Federal Court of Australia
Infrabuild NSW Pty Ltd v Anti-Dumping Review Panel [2023] FCA 1229
ORDERS
INFRABUILD NSW PTY. LTD. (ACN 003 312 892) Applicant | ||
AND: | Respondent | |
DATE OF ORDER: | 17 October 2023 |
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The applicant is to pay the respondent’s costs, as taxed if not agreed.
3. The reasons of the Court be embargoed for 48 hours and access to them granted only to the parties and their representatives.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
HESPE J:
1 This is an application for review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) of a decision by the Anti-Dumping Review Panel, affirming a decision of the Anti-Dumping Commissioner under s 269TDA(13) of the Customs Act 1901 (Cth) to terminate an investigation into alleged dumping. The applicant seeks an order that the decision of the Review Panel be set aside.
RELEVANt STAtUTORY CONTEXt
2 Anti-dumping measures are provided for in Part XVB of the Customs Act. The statutory scheme has been described as “lengthy, convoluted and highly prescriptive”: Yara AB v Minister for Industry, Science and Technology [2022] FCA 847 at [8] (Wigney J).
3 Section 269SM(1) and (2) provide:
(1) This Part 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. Those measures might consist of the publication of a dumping duty notice or a countervailing duty notice or the acceptance of an undertaking on conditions that make it unnecessary to publish such a notice.
(2) If a notice is published, that notice 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.
4 Dumping duty is imposed by s 8 of the Customs Tariff (Anti-Dumping) Act 1975 (Cth) on goods the subject of a notice under s 269TG(1) or (2) of the Customs Act and in relation to which the amount of the “export price” of the goods is less than the amount of the “normal value”. The difference between the normal value and export price of goods is referred to as the “dumping margin”: Customs Act s 269TACB(5)(b).
5 Pursuant to s 269TG(1), the Minister may by public notice declare that s 8 of the Anti-Dumping Act applies where the Minister is satisfied of certain matters. Section 269TG(1) relevantly provides:
(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;
…the Minister may, by public notice, declare that section 8 of [the Anti-Dumping] Act applies:
(c) to the goods in respect of which the Minister is so satisfied;
6 Section 269TAE sets out matters to which the Minister may have regard in determining whether material injury to an Australian industry is being caused or is threatened because of any circumstances in relation to the export of goods to Australia from a country of export. Relevantly, these matters include:
(1) the size of the dumping margin;
(2) 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;
(3) the effect that the exportation of goods of that kind to Australia from the country of export at dumped prices 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
(4) any effect that the exportation of goods of that kind to Australia from the country of export at dumped prices has had or is likely to have on the “relevant economic factors” in relation to the Australian industry. The relevant economic factors are set out in s 269TAE(3).
7 Section 269TAE(2A) relevantly requires the Minister to consider whether any injury is being caused by a factor other than the exportation of the goods. Any such injury must not be attributed to the exportation of those goods. Examples of such factors that are set out in s 269TAE(2A) are:
(a) the volume and prices of imported like goods that are not dumped;
(b) the volume and prices of importations of like goods that are not subsidised;
(c) contractions in demand or changes in patterns of consumption;
(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.
8 Division 1A of Part XVB of the Customs Act provides for the establishment of the Anti-Dumping Commission (s 269SMB) and the Commissioner (s 269SMF).
9 Section 269TB(1) provides for the making of an application with the Commissioner for a request for the publication of a dumping duty notice by the Minister and is in the following terms:
(1) Where:
(a) a consignment of goods:
(i) has been imported into Australia;
(ii) is likely to be imported into Australia; or
(iii) may be imported into Australia, being like goods to goods to which subparagraph (i) or (ii) applies;
(b) there is, or may be established, an Australian industry producing like goods; and
(c) a person believes that there are, or may be, reasonable grounds for the publication of a dumping duty notice or a countervailing duty notice in respect of the goods in the consignment;
that person may, by application in writing lodged with the Commissioner, request that the Minister publish that notice in respect of the goods in the consignment.
10 After receiving an application for a request for the publication of a dumping duty notice, s 269TC(1) requires the Commissioner to examine the application and reject it if the Commissioner is not satisfied that:
(a) the application complies with subsection 269TB(4) [which sets out form and lodgement requirements]; or
(b) there is, or is likely to be established, an Australian industry in respect of like goods; or
(c) there appear to be reasonable grounds:
(i) for the publication of a dumping duty notice in respect of the goods the subject of the application; or
(ii) for the publication of such a notice upon the importation into Australia of such goods.
11 If the Commissioner decides not to reject an application, the Commissioner must give public notice of the decision. Section 269TC(4) sets out the matters which must be addressed in that notice. Those matters relevantly include:
(a) setting out particulars of goods the subject of the application; and
(b) setting out the identity of the applicant; and
(ba) setting out the countries of export known to be involved; and
…
(bc) setting a date, which should be the date or estimated date of publication of the notice, as the date of initiation of the investigation; and
(bd) indicating the basis on which dumping...is alleged to have occurred; and
(be) summarising the factors on which the allegation of injury or hindrance to the establishment of an industry is based; and
(bf) indicating that a report will be made to the Minister:
(i) within 155 days after the date of initiation of the investigation; or
(ii) within such longer period as the Minister allows under section 269ZHI;
on the basis of the examination of exportations to Australia of goods the subject of the application during a period specified in the notice as the investigation period in relation to the application…
12 Once specified in the notice, the Commissioner cannot vary the length of the investigation period: s 269TC(5A).
13 The fact that an investigation period is specified to start at a particular time does not imply that the Minister may not examine periods before that time for the purpose of determining whether material injury has been caused to an Australian industry: s 269T(2AD). For convenience, the period examined by the Commissioner for the purpose of determining whether material injury has been caused to the applicant is referred to as the injury analysis period.
14 Section 269TDA provides for the circumstances in which an investigation must be terminated. The circumstances include:
(a) Where the Commissioner is satisfied that the dumping margin is negligible (s 269TDA(1));
(b) Where the Commissioner is satisfied that the total volume of goods that have been exported to Australia and that have been dumped is negligible (s 269TDA(3));
(c) Most relevantly to the present case, where:
in an investigation, for the purposes of the application, of goods the subject of the application that have been, or may be, exported to Australia from a particular country of export, the Commissioner is satisfied that the injury, if any, to an Australian industry or an industry in a third country, or the hindrance, if any, to the establishment of an Australian industry, that has been, or may be, caused by that export is negligible.
(s 269TDA(13))
15 If the Commissioner terminates an investigation under (relevantly) s 269TDA(13), the person who made the application for the dumping duty notice can seek a review of that decision by the Review Panel: ss 269ZZN and 269ZZO (item 3).
16 An application for review by the Review Panel must satisfy the requirements provided for in s 269ZZQ. Relevantly, an application must contain a statement setting out the grounds on which the applicant believes the reviewable decision is not the correct or preferable decision: s 269ZZQ(1A)(a).
17 The Review Panel may reject an application for review if the Review Panel is not satisfied that the applicant has set out reasonable grounds for the reviewable decision not being the correct or preferable decision: s 269ZZQA(2).
18 If the Review Panel is satisfied that one or more of the applicant’s grounds for the reviewable decision not being the correct or preferable decision are reasonable grounds, the Review Panel must conduct the review in relation to those grounds and no other grounds: s 269ZZQA(5).
19 Sections 269ZZRA and 269ZZRB enable the Review Panel to obtain further information after receiving an application for review. Those sections provide:
269ZZRA Review Panel may hold conferences
(1) The Review Panel may, at any time after receiving an application for a review, hold a conference of such persons or bodies as it considers appropriate for the purpose of obtaining further information in relation to the application or review.
(2) In making a decision on the review, the Review Panel may also have regard to:
(a) that further information to the extent that it relates to the information that was before the Commissioner when the Commissioner made the reviewable decision; and
(b) any conclusions reached at the conference based on the information that was before the Commissioner when the Commissioner made the reviewable decision.
(3) If the Review Panel decides to hold a conference at any time after receiving an application for a review and before beginning to conduct the review:
(a) the Review Panel must invite the applicant to attend the conference; and
(b) if the applicant fails to attend the conference and the Review Panel is not satisfied that the applicant has a reasonable excuse for the failure—the Review Panel may reject the application.
269ZZRB Review Panel may seek further information from the Commissioner
(1) In reviewing a reviewable decision under this Subdivision, the Review Panel may seek further information from the Commissioner in relation to information that was before the Commissioner when the Commissioner made the reviewable decision.
(2) In making a decision on the review, the Review Panel may also have regard to that further information.
