Troughton v Deputy Commissioner of Taxation

REASONS FOR JUDGMENT 1 This is an application pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), seeking an order of review in respect of a decision of the respondent Deputy Commissioner made under s 14T(2) of the Taxation Administration Act 1953 (Cth) ("the Administration Act") refusing to revoke a Departure Prohibition Order ("DPO") made in relation to the applicant under s 14S of the Administration Act on 13 May 2007. 2 The applicant was born in the United Kingdom in August 1943. He and his family emigrated to New Zealand in 1988. Between 1995 and 1999, the applicant was engaged as an engineering consultant in relation to energy policy reform then being implemented by the government of Victoria. Since 2002, the applicant has been resident in the United Kingdom and is now retired. 3 On 9 May 2007, the Commissioner assessed the applicant for income tax for the years ended 30 June 1996, 1997, 1998, 1999 and 2000. The total of those assessments was $5,616,712.30, all but $112,303.00 of which remains outstanding. On 13 May 2007, the Commissioner made an order under s 14S(1) of the Administration Act prohibiting the departure of the applicant from Australia for a foreign country. The applicant, who arrived in Australia on 16 April 2007, had proposed to leave Australia on 30 May 2007. The DPO prevented him from doing so. 4 In the period between the date of the making of the DPO and September 2007, there was correspondence between the applicant, and solicitors acting on his behalf, and the Commissioner. Information was provided by the applicant which dealt both with his liability to pay Australian tax in the years to which the assessments related and with the appropriateness of maintaining the DPO. On 20 June 2007, the applicant's solicitors requested the revocation of the DPO pursuant to s 14T of the Administration Act. On 26 June 2007, the applicant attended for examination pursuant to s 264(1) of the Income Tax Assessment Act 1936 (Cth) and s 353-10 of Schedule 1 to the Administration Act. He was accompanied by his legal representatives, who requested, on his behalf, that the DPO be revoked. That request was repeated, and formalised, in letters to the Commissioner from the applicant's solicitors on 29 June, 10 July and 16 August 2007. It was those requests which led to the Commissioner's refusal to act under s 14T of the Administration Act on 14 September 2007, and it is that refusal which forms the subject matter of the present proceeding. 5 The heading to Part IVA of the Administration Act is "Departure from Australia of certain tax debtors". Division 2 thereof, headed "Prohibition and authorisation of departure of certain tax debtors", contains the provisions which are principally of present concern. By s 14R, it is provided that a person in respect of whom a DPO is in force, and who knows that it is in force in respect of him or her, shall not depart from Australia for a foreign country. That prohibition does not apply if the departure is authorised by a "departure authorisation certificate", a subject which I shall mention shortly. Section 14S provides for the making of DPOs. Subsection (1) thereof is in the following terms: Where: (a) a person is subject to a tax liability; and (b) the Commissioner believes on reasonable grounds that it is desirable to do so for the purpose of ensuring that the person does not depart from Australia for a foreign country without: (i) wholly discharging the tax liability; or (ii) making arrangements satisfactory to the Commissioner for the tax liability to be wholly discharged; the Commissioner may, by order in accordance with the prescribed form, prohibit the departure of the person from Australia for a foreign country. Section 14T deals with the subject of the revocation and variation of DPOs. Since it is central to the present proceeding, I shall set it out in full: (1) Where a departure prohibition order is in force in respect of a person and: (a) the tax liabilities to which the person is subject have been wholly discharged and the Commissioner is satisfied that it is likely that the tax liabilities to which the person may become subject in respect of, or arising out of, matters that have occurred will be: (i) wholly discharged; or (ii) completely irrecoverable; or (b) the Commissioner is satisfied that the tax liabilities to which the person is subject are completely irrecoverable; the Commissioner shall, on application being made to the Commissioner by the person to do so or on the Commissioner's own motion, revoke the departure prohibition order. (2) Where a departure prohibition order is in force in respect of a person, the Commissioner may, in the Commissioner's discretion and on application being made to the Commissioner to do so or on the Commissioner's own motion, revoke or vary the departure prohibition order. (3) A reference in paragraph (1)(a) to tax liabilities having been wholly discharged includes a reference to arrangements satisfactory to the Commissioner having been made for those tax liabilities to be wholly discharged and a reference in that paragraph to the Commissioner being satisfied that it is likely that tax liabilities to which a person may become subject will be wholly discharged includes a reference to the Commissioner being satisfied that it is likely that arrangements satisfactory to the Commissioner will be made for