconstruction or misapplication of the Act or relevant regulations.” I will therefore, in my consideration of the issue at hand, examine whether the ADC conducted a comprehensive and proper assessment of all the facts and legal issues, and will further assess whether the resulting decision is reasonable in the circumstances. I will not conduct a de novo review of the evidence and analysis, and will only recommend that a different approach and decision be adopted where I am persuaded that such a different approach and decision is the correct or preferable one.

(Footnote omitted)

201    Yara again submitted that this passage from the Review Panel’s reasoning in respect of review grounds 4 and 5 revealed that the Review Panel had adopted a “wrong standard of review”. In Yara’s submission, the Review Panel started with the premise that, provided that no error could be found in the Commission’s approach and the Review Panel considered that approach to be reasonable, the resulting decision was the correct or preferable one.

202    It is again important not to read this passage from the Review Panel Report in isolation. Read fairly and in context, what the Review Panel was saying was that, in addressing Yara’s contention that the Commissioner had erred in finding that the injury caused by the exports was material and greater than that likely to occur in the normal ebb and flow of business, it would assess whether the Commissioner had correctly assessed the facts and legal issues relating to those questions and determine whether the Commissioner had erred in fact or law as contended by Yara in relation to grounds 4 and 5 of its review grounds. It would, in other words, consider and determine whether those review grounds were meritorious.

203    A fair reading of the balance of the Review Panel’s reasons again reveals that that was what the Review Panel did. Ultimately, it found that grounds 4 and 5 were unmeritorious. Having considered the relevant information, the Commissioner’s findings and reasons and Yara’s submissions in relation to grounds 4 and 5, the Review Panel concluded that the Commissioner’s approach to the issue of the materiality of the injury was not “unreasonable or inconsistent with Australian law”: ADRPR at [446]. It also found that the Commission had not inappropriately relied on “particular data to the exclusion of other data”, or miscalculated the data relevant to materiality, or misconstrued or misapplied the relevant provisions of the Customs Act: ADRPR at [447]. Rather, the Review Panel considered that the Commission had “conducted a comprehensive and proper assessment of all the facts and legal issues, and that the resulting conclusion of materiality is reasonable in light of the particular circumstances”: ADRPR at [447]. It accordingly concluded, in relation to grounds 4 and 5, that Yara had not demonstrated that the Commission’s finding that the injury caused by dumping was material and greater than that likely to occur in the normal ebb and flow of business was not the correct or preferable decision: ADRPR at [455].

204    Yara identified a number of other parts of the Review Panel Report which it contended contained similar reasoning: ADRPR at [48], [97], [112], [123]-[124], [136]-[137], [198], [202], [285], [288]-[289], [290]-[291], [293], [295], [319], [334], [423]-[424], [436], [446]-[447], [454], [456]. It is unnecessary to specifically address each of those passages, particularly as they were not specifically addressed in Yara’s submissions.

Conclusion – did the Review Panel adopt the wrong standard of review?

205    The short answer to this question is “no”. Yara’s contention that the Review Panel adopted a wrong standard of review and did not, as required by s 269ZZ(1) of the Customs Act, determine the matters it was required to determine in “like manner as if it were the Minister” and “having regard to the consideration to which the Minister would be required to have regard if the Minister were determining the matter” cannot be accepted. While parts of the Review Panel’s reasons may be expressed in somewhat unfortunate or questionable terms, the reasons of an administrative decision-maker like the Review Panel are “not to be construed minutely and finely with an eye keenly attuned to the perception of error” and a court reviewing such a decision should not be “concerned with looseness in the language … nor with unhappy phrasing”: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 322 at 287 (Neaves, French and Cooper JJ), cited with approval in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

206    The Review Panel’s reasons, read fairly and as a whole, reveal that the Review Panel conducted the review in accordance with the relevant provisions in pt XVB div 9 of the Customs Act. It may be accepted that parts of the Review Panel’s reasons focus on the Commissioner’s findings and reasons, as well as the approach that the Commission had taken to determining some of the issues it was required to determine. There is, however, nothing inherently wrong in the Review Panel focussing on those matters. Indeed, the Review Panel was effectively required to do so by s 269ZZG(5) of the Customs Act.

207    As discussed earlier, the Review Panel was required, by s 269ZZG(5), to conduct the review in relation to Yara’s reviewable grounds. Yara’s reviewable grounds challenged the Commissioner’s findings and reasons and the approach the Commission had taken in determining a number of the issues it was required to decide. The Review Panel was required to determine whether Yara’s criticisms and complaints concerning the Commissioner’s decision were meritorious and, more significantly, whether they established that the decision under review, which was based on the Commissioner’s decision and findings, was the correct or preferable decision. It is, in those circumstances, hardly surprising that the Review Panel’s reasons focussed to a large extent on whether the Commission correctly approached the issues it was required to determine and whether the Commissioner’s findings were reasonably open on the basis of the relevant information.