20 Section 269ZZX requires the Review Panel to maintain a public record of certain matters. That section provides:
269ZZX Public record maintained by Review Panel
(1) The Review Panel must, in relation to each application for a review:
(a) maintain a public record containing:
(i) a copy of the application; and
(ii) if the Review Panel seeks further information from the applicant—any such information given to the Review Panel by the applicant; and
(iii) if the application is an application for a review under Subdivision B—any submissions received under section 269ZZJ within the period of 30 days referred to in that section; and
(iv) a summary of further information obtained at a conference mentioned in section 269ZZHA or 269ZZRA; and
(b) at the request of an interested party in respect of the reviewable decision concerned, make that record available to that party for inspection.
(2) The public record must not contain any information in respect of which a summary is given to the Review Panel under subsection 269ZZY(1).
This record must be made available to an interested party that requests it: s 269ZZX(1)(b).
21 If an application for the review of a termination decision is not rejected, the Review Panel must make a decision on the application by affirming or revoking the reviewable decision: s 269ZZT(1). Subject to ss 269ZZRA(2) and 269ZZRB(2), in making its decision, the Review Panel must have regard only to information that was before the Commissioner when the Commissioner made the reviewable decision: s 269ZZT(4).
22 The Review Panel’s decision on review “has effect as if it were a decision made by the Commissioner”: s 269ZZV(a).
Factual COntext
23 The applicant is the only Australian manufacturer of merchant bar (the goods). Merchant bar is a form of steel bar that is used in construction (including commercial and residential construction and mining and resource construction) and in engineering fabrication and transport. It is used in the manufacture of a variety of products including racking, conveyors, trailers, earthing rods and gate hinges.
24 By an application lodged with the Commissioner on 19 April 2021, the applicant sought the publication of a dumping duty notice in respect of the goods exported to Australia from Taiwan. The applicant claimed that the Australian industry (of which the applicant is a member, if not the sole member) suffered material injury caused by the goods that have been or will be imported into Australia from Taiwan at dumped prices.
25 On 31 May 2021 the Commissioner initiated an investigation into the alleged dumping of the goods exported to Australia from Taiwan. The Commissioner adopted an investigation period of 1 April 2020 to 31 March 2021 and nominated an injury analysis period from 1 April 2017.
26 In Termination Report No 584 dated 6 September 2022, the Commissioner concluded that:
(1) Exporters from Taiwan exported the goods to Australia at dumped prices during the investigation period.
(2) The injury, if any, to the Australian industry that has been or may be caused by dumped exports of the goods to Australia from Taiwan was negligible.
(3) Accordingly, the Commissioner terminated the investigation under s 269TDA(13) of the Customs Act (Termination Decision).
27 By an application dated 6 October 2022, the applicant applied to the Review Panel under ss 269ZZN and 269ZZO of the Customs Act for a review of the Termination Decision. The applicant relied upon four grounds of review in support of its application. The grounds were in the following terms:
(1) Review Panel Ground 1: The Commissioner employed flawed methodology in claiming he is satisfied that the injury caused by goods that have been exported to Australia is negligible;
(2) Review Panel Ground 2: The Commissioner failed to engage with the issue of whether the threat of injury posed by the economic performance of the industry in quarters 3 and 4 of the investigation period is negligible;
(3) Review Panel Ground 3: There is insufficient evidence to support the Commissioner’s claimed satisfaction that the injury, if any, caused by goods that have been exported to Australia is negligible; and
(4) Review Panel Ground 4: There is no evidence to support the Commissioner’s claimed satisfaction that the injury, if any, that may be caused by goods that may be exported to Australia is negligible.
28 The applicant annexed an appendix to the application form elaborating on the grounds.
29 The Review Panel conducted a review of the Commissioner’s decision and rejected each of the grounds, affirming the decision of the Commissioner (Review Panel Decision).
30 The applicant seeks review of the Review Panel Decision.
Applicant’s Grounds of judicial review
31 Prior to the conclusion of the hearing, the applicant was granted leave to file a further amended originating application, having regard to its oral submissions. By that further amended originating application, the applicant relies upon the following (amended) grounds for judicial review of the Review Panel Decision:
(1) Judicial Review Ground 1: The making of the Review Panel Decision was an improper exercise by the Review Panel of the power conferred by the Customs Act.
(2) Judicial Review Ground 2: A breach of the rules of natural justice occurred in connection with the making of the Review Panel Decision.
(3) Judicial Review Ground 3: The Review Panel erred in law in making its decision because it failed to perform its statutory task and did not follow the procedure that it was required by law to observe in making the Review Panel Decision.
32 As discussed below, particulars were provided to each of those grounds.
CONSIDERATION
Judicial Review Ground 1
33 By its particulars, the applicant contends that the Review Panel Decision involved an improper exercise of power on five bases.
Judicial Review Ground 1A — approval of use of coincidence analysis
34 The first basis was that the Review Panel improperly exercised power by “approv[ing] the application by the Commissioner of a coincidence analysis as the primary basis for concluding that the dumping of the Merchant Bar from Taiwan did not cause material injury to the Applicant.”
35 In approving the application of the coincidence analysis, the Review Panel was said to have improperly exercised its power for two reasons:
(a) the Review Panel “failed to give any, or any sufficient, consideration to the evidence that there was a time lag between the dumping margin assessment of the imported Merchant Bar and the assessment of material injury to the Applicant”. It was contended that in those circumstances, a coincidence analysis was not an appropriate methodology for determining whether there was a causal link between the dumping and the observable material injury.
(b) the Review Panel purported to “exercise [its] discretion in accordance with the policy set out in the Anti-dumping Commission’s ‘Dumping and Subsidy Manual’ and World Trade Organisation jurisprudence, when relying on a coincidence analysis to determine whether the dumping of imported Merchant Bar caused material injury to the Applicant, without considering the merits of the case”.
First reason
36 Section 5(1)(e) of the ADJR Act provides for a ground of review on the basis that the “making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.” The reference to an improper exercise of power relevantly includes:
(1) Failing to take a relevant consideration into account in the exercise of a power (s 5(2)(b)); and
(2) An exercise of power that is so unreasonable that no reasonable person could have so exercised the power (s 5(2)(g)).
37 A relevant consideration in the context of judicial review is limited to a consideration which the decision maker is bound by the statute (whether expressly or impliedly) to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39–40 (Mason J); Minister v Huynh [2004] FCAFC 256; (2004) 139 FCR 505 at [71] (Kiefel and Bennett JJ). There is nothing in the Customs Act which expressly or impliedly requires the Commissioner or the Review Panel to apply a coincidence analysis or to consider applying such an analysis. The question of causation is a question of fact for the Commissioner (and upon review, the Review Panel) to determine.
38 Although expressed in terms of a failure to consider, the essence of the applicant’s first reason for contending that the making of the Review Panel Decision was an improper exercise of power appears to be that the Review Panel’s decision to affirm the Commissioner’s decision was unreasonable in the sense referred to in s 5(2)(g) of the ADJR Act. The contention appeared to be that the decision to affirm was unreasonable because the Commissioner had not acted reasonably in being satisfied that the injury, if any, to the applicant caused by the export of dumped goods is negligible. The contention appeared to be that the Commissioner had reached his conclusion by unreasonably relying upon a coincidence analysis to determine causation.
39 The contentions are based on an apparent misunderstanding of the reasons of the Commissioner and the Review Panel.
40 In making his Termination Decision, the Commissioner was satisfied that the injury if any, to the Australian industry that has been, or may be caused by dumped exports of the goods to Australia from Taiwan was negligible. The Commissioner’s report records the following:
The Act does not prescribe any particular causation methodology. Rather, causation involves a holistic evaluation of all available evidence.
There are a variety of analytical tools that can assist the commission to evaluate causation depending on the circumstances of a given case. The commission assesses available evidence in totality and does not rely solely on any individual economic indicia or subset of data-points to inform its conclusions, as this would be incongruous with the Act. The commission must also exclude any injury caused by factors other than dumping from its causation analysis.
In this case, the commission used what is termed a ‘coincidence analysis’ to assess causation. Where there is a coincidence in timing between declines in the Australian industry’s economic indicators and the volume and price trends of dumped imports, this may be taken to mean there is a causal link. The commission has also had regard to the Ministerial Direction on Material Injury 2012 (Material Injury Direction), which provides (among other things) guidance that injury to an Australian industry must be greater than that likely to occur in the normal ebb and flow of business.