those tax liabilities to be wholly discharged. (4) As soon as practicable after a departure prohibition order made in respect of a person is revoked or varied under this section, the Commissioner shall: (a) cause to be served, as prescribed, on the person; and (b) cause to be given to each person to whom a copy of the departure prohibition order was given; notification of the revocation or variation of the departure prohibition order. (5) As soon as practicable after a decision is made under subsection (1) or (2) refusing to revoke a departure prohibition order made in respect of a person, the Commissioner shall cause to be served, as prescribed, on the person notification of the decision. Section 14U deals with the subject of "departure authorisation certificates". Subsection (1) thereof is in the following terms: Where, on application made by a person in respect of whom a departure prohibition order is in force: (a) the Commissioner is satisfied: (i) that, if a departure authorization certificate is issued in respect of the person, it is likely that: (A) the person will depart from Australia and will return to Australia within such period as the Commissioner considers to be appropriate in relation to the person; and (B) circumstances of the kind referred to in paragraph 14T(1)(a) will come into existence within such period as the Commissioner considers to be appropriate in relation to the person; and (ii) that it is not necessary or desirable for the person to give security under subsection (2) for the person's return to Australia; or (b) in a case where the Commissioner is not satisfied with respect to the matters referred to in paragraph (a): (i) the person has given security under subsection (2) to the satisfaction of the Commissioner for the person's return to Australia; or (ii) if the person is unable to give such security, the Commissioner is satisfied that: (A) a departure authorization certificate should be issued in respect of the person on humanitarian grounds; or (B) a refusal to issue a departure authorization certificate in respect of the person would be detrimental to the interests of Australia; the Commissioner shall issue a certificate authorizing the person to depart from Australia for a foreign country on or before the seventh day after a day (being a day later than, but not more than 7 days later than, the day on which the certificate is issued) specified in the certificate. 6 Division 3 of Part IVA is headed "Appeals from, and review of, decisions of the Commissioner". By s 14V, a person aggrieved by the making of a DPO may appeal to the Federal Court, or to the Supreme Court of a State or Territory, against the making of the DPO. By s 14Y, an application may be made to the Administrative Appeals Tribunal for a review of a decision under s 14T or s 14U. 7 Division 4 of Part IVA deals with "Enforcement", a subject to which it is unnecessary further to refer. 8 In the present proceeding, the applicant did not challenge the making of the DPO with respect to him. Further, he accepted that the existence of his tax liability - upon which the DPO was based - was not here contestable; and he did not seek to contest it. The applicant confines his challenge to the Commissioner's refusal to act under s 14T of the Administration Act to revoke the DPO. Within that context, the application is further confined, in a respect to which I shall refer presently. 9 The decision maker under s 14T of the Administration Act was Mr Gregory John Trewin, Regional Director (Wickenby) in the serious non-compliance business line of the Australian Taxation Office. In making his decision, Mr Trewin had regard to many documents, to which he referred in his affidavit sworn on 23 November 2007. Perhaps the principal document to which he referred was an internal submission dated 12 September 2007 by the Operational Director, Debt - Project Wickenby. Many of the other documents to which Mr Trewin had regard were also referred to in the internal submission. 10 The internal submission was a document of 19 pages, more than 13 of which were concerned with the question whether Mr Trewin should be satisfied that the applicant's tax liabilities were "completely irrecoverable" within the meaning of s 14T(1) of the Administration Act. The submission dealt very briefly only, and in terms to which I shall refer in due course, with the considerations that were thought to bear upon the general discretion arising under subs (2) of s 14T. It was recommended that Mr Trewin should not be satisfied that the applicant's tax liabilities were completely irrecoverable, and that he should find that the briefly-identified factors said to bear upon the general discretion were not sufficient to warrant the revocation or variation of the DPO. 11 In a document signed by the applicant on 20 June 2007 which was before Mr Trewin, the applicant said that his only assets were an entitlement to an annual pension payment from an occupational pension fund in the United Kingdom, in an amount not exceeding £UK40,000 per annum (after tax) and about $108,000 in an Australian superannuation fund. Additionally, he referred to two bank accounts which he held jointly with his wife: one in the United Kingdom, then having a balance of about £UK25,000; and the other in New Zealand, then having a balance of about $NZ65,000. He said that he held "no beneficial interest or legal interest in any other