208    The Review Panel’s repeated references in its reasons to the methodology or approach taken by the Commission being “reasonable” must be read in the context of Yara’s review grounds. So too must the Review Panel’s references to specific findings or conclusions reached by the Commissioner being “reasonable”. In saying that the methodologies adopted by the Commission were reasonable, or that certain findings the Commissioner made were reasonable, the Review Panel was, in effect, rejecting Yara’s contentions to the contrary and finding that the Commission’s methodology was not erroneous, or that the Commissioner’s findings were reasonably open on the basis of the relevant information before it. That was not to adopt a wrong standard of review, as Yara contended. Rather, it was to do what was required, in terms of the conduct of the review, by s 269ZZG(5) of the Customs Act.

209    It may be accepted that s 269ZZ(1) of the Customs Act required the Review Panel, in conducting a review, to determine any matter ordinarily required to be determined by the Minister in like manner, as if it were the Minister, and having regard to the consideration to which the Minister would be required to have regard if the Minister were determining the matter. Subsection 269ZZ(1) cannot, however, be read in isolation. It must be read along with the other provisions of pt XVB div 9, including s 269ZZG(5). For the reasons given earlier, the review that the Review Panel is required to conduct is not a full or de novo merits review of the Minister’s decision. Rather, the review is necessarily one which is responsive to those grounds of review which the Review Panel is satisfied are reasonable grounds for the Minister’s decision not being the correct or preferable decision. While the Review Panel must ultimately determine whether the Minister’s decision was the correct or preferable decision, it is effectively required to approach that question by determining whether any of the reviewable grounds are meritorious and provide a proper basis for concluding that the Minister’s decision was not the correct or preferable decision.

210    When the Review Panel’s reasons are read fairly and as a whole, it is readily apparent that it found that Yara’s review grounds were unmeritorious and did not provide a basis for finding that the Commissioner’s decision, upon which the Minister’s decision was based, was not the correct or preferable decision. It found that the methodologies adopted by the Commission to determine certain matters that it was required to determine were not erroneous or unreasonable, as contended by Yara in its review grounds. The Review Panel also found that specific findings or determinations made by the Commissioner in relation to certain matters were not erroneous, or unsupported by the relevant information, as contended by Yara in its review grounds. Having determined that Yara’s review grounds did not provide a basis for finding that the Minister’s decision was not the correct or preferable decision, the Review Panel concluded that the decision was the correct or preferable decision.

211    It follows that the Review Panel conducted the review in accordance with the provisions in pt XVB div 9 of the Customs Act. It did not, as Yara contended, apply an incorrect standard of review. Yara’s claim that the Review Panel failed to observe procedures that it was required by law to observe, or failed to carry out its statutory functions, must accordingly be dismissed.

212    It should be noted that the reasons for rejecting this ground of Yara’s judicial review challenge to the Minister’s decision should not necessarily be read as an endorsement of the observations made by the former Senior Member of the Review Panel, which was referred to in paragraphs 283 and 440 of the Review Panel Report, about the nature of the review required to be conducted by the Review Panel. For the reasons given earlier, it is correct to say that the review does not necessarily involve a “full reinvestigation” or a re-evaluation “afresh” of all findings made by the Commissioner.

213    It is not necessarily correct to say, however, that the Review Panel’s “role” simply involves, in all cases, “assessing whether there has been inappropriate reliance on particular data to the exclusion of other data, assessing whether relevant data has been ignored, assessing whether there has been miscalculations or the misconstruction or misapplication of the Act or relevant regulations”: ADRPR at [283], quoting ADRP Report No. 24 at [14]. The precise nature and scope of the review will depend, in any given case, on the nature and scope of the grounds which have been found by the Review Panel to be reviewable grounds. The review must be conducted in relation to those grounds: s 269ZZG(5)(c) of the Customs Act. The Review Panel would be wise to focus on the reviewable grounds in the case at hand, rather than summaries or illustrations of the nature of reviews in previous cases.

CONCLUSION AND DISPOSITION

214    Yara failed to make out any of its grounds of review in respect of the Minister’s decision, based as it was on the findings and recommendation of the Review Panel. Yara’s application must accordingly be dismissed with costs.

Associate:

Dated:    21 July 2022