The Commissioner is satisfied for this case that there is a coincidence between the dumped exports of the goods from Taiwan and a decline in certain economic factors of the Australian industry in the form of lost market share, loss of profits and reduced profitability in the latter half of the investigation period. However, the Commissioner finds that any such coincidence is partial and inconsistent, noting the commission’s observations that the Australian industry also increased its volumes, prices and profits during the first and second quarters of the investigation period – and overall during the investigation period – when dumped imports were present.
Under these circumstances, and noting the degree of fluctuation in the Australian merchant bar market, the commission considers it appropriate to assess movements in the Australian industry’s economic indicators during the investigation period in light of the broader market dynamics across the longer injury analysis period. This assessment assists the commission in determining whether trends in the investigation period are indicative of causation and material injury.
(footnotes omitted.)
41 In its elaboration of Review Panel Ground 1, the applicant stated:
The Commissioner claimed to employ ‘coincidence analysis’ in support of his reason why he is satisfied that injury caused by goods that have been exported to Australia is negligible.
Identification of correlations between import data and the economic performance of a local industry is a necessary component of an injury analysis but is not sufficient in itself to support a conclusion by a decision maker that causation is present. The very term applied to the methodology adopted by the Commission clearly envisages that some correlations may be merely coincidental. A cogent and objective analysis of causation must eschew cherry picking of coincidences and must identify and exclude unconnected factors. The Commissioner, by simply assuming that coincidence equals causation, fails to identify probative evidence sufficient to support a reasonable claim of satisfaction that only negligible injury has been or may be caused by dumped exports.
42 In its consideration of Review Panel Ground 1, the Review Panel concluded that the Commissioner formed his view that the dumping of the imported goods had not caused material injury by assessing the totality of the information before him and had not relied upon a coincidence analysis to form his conclusion. The Review Panel acknowledged that the Commissioner had concluded that the coincidence between the dumped exports and decline in the applicant’s economic performance observed over the investigation period was “partial and inconsistent”. As a result, the Commissioner went on to consider information and data relating to the performance of the market for the goods over the injury analysis period in order to assess whether the movements in the applicant’s economic performance observed during the investigation period were consistent with historic trends. In other words, having found that the coincidence analysis was inconclusive, the Commissioner undertook a broader analysis of the historical performance of the market for the goods.
43 The Review Panel at [52] of its reasons stated:
The application of the coincidence analysis was only the first stage or component of the Commissioner’s causation analysis. The report details the Commissioner’s consideration of information additional to that addressed in the course of the coincidence analysis, namely information relating to the operation of the market for the goods over the injury analysis period. This additional information was considered to ascertain if it provided a compelling explanation in support, or otherwise, of a causation finding given the partial and inconsistent coincidence observed over the investigation period. The consideration of such additional information formed part of a second component of the overall causation analysis. This additional consideration reflected the Commissioner’s adherence to obligations imposed by statute, the Manual and by WTO jurisprudence.
44 At [56]–[58] of its reasons, the Review Panel went on:
[56] The Commissioner had collected sales and profit data from the Applicant as from 1 April 2017. This data suggested that the Applicant had experienced varying levels of sales and profitability. The Applicant acknowledged that such variations were due to factors which appear to be unrelated to the Taiwanese exports. The Commissioner considered that such variations reflected conditions of competition within the market. An assessment with which I agree.
[57] The Commissioner observed that the decline in the Applicant’s profits and profitability observed during the third and forward fourth quarters of the investigation period “shows the same cyclical trends as observed throughout the entire injury analysis period”. With regard to variations in sales volume in the investigation period, the Commissioner similarly observed that such a variation was “within the broader cyclical trends exhibited by merchant bar over the injury analysis period”. The similarities between such trends in the injury analysis period and the investigation period would not have therefore provided an acceptable basis for a causation finding. In the absence of any positive evidence there could be no causation finding necessitating the termination of the investigation on the basis of negligible injury.
[58] For the reasons stated above, I reject this Ground of review as I am in agreement with the Commissioner’s assessment with respect to causation, or the lack thereof…
(footnotes omitted.)
45 The applicant’s Judicial Review Ground 1A is premised on an application by the Commissioner of a coincidence analysis as the primary basis for concluding that the dumping of the goods from Taiwan did not cause material injury to the applicant. That premise is not supported by the reasons given by the Commissioner.
46 Furthermore, the Court does not accept the proposition set out at [35(a)] above. As discussed below at [71], both the Review Panel and the Commissioner acknowledged and took account of the time lag between the date of order and the date of importation in a reasoned way in forming their views.
Second reason
47 The essence of the applicant’s second reason for contending that the making of the Review Panel’s decision was an improper exercise of power pursuant to s 5(1)(e) of the ADJR Act appears to be that the Review Panel exercised a discretionary power in accordance with a rule or policy without regard to the merits of the particular case (s 5(2)(f) of the ADJR Act). The contention appears to be that the Review Panel approved the use of a coincidence analysis because it inflexibly applied a policy set out in the manual published by the Commission and by inflexibly applying jurisprudence from the World Trade Organization.
48 Counsel for the applicant appeared to suggest that this submission was based, at least in part, on the following statement from the Review Panel Reasons at [52]:
…This additional consideration [being the consideration of the injury analysis period as part of the causation analysis] reflected the Commissioner’s adherence to obligations imposed by statute, the Manual and by WTO jurisprudence.
(emphasis added.)
49 A review of the Review Panel Reasons does not disclose that the Review Panel approved the application by the Commissioner of a coincidence analysis as the primary basis for the Commissioner’s conclusion as to causation. Rather, as outlined at [43] above, from the Review Panel Reasons it is apparent that the Review Panel approved the Commissioner’s holistic assessment of the data and information before him. The Review Panel was thus satisfied that the Commissioner had had regard to the entirety of the circumstances.
50 The Review Panel did not inflexibly apply a policy without regard to the merits of the case.
51 The reference to ‘adherence’ must be considered in the context of the Review Panel Reasons. The Review Panel, like the Commissioner, formed its view on lack of causation by undertaking an assessment of the totality of the data and information before it. The Court does not accept the proposition set out at [35(b)] above.
Judicial Review Ground 1B — ordinary business cycle
52 The applicant contends that the Review Panel Decision involved an improper exercise of power in concluding that the material injury suffered by the applicant in the third and fourth quarters of the investigation period was part of “the ‘ordinary business cycle’ and was attributable to the ‘cyclical nature of the market’”. In reaching this conclusion, the applicant contends that the Review Panel:
(a) misconstrued ss 269T(2AD) and 269T(2AE) of the Customs Act; and
(b) failed to consider evidence that the injury analysis period was not representative of the ordinary business cycle.
Context
53 At [20] of the Review Panel Reasons, the Review Panel summarised the Commissioner’s analysis concerning the issue of whether the dumping of goods caused injury to the Australian industry in the following terms:
In undertaking the causation analysis, the Commissioner was not satisfied that the Applicant’s financial performance, over the investigation period, was caused by dumping. Rather, the Commissioner found that the volume effects (i.e., the Applicant’s sales volume) were ‘more likely caused by factors arising from the cyclical nature of the market’. Similarly, with regard to the decline in the Applicant’s profits and profitability over the investigation period, the Commissioner observed that such declines were ‘no greater than declines that the Australian industry experienced at other times in the injury analysis period’. Such declines, when viewed ‘within the context of the ordinary business cycle’ were therefore ‘more likely caused by factors arising from the cyclical nature of the market'.
(footnotes omitted.)
54 The Review Panel explained (at [41] of its reasons) the rationale for comparing movements in the economic performance indicators in the investigation period with movements in those indicators over the longer injury analysis period:
…The rationale for this approach was that if similar downward trends were observed during the injury analysis period, when Taiwanese goods were also present in the market, this would not provide a compelling explanation that such imports were the cause of the downward trends in the investigation period. This examination was undertaken ‘to assist the commission in determining whether trends in the investigation period are indicative of causation and material injury’. If such trends in the economic indicators were observed during the injury analysis period they could not be attributed to dumped imports and the repetition or continuation of such trends in the investigation period would suggest that conditions of competition within the market ( i.e. other economic factors) rather than the presence of dumped imports continued to influence those factors.
(footnotes omitted.)
55 The Review Panel agreed with the Commissioner’s assessment with respect to the lack of causation (Review Panel Reasons [58]).
Particular 1B(a) — Misconstruction of the Customs Act
56 The applicant contends that in agreeing with the Commissioner’s assessment that the material injury suffered by the applicant in the third and fourth quarters of the investigation period was part of “the ‘ordinary business cycle’ and was attributable to the ‘cyclical nature of the market’”, the Review Panel misconstrued ss 269T(2AD) and (2AE). Those sections are in the following terms:
(2AD) The fact that an investigation period is specified to start at a particular time does not imply that the Minister may not examine periods before that time for the purpose of determining whether material injury has been caused to an Australian industry or to an industry of a third country.