assets". He added that the funds necessary for his legal representation in Australia were being provided by his son. The applicant asserted that he was unable to pay his Australian tax liability. The liability was, according to the applicant, completely irrecoverable within the terms of s 14T. 12 The Commissioner, however, had access to a deal of information which, in the view of Mr Trewin, cast doubt upon the applicant's assertions that he had no assets other than those to which he referred. The author of the internal submission, and subsequently Mr Trewin himself, considered the extent of the applicant's assets by reference to four broad categories: assets in Australia; assets in the United Kingdom; assets in New Zealand; and assets in Switzerland. For present purposes, I need say nothing further about the first two of these categories. It was Mr Trewin's treatment of the applicant's asset situation in New Zealand and Switzerland which constituted the focus of the applicant's case in this proceeding. 13 Save for the bank account held jointly with his wife to which I have referred, there appeared to be no evidence of any New Zealand assets owned absolutely by the applicant. However, the applicant was involved (to use a neutral expression at this stage) in two family trusts which did hold assets in New Zealand. He was a joint trustee, with his wife, of both trusts, and was within the class of discretionary beneficiaries under one of them. Mr Trewin was not persuaded that the applicant did not have an interest in, or access to, the property of these trusts, or at least one of them, or that he did not have control over that property. The Swiss assets with which the applicant was said to be connected were, it seems, bank account funds held under a trust of which, according to the applicant's own evidence provided at the examination on 26 June 2007, he had been the settlor, but was not the trustee, and in which he had no beneficial interest. He said that the beneficiaries of this trust were his children. However, the applicant did not provide a copy of the trust deed or other relevant documents, notwithstanding a request which he made in that behalf of the trustee. It seems that the trust was administered under the auspices of a Swiss firm called "Strachans", with whom Mr Trewin and others in his section had had experience which caused him to form the view that the firm was involved in the establishment and operation of offshore trust structures that would facilitate the concealment of income that might otherwise be subject to Australian tax. For those reasons, and particularly because the applicant had been unable to provide complete and satisfactory answers to a number of the Commissioner's inquiries with respect to the Swiss trust, Mr Trewin found himself unable to be satisfied that the applicant had no interest in, or control over, that trust and its assets. 14 Under s 14T(2) of the Administration Act, it was noted in the internal submission that it "does not appear to be suggested" that the applicant was suffering from financial hardship as a result of the DPO. The submission also noted the existence of a circumstance which had been drawn to the Commissioner's attention by the applicant, namely, that his wife had recently been diagnosed with breast cancer, and was requiring ongoing treatment. It was noted that she would "obviously prefer" to have the applicant by her side in the United Kingdom. However, the view was taken that Mrs Troughton's circumstances were not sufficient to warrant the exercise of a general discretion to revoke, or to vary, the DPO. 15 In par 8 above, I said that the application in this proceeding was confined in a way to which I would return. I refer to that subject now. In the requests made on behalf of the applicant for the DPO to be revoked, no grounds were explicitly articulated. However, from the general flow of the correspondence between the applicant's solicitors and the Commissioner, and from the tenor of the answers given by the applicant at the examination on 26 June 2007, it would seem that the applicant's basic proposition was that he was quite unable to discharge his Australian tax liabilities. If so, the applicant's position would bespeak reliance upon subs (1) of s 14T, namely, by implicitly asserting that the Commissioner should be satisfied that the liabilities were completely irrecoverable. No doubt it was the way in which the applicant had generally balanced his representations to the Commissioner which was responsible for the emphasis given to the subject of irrecoverability in the internal submission. However, in his case in this court, the applicant did not attack so much of Mr Trewin's decision as arose under subs (1) of s 14T of the Administration Act. Rather, he confined his attack to so much of that decision as arose under subs (2) thereof. 