(2AE) However, subsection (2AD) does not permit any determination under this Part that dumping has occurred by reference to goods exported to Australia before the start of the investigation period.
Note: Section 269TACB requires a determination of whether dumping has occurred by reference to goods exported to Australia during the investigation period.
57 The Review Panel made the following observations in relation to ss 269(2AD) and (2AE) (Review Panel Reasons [29]–[31]):
[29] Section 269T(2AD) relevantly provides that, for the purpose of determining whether material injury has been caused to an Australian industry, periods prior to the commencement of the investigation period may be examined. Importantly, where the Commissioner examines a period prior to the investigation period, s.269T(2AE) precludes the Commissioner from making a determination that dumping has occurred by reference to imports prior to the commencement of the investigation period. Accordingly, where the Commissioner observed a detrimental or injurious impact on the financial performance of the Australian industry in the period prior to the investigation period, such impact cannot be attributed to, in the present case, exports of the goods from Taiwan.
[30] It is recalled that at the initiation of the investigation the Commissioner nominated an investigation period from 1 April 2020 to 31 March 2021 and an injury analysis period as from 1 April 2017.
[31] The [Commission’s Dumping and Subsidy] Manual clarifies the respective roles of the investigation period, the injury analysis period and the causation analysis. The Manual states
In understanding causation there will be a focus on injury indicators in the dumping investigation period. It is the Commission’s view that section 269T(2AD) allows the examination of material injury indicators before the investigation period, but it cannot support an inference or presumption that material injury identified as occurring before the investigation period can be attributed to dumped imports.
A causal link between dumped imports and material injury may be established only in circumstances where indicators of material injury are identified as being present during an investigation period in which dumped goods are found to have been exported to Australia. There can be no presumption that goods exported to Australia before the commencement of the investigation are dumped goods.
(footnotes omitted.)
58 In its written submissions the applicant submitted that:
(1) The purpose of s 269T(2AD) is to allow the Minister to examine periods prior to the commencement date of an investigation when determining the question of material injury.
(2) Section 269T(2AE) “was inserted to clarify that the dumping of goods during the investigation period cannot be determined by reference to goods exported prior to the commencement of the investigation. i.e. the exportation of goods to Australia during an injury assessment period cannot be relied upon to support a determination that dumping occurred during the investigation period.”
(3) The sections do not found any assumption as to whether goods that are exported during the injury assessment period are exported at either dumped or non-dumped prices, and accordingly no inferences can be drawn regarding the exportation of goods during an injury assessment period.
(4) The Review Panel misconstrued s 269(2AE) and made the erroneous assumption that Taiwanese goods exported during the injury assessment period were, by operation of the section deemed to be not dumped.
59 The applicant’s contentions are not accepted. As a matter of statutory construction and having regard to the statutory scheme as a whole, the Review Panel was correct to conclude (at Review Panel Reasons [29]) that the Commissioner could not attribute injury observed during the period prior to the investigation period to the dumping of goods from Taiwan.
60 The following observations are made in relation to the statutory scheme:
(a) An application with the Commissioner is made for a request for the Minister to publish a dumping duty notice: s 269TB(1).
(b) Where an application is not rejected, the Commissioner prepares a report to the Minister based on an examination of exportations to Australia of goods the subject of the application during the investigation period: s 269TEA.
(c) The power of the Minister to publish a dumping duty notice is predicated upon the Minister being satisfied that, because of dumping, material injury to an Australian industry is being caused or is threatened: s 269TG(1).
(d) Section 269TACB requires a determination of whether dumping has occurred by reference to the export prices of the goods the subject of the application exported to Australia during the investigation period and the corresponding normal values in respect of like goods during that investigation period.
(e) The determination of whether dumping has occurred cannot be determined by reference to goods exported to Australia before the investigation period: s 269T(2AE).
61 Section 269T(2AD) must be read in light of the Minister’s statutory task which is to reach a state of satisfaction. The power of the Minister to examine a period prior to the investigation period is to inform that statutory task. In reaching the state of satisfaction, the Minister may examine periods prior to the investigation period for the purpose of determining whether material injury has been caused to an Australian industry by reason of dumping.
62 Because the determination of whether dumping has occurred is made without reference to goods exported to Australia before the investigation period, the difference between the export prices of goods and “normal prices” of like goods exported to Australia prior to the investigation period is not a matter to be examined for the purposes of determining whether dumping has occurred. The Minister does not have power to investigate dumping margins outside of the investigation period.
63 Thus although the Minister may examine periods prior to the investigation period for the purpose of determining whether material injury has been caused to an Australian industry, that examination cannot be undertaken to support an inference, or on the basis of a presumption, that dumping had occurred during that earlier period. The earlier period may be used to assess whether material injury has been caused by dumping during the investigation period but without an examination of any dumping margin on the exported goods during that earlier period.
64 The Review Panel correctly concluded that there was no statutory presumption that goods exported prior to the investigation period had been dumped. In the absence of such a statutory presumption and given the statutory prohibition on examining whether goods in that prior period had been dumped, there was no statutory basis on which injury observed during the prior period could be attributed to dumping. Judicial Review Ground 1B is not made out on the basis of particular 1B(a).
Particular 1B(b) — failure to consider evidence
65 The applicant contends that the Review Panel failed to consider evidence that the injury assessment period was not representative of the ordinary business cycle in concluding that the material injury suffered by the applicant in the third and fourth quarters of the investigation period was part of “the ‘ordinary business cycle’ and was attributable to the ‘cyclical nature of the market’”.
66 Before this Court, the applicant submitted that the injury assessment period (of some four years) was not representative of the ordinary business cycle because:
(1) The applicant had been placed in voluntary administration for an extended period while undergoing a change in ownership and corporate structure.
(2) The United States had imposed punitive s 232 tariffs on imported steel products, significantly disrupting world steel markets and resulting in price volatility for steel goods.
(3) The global pandemic disrupted shipping and logistics for many months.
67 As explained above at [18], in undertaking its review, the Review Panel is limited to the grounds of review in the application for review. It is not clear how this particular contention relates to any of the grounds of review in the applicant’s application to the Review Panel. The applicant’s Review Panel Grounds did not contend that the Commissioner had failed to have regard to these suggested outlier events.
68 The Review Panel Decision did not involve an improper exercise of power by failing to consider evidence in circumstances where that alleged evidence did not relate to the scope of its review task as defined by the statute. Judicial Review Ground 1B is not made out on the basis of particular 1B(b).
Judicial Review Ground 1C — different lead times
69 The third basis on which the applicant contends that the Review Panel Decision involved an improper exercise of power related to the Review Panel’s conclusion that “the Commissioner’s undercutting analysis took account ‘for different lead times by using the order date as the relevant date for both the [applicant] and [the major Taiwanese exporter]’”. That conclusion was said to have been reached as a result of failing to take into account relevant factors.
Context
70 This ground is closely related to Judicial Review Ground 1A.
71 Based on a review of the Review Panel Reasons, it is apparent that the Review Panel did give consideration to the fact that there was a time lag between the dates which the Commissioner used to make an assessment of the dumping margin of the imported goods (for which the Commissioner used the date of order) and the dates of importation of the goods into Australia. As stated in the Review Panel Reasons:
[73] Although the focus of this Ground appears to be upon future or threatened importations, the arguments advanced in support seek to challenge how the Commissioner ‘managed to align dates of sale for the exporter and domestic industry in order to compare and assess coincidence’. This alignment was undertaken in circumstances where there are acknowledged ‘extended lead times between the date of order (when price is set) and date of invoice/shipment’. As such, I infer that the focus of this Ground is upon the manner in which the Commissioner undertook the coincidence analysis which formed part of the causation analysis.
[74] The Applicant’s concern appears to be that the Commissioner’s coincidence analysis found only a “partial and inconsistent” alignment which may be attributed to a misalignment between the date of sale for the exporter and “the injury trend assessment period” which is the invoice date when the goods are eventually shipped and/or delivered.
…
[76] It is apparent that the Commissioner undertook a timing adjustment of the kind for which the Applicant now argues. Accordingly, I can find no basis upon which to support this Ground and hereby reject it.
72 At [75] of its reasons, the Review Panel noted that the price effects analysis section of the Commissioner’s report:
…reflects the Commissioner’s acknowledgement that a sale would be lost to the Applicant at the time at which the exporter accepted the importer’s purchase offer notwithstanding that that there may be several months delay in the shipment of the goods to Australia. Accordingly, the Commissioner’s undercutting analysis took account ‘for different lead times by using the order date as the relevant date for both the [applicant] and [the major Taiwanese exporter]’ [emphasis added]. I have reviewed Confidential Attachment 3 to REP 584 which lists the major Taiwanese exporter’s sales to Australia. I have confirmed that the attachment captures: the order date, the order date quarter, the invoice date and whether the order date was within the investigation period.
73 A review of the Commissioner’s report discloses that the “undercutting analysis” undertaken by the Commissioner was in response to the applicant’s claim to him that dumped imports from Taiwan “undercut its domestic selling price” and that “this price undercutting has prevented it from increasing its selling prices”. In response to this submission, the Commissioner concluded that the selling price of goods from the major Taiwanese exporter undercut the Australian industry’s domestic selling price. However, based on an analysis of the Australian industry’s unit profit, the Commissioner also concluded that the dumped imports did “not appear to be causing the Australian industry to suffer price suppression”.
74 The applicant had submitted to the Commissioner that the use of the Taiwanese exporter’s selling price to perform this undercutting analysis was flawed because “[t]he commission has not accounted for timing differences and delays in arrival of the exported goods.” In response to this submission, the Commissioner stated that his “analysis accounts for different lead times by using the order date as the relevant date of sale for both the Australian industry and [the major Taiwanese exporter].” In a footnote to this statement, the Commissioner explained:
The commission understands that the manufacturers and buyers agree to the material terms of trade, including prices, for merchant bar at the point of order. Given this, and the lead time between order and importation, the commission considers the order date is the relevant date of sale for comparing [the applicant’s] prices with competing imports. In undertaking this analysis, the commission has therefore used the verified export prices of the major cooperating exporter from Taiwan…rather than the ABF import database.
75 It is also apparent from the Commissioner’s report that he did have regard to ‘ABF’ (Australian Border Force) import data (recording when goods entered Australia) when considering the volume of goods imported into Australia. In analysing the volume effects of dumped imported goods, the Commissioner concluded that the dumped goods had not caused any decrease in the applicant’s sales volumes because those volumes had increased during the investigation period and any coincidence between the presence of dumped imports and movements in the applicant’s market share was partial and inconsistent.
76 The Review Panel accepted that the Commissioner’s analysis had taken account of different lead times (Review Panel Reasons [75]).
Particular 1C(a)
77 By this particular the applicant contends that the Review Panel failed to consider “relevant factors” when determining that “the Commissioner’s undercutting analysis took account ‘for different lead times by using the order date as the relevant date for both the [applicant] and [the major Taiwanese exporter]’”. Those factors were said to include:
(1) the abnormal delays in the shipments of the goods from Taiwan that increased the time between the importation of the dumped goods and the occurrence of the applicant’s material injury;
(2) the splitting by the exporter of numerous orders across multiple shipments with different dates of export and entry for home consumption in Australia for each shipment; and
(3) the difference between the applicant’s pricing offers for long and short lead times.
78 The essence of the applicant’s complaint about the Commissioner’s “undercutting analysis” (and the Review Panel’s agreement with that analysis) appeared to relate to the Commissioner’s conclusion that he was not satisfied that the dumping of goods resulted in price suppression. Whether undercutting caused price suppression was a question of fact for the Commissioner (and to the extent that it formed part of the Review Panel Grounds, for the Review Panel) to determine. Disagreement with a factual finding is not of itself a basis for judicial review: see Yara at [88]–[89].
79 A failure to take into account a relevant consideration is a ground for judicial review only if the decision maker was bound to take the consideration into account: Peko-Wallsend at 39–40 (Mason J). There is nothing in the statute that requires the three matters identified to be taken into account by either the Commissioner or the Review Panel.
80 Furthermore, the applicant in its written submissions accepted that the Review Panel had correctly concluded that the Commissioner’s undercutting analysis took account of the delays in shipments of dumped goods by using the respective order dates of the exporter and the applicant for that analysis. The gravamen of the applicant’s disagreement with the Commissioner and the Review Panel seemed to be with the coincidence analysis and not the undercutting analysis.
81 The ground of review is not made out on the basis of particular 1C(a), as framed by the applicant in its further amended originating application.
Particular 1C(b)
82 By this particular the applicant contends that:
When determining that “the Commissioner’s undercutting analysis took account ‘for different lead times by using the order date as the relevant date for both the [applicant] and [the major Taiwanese exporter]’”:
…
(b) the Respondent’s approval of, and reliance on, Confidential Attachment 3 was misconceived because he failed to consider the omission from the Attachment of –
i. all exportations of dumped goods during the investigation period for which orders were placed prior to the commencement of the investigation period,
ii. all orders which were placed during the investigation period for goods imported after the investigation period.
83 It is not clear how these contentions relate to a ground of judicial review as opposed to a disagreement with a factual finding relating to the effect of dumped goods on the applicant’s ability to raise prices.
84 To the extent that the contention is that the Review Panel’s agreement with the Commissioner’s findings was unreasonable because the Commissioner had acted unreasonably in relying on Confidential Attachment 3, the contention is not accepted.
85 The Review Panel referred to Confidential Attachment 3 at [75] of its reasons (set out above at [72]) in the context of an examination of the Commissioner’s undercutting analysis. The Review Panel reviewed that attachment for the purpose of confirming “that the attachment captures: the order date, the order date quarter, the invoice date and whether the order date was within the investigation period”. Confidential Attachment 3 thus contained the order dates on which the Commissioner relied for his undercutting analysis, as explained at [72] above.
86 In those circumstances, given the limited purpose for which the Review Panel had regard to Confidential Attachment 3, it is not accepted that the Review Panel’s reliance on that attachment was “misconceived”. There was nothing illogical or irrational in the Review Panel reviewing Confidential Attachment 3 to see what data it contained.
Judicial Review Ground 1D — raw material costs
87 The applicant’s Judicial Review Ground 1D is in the following terms:
1. The making of the Decision was an improper exercise by the Respondent of the power conferred by the Act [because]
…
D. The Respondent affirmed the erroneous finding of the Commissioner that the material injury that was suffered by the Applicant was caused by an increase in material costs which resulted in lower profit margins on the Applicant’s sales. The Respondent should have given consideration to the undercutting of the Applicant’s prices because of the dumping of the Merchant Bar which resulted in price suppression whereby the applicant was constrained from raising its prices to cover the increased costs of raw material and as a consequence suffered material injury.
Context
88 The Review Panel’s conclusions with respect to the injury suffered by the applicant in relation to sales and profitability appear at Review Panel Reasons [54] and [56] in the context of the Review Panel’s consideration of Ground 1 of the applicant’s Review Panel Grounds relating to the Commissioner’s causation assessment:
[54] I note that in undertaking the causation analysis, the Commissioner paid particular attention to the Applicant’s sales volume, unit profitability and overall profits. Given the price sensitivity of the goods, and that they are a commodity product, I agree that the Commissioner’s attention to the Applicant’s sales and profits was appropriate.
…
[56] The Commissioner had collected sales and profit data from the Applicant as from 1 April 2017. This data suggested that the Applicant had experienced varying levels of sales and profitability. The Applicant acknowledged that such variations were due to factors which appear to be unrelated to the Taiwanese exports. The Commissioner considered that such variations reflected conditions of competition within the market. An assessment with which I agree.
89 The Commissioner and the Review Panel accepted that there were quarters within the investigation period when the applicant experienced declines in sales and profitability. As set out at [57] of the Review Panel Reasons, the Review Panel agreed with the Commissioner’s assessment that the decline in the applicant’s profits and profitability observed during the third and fourth quarters of the investigation period “shows the same cyclical trends as observed throughout the entire injury analysis period” and that such similarity in trends “would not have therefore provided an acceptable basis for a causation finding”. The Review Panel affirmed the Commissioner’s conclusion that dumping did not cause material injury.
90 In addressing Ground 1 of the applicant’s application to it, the Review Panel noted at [39] of its reasons:
The Commissioner found that ‘dumping only coincided with a decline in the Applicant’s market share, profits and profitability during the third and fourth quarter of the investigation period’. Therefore, over the 12 month investigation period, when examined on a quarterly basis, the Commissioner only found a coincidence between injury factors and the presence of dumped imports in the last two quarters but none was observed in the first two quarters of that period. Further, the Commissioner identified that the Applicant’s decline in profitability in the final two quarters of the investigation period was caused by increased raw material costs as an ‘other injury factor’ and not by dumped imports. I note that the Applicant does not contest this finding. However, on an annualised basis the Commissioner found ‘that the Australian industry also increased its volumes, prices and profits…overall during the investigation period-when dumped imports were present’. Despite such an increase in sales volumes over the investigation period the Commissioner also noted that the Applicant had experienced a loss of market share during the same period.
(footnotes omitted.)
91 In addressing Ground 2 of the applicant’s application to it, the Review Panel noted at [66] of its reasons:
…the Commissioner found that the Applicant’s decline in profit and profitability during the last two quarters of the investigation period could not be linked to the dumped imports but were the result of an increase in raw material costs, a finding which I note the applicant does not challenge.
92 The Commissioner had found that the applicant’s “profit and profitability declined during the second half of the investigation period”. He found that “the Australian industry’s unit selling price rose during the investigation period and that the Australian industry’s unit selling price and unit CTMS [cost to make and sell]…largely moved in tandem on an annual basis over the injury analysis period”. The Commissioner also noted:
…the slight convergence between selling price and CTMS at two points during investigation period. The commission considers that the movements in profits and profitability discussed in section 6.5 is partly attributed to a rise in raw material costs that occurred during this time. The Australian industry’s selling price increased during the final quarter of the investigation period, but at a rate that was not high enough to fully offset this rise in CTMS.
93 The Commissioner considered but rejected the applicant’s submission that price undercutting from dumped imports from Taiwan prevented it from increasing its selling prices. Based on its analysis of the data, the Commissioner concluded that the lowest point of the Australian industry’s unit profit with respect to the goods coincided with the point at which the margin of price undercutting was also at its lowest. The Commissioner found that dumped imports did not appear to be causing the Australian industry to suffer price suppression. The Commissioner observed (at page 60):
…that the Australian industry was able to achieve growing sales volumes and higher levels of profit and profitability during the first half of the investigation period…when the level of price undercutting was greater. The commission therefore does not accept [the applicant]’s claim that it was unable to increase prices in line with the increase in CTMS and rising import prices due to price suppression.
94 The Commissioner turned to consider factors other than dumping relevant to the Australian market, including the rise in steel scrap prices and concluded that increases in costs of raw materials likely drove part of the Australian industry’s decline in profits and profitability of sales of like goods. In reaching this conclusion, the Commissioner observed:
…the Australian industry’s increase in its unit selling price of like goods in the final quarter of the investigation period partially offset the increase in the Australian industry’s raw materials costs. [The applicant] argued in its application and its submission dated 16 June 2022 that it could not increase prices further to fully offset this increase in raw material costs due to price suppression caused by imports from Taiwan. However, as discussed in section 7.6, the commission has found that the price of imported goods increased such that the level of price undercutting by the major exporter from Taiwan decreased to its lowest observable level in the final quarter of the investigation period.
Accordingly, the commission considers that the Australian industry's decline in profits and profitability during the second half of the investigation period cannot be sufficiently linked to price suppression from dumped goods. Rather, the decline in profits and profitability are likely attributable to factors other than dumping. The commission considers that an increase in raw material costs was a relevant factor in the Australian industry’s decline in economic factors.
95 It is also apparent that the Review Panel affirmed the Commissioner’s conclusion that the decline in the applicant’s profit and profitability during the last two quarters of the investigation period could not be attributed to dumped products because those declines were consistent with the cyclical trends observed over the longer injury analysis period. There was no finding by either the Review Panel or the Commissioner that there was price suppression as a result of dumping.
Ground for Judicial Review
96 The question whether material injury to an Australian industry was caused by the alleged dumping is a question of fact: Yara at [88] (Wigney J), citing N.V. Beaulieu Real v The Minister for Justice and Customs [2002] FCA 467 at [59] (Conti J). For the purposes of s 269TDA(13), it is a question of fact in respect of which the Commissioner (and upon review, the Review Panel) must be satisfied. The role of the Court in reviewing findings of fact in judicial review proceedings is necessarily limited.
97 The ground of judicial review in the applicant’s originating application to this Court does not refer to a failure to consider a submission or argument put by the applicant. It is framed as a failure to consider a purported fact which was not established. There could be no failure to give consideration to “the undercutting of the Applicant’s prices because of the dumping of the Merchant Bar which resulted in price suppression” in circumstances where price suppression was not established. It is apparent from the Commissioner’s analysis (which was accepted by the Review Panel) that the Commissioner did give consideration to price undercutting from dumped goods but rejected that price undercutting as a cause of either price suppression or the applicant’s decline in profits and profitability.
98 In the course of argument in this Court, it became apparent that the applicant’s real contention was that the Review Panel did not consider a submission that was put to it by the applicant. In oral submissions Counsel for the applicant submitted:
It's a very straight-forward argument. The commissioner says, ‘Well, there were increases in raw materials. Why didn’t you raise your prices more? That has caused your decrease in profitability’ The simple answer is the applicant couldn’t because its prices had been undercut. That is price suppression. Now, the panel didn’t address this issue at paragraph [66] because it stated incorrectly that the applicant did not contest the commissioner’s finding in this application for review by the panel. Well, in actual fact it did raise it. The language may have been less than explicit from the point of view of counsel or solicitors. But it was raised specifically in the grounds of review…
99 The Court was taken to Review Panel Ground 2. That ground was that “the Commissioner has failed to engage with the issue of whether the threat of injury posed by the economic performance of the industry in quarters 3 and 4 of the investigation period is negligible”. The drafting of that Review Panel Ground sought to agitate an issue with the way in which the Commissioner dealt with the issue of a threat of injury. A threat of injury looks to assessing injury that is to be suffered in the future: ICI Australia Operations Pty Ltd v Anti-Dumping Authority (1991) 104 ALR 474 at 480 (Gummow J). So much is evident from the terms of s 269TAE(2B) which requires regard only be had to changes in circumstances which would make material injury foreseeable and imminent.
100 In respect of Review Panel Ground 2, the applicant provided the Review Panel with the following elaboration:
In the context of an application for a dumping duty notice under section 269TB, assessment of a threat of injury is to be undertaken by reference to findings of fact prevailing at the end of the investigation period. In the present matter it is the findings relevant to injury in the last two quarters of the investigation period…
Applied here, the Commissioner ignored the most current, verified information available, instead relying on its undercutting analysis, which it observed…decreased during the final quarter of the investigation period. The problem with this approach; ignoring verified information demonstrating a trend, in preference for a flawed extrapolation of export price information; is that the Commissioner has ignored the very injury that the Australian industry complained of, i.e. price suppression.
…
Applied here, the fact that the industry was found to have seriously suppressed its prices in the final two quarters of the investigation period; as evidenced by the decline in unit profit; in order to compete with undercutting imports sold into the market, would naturally lead to a reduced undercutting margin, and simultaneously a lower unit profit. Sadly for industry, it was unable to increase prices both in line with a rise in raw material costs and an increase in selling prices for the dumped imports.
(footnotes omitted, emphasis added.)
101 It was submitted that by the last bolded sentence, the applicant raised for the Review Panel’s reconsideration the Commissioner’s conclusion that dumping had not caused price suppression. Counsel for the applicant submitted:
One might criticise the drafting for stating the premise at the end of the – which should be a conclusion – but the point is [the applicant] discussed price undercutting and price suppression, and then explained at the end that industry was unable to increase prices, both in line with a rise in raw material costs and an increase in selling prices for the dumped goods because of price suppression, and the Panel should have taken that into account, and found that was not a contributor to the injury or the decline in profit and profitability of the applicant.
102 Even if Judicial Review Ground 1D of the applicant’s originating application for judicial review is to be understood as referring to a failure to consider a submission or argument forming part of a review ground, there was no contention or argument put to the Review Panel that the Commissioner erred in its conclusion that there was no price suppression. The elaboration to the Review Panel posited as a fact “that the industry was found to have seriously suppressed its prices in the final two quarters of the investigation period”. No such fact was found. The Review Panel recorded the finding made by the Commissioner, at [66] of the Review Panel Reasons, that the decline in the applicant’s profitability could not be linked to the dumped imports. The Review Panel was not required to reconstruct the applicant’s ground of review and elaboration to distil a contention that was not clearly put to it.
103 Judicial Review Ground 1D essentially takes issue with the Commissioner’s finding that the material injury suffered by the applicant, in the form of lower profit margins on the applicant’s sales, was not caused by price suppression from dumped goods. The merits of that conclusion is not a matter for judicial review. Ground 1D as framed in the further amended originating application is not made out.