16 As I have mentioned above, the internal submission addressed the subject of the general discretion under s 14T(2) as though it were distinct from the subject of irrecoverability under s 14T(1). However, as I read it, it did so in a way which took the conclusion under subs (1) as a given. That is to say, the submission suggested that Mr Trewin should not be satisfied that the applicant's tax liabilities were completely irrecoverable, and then addressed the further question whether, in those circumstances and against that background, there were any other general discretionary matters, of a kind proper to be taken into account under subs (2), which should lead to the revocation or variation of the DPO. 17 In his affidavit of 23 November 2007, Mr Trewin said that he had decided not to revoke the DPO because: I was not satisfied that the tax liabilities to which the Applicant was subject were completely irrecoverable; andI was not satisfied, in the alternative, that it was otherwise appropriate to revoke the DPO having regard to the Applicant's substantial tax liabilities and having regard to my belief that the Applicant had access to funds outside Australia from which the tax liabilities could be discharged. As I read this second paragraph, Mr Trewin took into account what had been put by the applicant and referred to in the internal submission, but did not consider that those matters were sufficient to outweigh the circumstances that there were "substantial" tax liabilities and that, as he believed, the applicant had access to funds outside Australia from which the liabilities could be discharged. It is implicit that Mr Trewin took the view that, absent the applicant's presence in Australia, the Commissioner's ability to recover the tax liabilities in question was substantially compromised. On the other hand, it necessarily followed from Mr Trewin's decision under subs (1) that, at least so long as the applicant remained in Australia, the liabilities were not completely irrecoverable. It seems inescapable that Mr Trewin took the view that the applicant's continued presence in Australia was relevant to the practical capacity of the Commissioner to recover the tax. 18 In his attack on Mr Trewin's decision under s 5(1) of the ADJR Act, the applicant relied upon four grounds, namely: (a) that the making of the decision was an improper exercise of the statutory power in that irrelevant considerations had been taken into account (ADJR Act, s 5(1)(e) and (2)(a)); (b) that the making of the decision was an improper exercise of the statutory power in that relevant considerations had not been taken into account (ADJR Act, s 5(1)(e) and 2)(b)); (c) that the making of the decision was an improper exercise of the statutory power in that the power was exercised for a purpose other than that for which it had been conferred (ADJR Act, s 5(1)(e) and (2)(c)); and (d) that the decision involved an error of law (ADJR Act, s 5(1)(f)). I shall consider each of these in turn. Before doing so, however, it will be necessary to deal with important submissions which the parties made as to the nature of the discretion given by s 14T(2), and as to the purpose of Part IVA of the Administration Act generally. 19 As may be seen, the decision whether to revoke a DPO under s 14T(2) of the Administration Act is a discretionary one. No criterion is expressly mentioned in the subsection. That led Northrop J to describe the discretion as "unfettered" in Edelsten v Commissioner of Taxation (1992) 36 FCR 236, 240. However, counsel for the Commissioner accepted, correctly in my view, that such a discretion must still be exercised in accordance with the scope and objects of the legislation, particularly of the part of the legislation in which the relevant statutory provision is to be found: see FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 368. Counsel submitted that of particular relevance were the purposes for which the power to make a DPO under s 14S is conferred. I accept that admission: see Edelsten at 244. Counsel for the applicant made a submission to like effect in general terms, but at the point of detail, and of relevance to the facts of the present case, that submission departed from that being advanced on behalf of the Commissioner. The applicant's case stressed the severe impact upon freedom of movement which was occasioned by a DPO, and would have it that the Commissioner was always obliged, under s 14T(2), to take that impact into account, particularly with reference to the circumstances of the taxpayer himself or herself. It was also said that the Commissioner was obliged to consider whether the departure of the taxpayer would in fact affect the recoverability of tax. The Commissioner's case was that, as a matter of statutory purpose, Part IVA was overwhelmingly concerned with the protection of the revenue, and that such a consideration should always inform the exercise of a discretion under s 14T(2). 20 I agree with the submissions made on behalf of both parties that the starting point is s 14S. Uninstructed by authority, I would have taken the view that that section contains its own explicit statement of purpose, namely "the purpose of ensuring that the person does not depart from Australia for a foreign country" without discharging, or making arrangements for the discharge of, his or her tax liability. There are two things to note about this provision. The first is that the word "ensuring" is a strong one. It conveys the meaning that preventing a person from leaving Australia with an undischarged tax liability should be regarded as a high priority. The second thing to note is that s 14S(1)(b) is not expressed thus: "where … the Commissioner believes on reasonable grounds that the person should not depart from Australia for a foreign country without …." If it were so expressed, the paragraph would require the Commissioner to exercise a discretion as to the desirability of the person leaving Australia without discharging, or making arrangements to discharge, the tax liability in question. However, in the way the paragraph is in fact expressed, it is a given that the person should not depart from Australia without discharging, or making arrangements to discharge, the tax liability. The Commissioner's function is to consider the desirability of making a DPO in order to ensure the achievement of that objective. 21 However, there is authority which I should follow that suggests that the purposive dimension of s 14S should not be ascertained from such a literal reading of the words of the section. In Dalco v Federal Commissioner of Taxation (1987) 19 ATR 443, 447-448, Young J said of s 14S: I am of the view that that is the way that one approaches the section. The Commissioner is to believe on reasonable grounds that it is desirable to stop a person leaving Australia because it is necessary to collect the tax that is owed to the government and that that discharging of the tax liability will be affected by the person going overseas.His Honour's view was endorsed in this court in Edelsten v Federal Commissioner of Taxation (1989) 85 ALR 226, 230 and in Skase v Commissioner of Taxation (1991) 32 FCR 206, 209 and 210-211. In the latter case, Pincus J said that "there must be … the circumstance that recoverability will be affected by the departure of the taxpayer from Australia." (32 FCR at 211) 22 It follows that s 14S(1)(b) should be read not literally, but as though it referred to a belief by the Commissioner (on reasonable grounds) that it was desirable that the person not leave Australia without discharging the tax liability or making the arrangements there referred to. Thus it is not to be taken as a given that, in every case, the departure of the person from Australia will make it unlikely, or at least less likely, that the tax liability will be discharged, or that the ability of the Commissioner to recover the tax will be impaired. These are things which must be considered by the Commissioner in every case. The purpose of s 14S, and accordingly a central purpose of Part IVA, is not the prevention of persons (owing tax) from leaving Australia simpliciter: it is the prevention of such persons from leaving Australia where, in the Commissioner's belief reasonably arrived at, the recovery of tax would or might thereby be impaired. 23 In that result, at least so far as revealed by s 14S, the general scope and objects of Part IVA of the Administration Act are as contended for by both sides in the present case. As contended for by the Commissioner, they are the protection of the revenue. As contended for by the applicant, they are the prevention of persons (owing tax) from leaving Australia where that would affect the recoverability thereof. 24 The next provision to which reference should be made is s 14U. Here the legislature has turned its mind to the kind of exceptional circumstances that might arise, in which the non-achievement of the purpose referred to in s 14S(1) might be tolerated. Section 14U deals with four situations. First, there is the situation in which the Commissioner is satisfied that the person, having departed from Australia, will return within an appropriate period, that existing liabilities will be wholly discharged, and that future liabilities will either be wholly discharged or be completely irrecoverable. Secondly, there is the situation in which the person has given security. Thirdly, there is the situation in which permission to depart might be sustained on humanitarian grounds. And finally, there is the situation in which a refusal to permit departure would be detrimental to the interests of Australia. The circumstances to which s 14U is addressed are detailed and apparently comprehensive. The section is plainly relevant to the applicant's contention that the impact of a DPO upon the particular taxpayer had to be taken into account under s 14T(2). The contention was based upon what the Full Court said in Poletti v Commissioner of Taxation (1994) 52 FCR 154. Dealing with the nature of an appeal under s 14V, the Full Court said (52 FCR at 159-160): The terms of the Act do not support the notion that the appeal is by way of rehearing de novo. The evident purpose of the right of appeal is to enable departure prohibition orders which the Commissioner may make, to be set aside where the person against whom the order is made is not subject to a tax liability or where the Commissioner's belief (to which para (b) of s 14s(1) is directed) is not held bona fide or is not based on reasonable grounds. The requirement that reasonable grounds must exist to support the Commissioner's belief is a safeguard to the taxpayer that departure prohibition orders will not be made against him or her in unreasonable circumstances. The making of such an order is a severe intrusion into a person's liberty, privacy and freedom of movement. On the other hand, the protection of the revenue is of great importance to Australia. These two interests must be balanced. Section 14s is an example of a situation where it is necessary to achieve this balance. As I read the Full Court, their Honours were referring to the legislative balance which had been achieved by the enactment of s 14S, rather than to a process of balancing which, at the level of administrative decision-making, was mandated by the section. They were not concerned with s 14T(2). For my own part, I consider that, at least so far as it goes, s 14U encapsulates such legislative concern as there is in the personal circumstances of a taxpayer with respect to whom a DPO is extant. 