Judicial Review Ground 1E
104 Ground 1E in the further amended application is in the following terms:
1. The making of the Decision was an improper exercise by the Respondent of the power conferred by the Act [because]
…
E. When considering whether the material injury suffered by the Applicant in the fourth quarter of the investigation period was caused by the dumping of Merchant Bar from Taiwan the Respondent erroneously accepted the finding by the Commissioner that the decrease in the Applicant’s market share was caused by the stockpiling of Merchant Bar by Australian customers, a conclusion that was wholly unreasonable.
105 The retention of this ground in the further amended application filed after the conclusion of the hearing is curious given that during the hearing Counsel for the applicant stated that the point was not pressed as follows:
…your Honour – your Honour, I should note that there was a point made in the application for review about unreasonableness, and what is particularised there is the reference by the commissioner to stockpiling of goods, and what was seen to be unreasonable was the premise that if local customers are stockpiling goods, it should somehow affect market share, and the answer was that’s a wholly unreasonable thing, because whether markets – whether demand goes up or down, market shares should remain stable, and if one loses market share, one loses it only to the exporter.
Now, that point is not pressed, your Honour, for one reason, and the fault does lie at this end of the bar table. That point was not made out clearly in the termination report.
106 Accordingly this ground of review is not considered further.
Judicial Review Ground 2 — Breach of Rules of Natural Justice
107 By its second ground in its application for judicial review, the applicant contends a breach of the rules of natural justice in connection with the making of the decision of the Review Panel.
Context
108 As set out above at [19]–[21]:
(1) Pursuant to s 269ZZRA of the Customs Act, the Review Panel may hold a conference for the purpose of obtaining further information in relation to the application for review, at any time after receiving an application for review. If the conference is held at any time after receiving the application for review but before beginning to conduct the review, the Review Panel must invite the applicant to attend the conference.
(2) Section 269ZZRA(2) limits the further information to which the Review Panel may have regard to information that:
(a) is provided at a conference held by the Review Panel; and
(b) relates to the information that was before the Commissioner when the Commissioner made his decision.
(3) Pursuant to s 269ZZRB, in undertaking a review, the Review Panel may seek further information from the Commissioner “in relation to information that was before the Commissioner when the Commissioner made [his] reviewable decision”.
The Review Panel cannot otherwise have regard to further information: s 269ZZT(4).
(4) Section 269ZZX requires the Review Panel to maintain a public record containing a summary of the further information obtained at a conference under s 269ZZRA. The record must be made available for inspection by an interested party who requests it.
109 On 26 October 2022, the Review Panel held a conference with representatives of the Commission. Following the conference, on 8 November 2022 the Commission provided the Review Panel with a supplementary written response on certain matters. On 22 November 2022 a conference summary was published on the public record maintained on the Review Panel’s website. At the hearing the applicant did not dispute that it had on that day received notification of the fact of publication. The Review Panel made its decision on 29 November 2022.
110 By its particulars, the applicant contends that the Review Panel “did not invite the [a]pplicant to comment on the Conference Summary and made the Decision before the [a]pplicant had the opportunity, or sufficient opportunity, to make submissions with regard to the material in the Conference Summary.”
111 At the hearing, Counsel for the applicant withdrew the contention that the Review Panel made the decision before the applicant had a sufficient opportunity to make submissions. The applicant maintained the contention that there was a denial of procedural fairness by the Review Panel’s failure to invite the applicant to comment on the conference summary. Counsel for the applicant said:
Ground 2 actually raises two points: the Panel didn't invite the applicant to comment on the conference summary and made the decision before the applicant had the opportunity to make submissions. We do not press the second half of that particular, because it actually involves two points.
Requirements of procedural fairness
112 Procedural fairness requires the applicant be accorded a fair opportunity to be heard before a decision is made. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, at [32] the High Court approved the following statement by the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 590:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard…
113 The requirements of procedural fairness are to be discerned from the statutory scheme: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 614 (Brennan J).
114 The statutory scheme requires the publication of the conference summary. As was observed in Wilson Transformer Company Pty Ltd v Anti-Dumping Review Panel (No 2) [2022] FCAFC 30; (2022) 290 FCR 52 (Wilson v Panel (No 2)) at [24], the explanatory memorandum to the Bill which inserted that requirement in s 269ZZX(1) explained that the insertion of this requirement is “[f]or the purposes of transparency and procedural fairness”.
115 Where the publication of the conference summary occurs prior to a decision being made, it accords the applicant with the opportunity to respond to the summary, particularly in circumstances where the applicant is given immediate notice of the publication of the summary (cf the circumstances in Wilson v Panel (No 2) at [22]). For the information provided by an applicant in response to be taken into account by the Review Panel, it is necessary for there to be a conference with the Review Panel: s 269ZZRA(1) and s 269ZZT. It is implicit in the statutory scheme that an applicant who gives the Review Panel notice of a response to a conference summary or notifies the Review Panel of an intention to respond or otherwise notifies the Review Panel that it seeks to be heard in response would be invited to a conference. However, absent an indication from an applicant that it wishes to provide further information in response, the statutory scheme does not otherwise impose an obligation for the Review Panel to invite the applicant to a conference after a review commences.
116 Once it is accepted that the applicant had an opportunity to give an indication to the Review Panel that it wished to make submissions with regard to the material in the conference summary prior to the Review Panel making its decision, it cannot be said that the applicant was denied procedural fairness. Having notified the applicant of the publication of the conference summary, procedural fairness did not require the Review Panel to issue an invitation to the applicant to attend a conference in the absence of receiving an indication from the applicant that it wished to respond.
117 The applicant was accorded the opportunity to notify the Review Panel that it wished to respond to the summary before a decision was made. The applicant did not do so. Having regard to the statutory scheme, there was no breach of the rules of natural justice. Ground 2 of the further amended originating application is not made out.
Judicial Review Ground 3 — Failure to perform statutory task and follow procedure
118 By the applicant’s further amended originating application, the applicant contended that the Review Panel erred in law in making its decision because:
(a) it failed to perform the statutory task imposed by Division 9 of the Customs Act; and/or
(b) it did not follow the procedure that it was required by law to observe when making its decision.
119 The following particulars were cited in support of the ground:
The [Review Panel] accepted the Application for Review dated 6 October 2022 as having raised ‘reasonable grounds for the reviewable decision not being the correct or preferable decision’ in accordance with the requirements of s269ZZQA(5)(c), and having done so, was obligated by law to consider each of those grounds on their merits. The [Review Panel] failed to give any, or any proper consideration to the issues raised in Ground 4 of the Application for Review which were set out in Appendix B to the Application. Each of the issues explicated by the Applicant under Ground 4 was material to the Commissioner’s decision.
Those issues included:
(i) the Commissioner's failure to explain ‘how it managed to align dates of sale for the exporter and domestic industry in order to compare and assess coincidence’ and the importance of this issue when there are extended lead times between date of order and date of invoice/shipment;
(ii) the significance of the Applicant’s two-fold pricing mechanism for domestic sales and its impact on the Commissioner’s analysis;
(iii) the relationship between the misalignment of dumping and the occurrence of injury and the Commissioner’s conclusion that the causal relationship between dumping and injury was partial and inconsistent;
(iv) the possible exclusion by the Commissioner of export sales from its coincidence analysis;
(v) [t]he Applicant’s contention that a coincidence analysis was not possible because the evidence before the Commissioner was such that it could not compare the date of causation with the date of injury, and its conclusion that a ‘but for’ analysis should be applied to reach the correct or preferable decision.
Context
120 Having regard to the statutory scheme, it may be accepted that once the Review Panel made the decision not to reject the applicant’s application under s 269ZZQA and to commence an investigation, the Review Panel is required to consider each of the grounds that it is satisfied is a reasonable ground for the Commissioner’s decision not being the correct or preferable decision. The Review Panel would not be carrying out its statutory task if it conducted a review that did not consider each of the “reviewable grounds” as defined in s 269ZZQA: see Yara at [207].
121 The applicant contends that the Review Panel failed to give any, or any proper consideration to the issues raised in Ground 4 of its application to the Review Panel. That ground was that there was “no evidence to support the Commissioner’s claimed satisfaction that the injury, if any, that may be caused by goods that may be exported to Australia is negligible.”
122 In Appendix B to the application form lodged with the Review Panel, the applicant’s elaboration of Ground 4 included:
The Commissioner relies significantly upon his observation that:
Where there is a coincidence in timing between the injury factors and the volume and price trends of dumped imports, this may be taken to mean there is a causal link.
The Commissioner then concluded:
The degree of coincidence between the presence of dumped imports during the investigation period and the downward trends in certain indices of the Australian industry’s economic condition during the third and fourth quarters is partial and inconsistent.
The Commissioner reports examining the following evidence in its coincidence analysis:
• Verified volume, price and profit effects of the Australian industry during the injury analysis and investigation periods
• Verified sales data from cooperating exporters and participating importers to determine relevant selling prices and volumes of the goods
However, the Commissioner’s analysis is incomplete as he does not say how it managed to align dates of sale for the exporter and domestic industry in order to compare and assess coincidence. This is important particularly when there is acknowledgement by the exporter that there are extended lead times between date of order (when price is set) and date of invoice/shipment…
(footnotes omitted.)
123 In its elaboration to the Review Panel, the applicant explained that it used “import parity pricing” to price its product. The applicant based its sale price on import offers for the product for delivery in a given month. Its explanation of its pricing included the following:
For example, [the applicant’s] customers ordering on the ‘Long Lead Time’ option are required to place their orders in [one month] for delivery (and invoicing) in [a later month]. The pricing is set at the date of order…based on the import offers received by customers in that month, also for delivery in [the specified later month]. Customers ordering on the ‘Short Lead Time’ option can place an order [for delivery between the earlier month and the specified later month] on short notice…but will have a premium added to their base price (which is also based on the [import parity pricing] price set back in [the earlier month]). The pricing date for all customers is set at the time of order confirmation in the system, whether ordering on a long or short lead time.
124 The applicant also noted in its elaboration that “[l]ong delays in shipping times were experienced during 2020 and 2021 with covid-related port and shipping disruptions causing many problems for exporters and importers.” In the elaboration of its grounds provided to the Review Panel, the applicant summarised its concern as follows:
[the applicant] is concerned that the Commission’s observed…partial and inconsistent…finding in the coincidence analysis may be attributed to the misalignment between date of sale for the exporter and the injury trend assessment period? For some of the export arrivals within the investigation period, the date of sale (when the price was set) may be some months prior to April 2020. Similarly, some of [the major Taiwanese exporter] sales data having a date of sale (order date) within the investigation period would be for merchant bar arriving beyond the end of the investigation period. It is not clear whether the Commission has included or excluded these sales from its coincidence analysis? In the Commission’s price undercutting analysis, it is not clear whether the order date (when the customer price is set) of the [the applicant’s] sales been compared to the date of sale (order date) of the exporter’s export sales?…
…
[The applicant] considers that due to the delays in the investigation period between the date of order (sale date), and the date of delivery/invoicing (revenue recognition), the Commission is not able to align the former with the latter. In other words, the Commission cannot, on the evidence, compare the date of causation (sale date) with the date of injury occurring (revenue recognition). In such circumstances, the Dumping and Subsidy Manual is clear:
Where no coincidence has been found, or a ‘coincidence analysis’ has not been possible, the Commission may accept an alternate analytical method—such as a ‘but for’ analysis—when examining causation. Any alternate method will be required to be evidence based.
[The applicant] submits that the Commissioner’s attempt to examine causation using ‘coincidence analysis’ in the circumstances (delivery delays) prevalent throughout the investigation period; as acknowledged by the exporter; does not support the correct or preferable decision, and a ‘but for’ analysis should be applied when examining causation.
(footnotes omitted.)
125 The Review Panel addressed Review Panel Ground 4 in its decision at [73]–[76] as set out above at [71]–[72]. The Review Panel was satisfied that the Commissioner undertook a timing adjustment of the kind for which the applicant contended. The contentions as expressed to the Review Panel appeared to focus on a “misalignment” between the “dates of sale for the exporter and domestic industry” which was said to infect the Commissioner’s coincidence analysis. As the Review Panel observed, in undertaking its undercutting analysis and its assessment of pricing for the purposes of determining whether dumping had occurred, the Commissioner sought to align the dates by using the order date as the relevant date for both the exporter and the applicant.
126 Based on footnote 48 of the Commissioner’s report, as set out above at [74], the Commissioner’s reference to “order date” is a reference to prices as recorded at the point of order. On the applicant’s information as provided in its elaboration to the Review Panel, the applicant’s pricing date for all customers is set at the time of order confirmation in the system, whether ordering on a long or short lead time.
127 As observed above at [80], the gravamen of the applicant’s disagreement with the Commissioner and the Review Panel seemed to be with the manner in which they assessed coincidence of injury and dumping. The applicant took issue with the Commissioner’s coincidence analysis. The essence of the applicant’s concern appears to relate to the delay between the order date (which was used to determine the pricing for the purposes of considering whether dumping had occurred and the extent of price undercutting) and the arrival of the product into Australia. The “misalignment” contention appears to be that injury is caused when the product enters Australia but the Commissioner assessed dumping by reference to prices at an earlier point in time and, accordingly, where there are significant delays in delivery a coincidence analysis may fail to show a coincidence between injury and dumping.
Addressing the applicant’s contention
128 There are a number of difficulties with the applicant’s contention in support of Judicial Review Ground 3.
129 First, as stated above at [78], causation is a question of fact in respect of which the Review Panel was required to be satisfied. Disagreement with the Review Panel’s finding of fact is not a ground for judicial review per se.
130 Second, the Review Panel’s reasons must be considered as a whole. The Review Panel’s consideration of Review Panel Ground 4 cannot be read in isolation from its consideration of Review Panel Ground 1. As Counsel for the applicant acknowledged in respect of the grounds of review put to the Review Panel:
Ground 1, to a large extent, can be rolled up with ground 4. Ground 1 is really a subset of ground 4 about coincidence analysis.
131 To the extent that the applicant’s misalignment contention to the Review Panel was based on an implied premise of injury being determined on a particular date, that premise was not supported. As the Review Panel recorded in its reasons at [37]–[38]:
…the Commissioner had collected and analysed a range of data pertaining to injury factors over a four year period commencing on 1 April 2017 Such factors included the Applicant’s profit and profitability and the sales volumes and prices of both the Applicant and the importer of the goods exported from Taiwan. This data was analysed on both an annualised and on a quarterly basis over each of the injury analysis and the investigation periods.
…
…the focus of this [causation] analysis was limited to what had been observed during the 12 month investigation period (i.e. 1 April 2020 to 31 March 2021). During this period, profitability and market share were the two main indicia for which a deterioration in the Applicant’s performance had been observed. These two indicia were assessed on a quarterly and on an annualised basis.
132 Thus, injury factors (being market share and unit profit and profitability) were not analysed at a point in time but over a period. The data was assessed on a quarterly and on an annualised basis. The analysis did not necessitate an alignment of dates between a date of order and a date of injury.
133 To the extent that the applicant’s misalignment contention to the Review Panel was premised on injury being caused when the product physically enters Australia, the Review Panel did not accept that premise. Rather, the Review Panel considered at [75] that a sale would be lost to the applicant at the time at which the exporter accepted the importer’s purchase offer notwithstanding that that there may be several months delay in the shipment of the goods to Australia. Given the nature of the goods and the fact that they are pre-ordered by customers (albeit with different lead times) the effects of competition between the applicant’s products and Taiwanese exporter products commenced from the order date and not from the date the goods physically arrived in Australia.
134 Third, the obligation of the Review Panel is to consider the applicant’s grounds of review. The Review Panel should have regard to contentions and arguments in so far as they are put forward by an applicant in support of a ground of review. Here, to the extent that in the elaboration provided to the Review Panel of its grounds of review, the applicant sought to support its Ground 4 on the basis of a possible exclusion by the Commissioner of export sales from its coincidence analysis, the applicant did not make any submission to the Review Panel about how the inclusion or omission of those export sales might be said to affect the conclusion on causation. It is not part of the Review Panel’s task to construct a submission from unanswered questions posited by the applicant.
135 Finally, a coincidence analysis was not used by either the Commissioner or the Review Panel to support the correct or preferable decision. The Commissioner’s conclusion (and affirmed by the Review Panel at [51], [52] and [58]) was that a coincidence analysis was not determinative of the issue of causation. It was one step in the causation analysis. Having found the coincidence analysis to be inconclusive (being partial and inconsistent), the Commissioner assessed causation based on historic trends. As the Review Panel observed at [25], the applicant’s arguments in relation to the Commissioner’s causation analysis were “based upon a miscomprehension of the causation analysis undertaken by the Commissioner and, in particular, its component parts.”
136 The applicant’s third ground of its application for judicial review is not made out. The Review Panel considered the applicant’s concerns with the Commissioner’s coincidence analysis but did not accept them.
CONCLUSION
137 The application is to be dismissed with costs.
I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hespe. |
Associate:
Dated: 17 October 2023