25 Returning to the case before the court, the applicant identified six considerations which he alleged had been taken into account by Mr Trewin, and which were said to be irrelevant. They were: i. that the continuation of the DPO over the Applicant is, to the knowledge of the Respondent, capable of imposing duress on the Applicant; ii. that the Applicant is the discretionary object of certain trusts, which hold or held assets or funds in Australia or New Zealand; iii. the existence of transactions between those trusts; iv. the Respondent's speculations as to whether Dr Troughton's United Kingdom pension enabled him to purchase certain airfares; v. the Respondent's speculations as to whether Dr Troughton has an interest in the Trevi Trust; vi. the fact that advisers used by Dr Troughton have also advised Australian taxpayers whose affairs are being investigated in Project Wickenby. I do not consider that the first item on the applicant's list is a "consideration" in the sense contemplated by s 5(2)(a) of the ADJR Act. Neither did counsel for the applicant so treat it in their submissions. They relied upon the allegation of duress in their case under s 5(2)(c) of that Act, and it is there that I too consider that the matter is more appropriately addressed. 26 As to items ii-v on the applicant's list under s 5(2)(a) of the ADJR Act, the point appeared to be that those matters were relevant under subs (1) of s 14T, but not under subs (2) thereof. In their written outline, counsel for the applicant put it this way: As submitted above, the analysis of the financial matters and structures set out in the bulk of Mr Trewin's affidavit and the supporting internal submission are not relevant considerations in relation to the exercise of the discretion to maintain the DPO. They are relevant to the question of whether the Commissioner must revoke the DPO. The question in that regard is whether the Commissioner can be satisfied that the tax liability is irrecoverable. The problem with this submission is that, on the application for revocation made by the applicant, a substantial part, if not the lion's share, of Mr Trewin's task fell under subs (1). Items ii-v on the list were centrally relevant to that task, and the contrary was not submitted. The applicant may have confined his application in this court to so much of Mr Trewin's decision as was made under subs (2), but Mr Trewin himself was not so confined. Merely to point to considerations that Mr Trewin took into account for the purpose of subs (1) does not make good the proposition that he took irrelevant considerations into account when he came to subs (2). 27 I would add that, in a case such as the present when a taxpayer makes an undifferentiated application for revocation, I consider it both logical and manifestly in harmony with the structure of s 14T for the decision-maker to consider first whether he or she must revoke the DPO under subs (1), and only if a negative answer is given to that question to turn to consider whether he or she should revoke the DPO under subs (2). At that second stage, the fact that a conclusion had been reached that the tax liabilities in question were not completely irrecoverable would seem to be an entirely proper consideration to take into account, even if only by way of background. Different considerations may, of course, come into play in the case of an application for revocation which relies on subs (2) alone; but that is not this case. 28 Neither in their written outline nor in their oral submissions did counsel for the applicant deal with item vi on the applicant's list. The matter was raised with Mr Trewin in cross-examination, and he made it clear that he had had experience of other situations in which the same advisers (as used by the applicant) had been involved in the establishment of trusts, and in which persons assessed for Australian tax had been found, contrary to ostensible documentary appearances, to have had control over trust assets, and to have had "the final say in what to do with the money". Although it was put to Mr Trewin that he was confusing ownership and control, it was not submitted that, if the identity of the advisers had a rational tendency, as a matter of fact, to assist Mr Trewin in arriving at a particular state of satisfaction as to ownership (or, if it matters, control) in relation to the assets of the Swiss trust, he was, as a matter of law, prohibited from taking it into account. 29 The relevant considerations which, according to the applicant, should have been taken into account by Mr Trewin, but which were not taken into account, were listed by the applicant as follows: i. the personal hardship imposed by the continuation of the DPO on the Applicant in respect of his family obligations in the United Kingdom; ii. the personal circumstances of the Applicant's spouse and the hardship imposed on her by the continuation of the DPO; iii. the absence of utility of the continuation of the DPO in that the continuing presence in Australia of the Applicant can have no effect on the lawful recovery by the Respondent of the Applicant's tax liability. With respect to the third item on this list, the applicant provided the following particulars: