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Lastest Judgments from the Federal Court

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    MIGRATION - application for leave to appeal against dismissal under r 44.12(1)(a) of the Federal Circuit Court Rules 2011 (Cth) - primary judge did not consider or make findings in respect of the applicant's second ground of review - Minister conceded appropriateness of remitting matter to Federal Circuit Court - Court sufficiently satisfied of error to make consent orders agreed by parties

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    MIGRATION - appeal from a judgment of the Federal Circuit Court of Australia - whether the primary judge erred in finding that the AAT did not fail to consider the applicant's claim on the basis on which it was actually made, and/or drew a material inference that was arbitrary, unreasonable and not open to it on the evidence - whether the primary judge erred in the interpretation and/or application of the well-foundedness requirement - whether the primary judge erred by finding the AAT had asked itself the correct legal question and/or applied a correct proposition of law in respect of the applicant's claims concerning his religious practice of animal sacrifice - whether the primary judge engaged in an impermissible merits review - appeal dismissed, with costs

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    MIGRATION - appeal from Federal Circuit Court of Australia which quashed a decision of the Immigration Assessment Authority (Authority) - refusal of a protection visa - respondent an ethnic Hazara and a Shia Muslim - respondent claimed fear of harm in Afghanistan - delegate found that respondent faced a real chance of serious harm in his home district but that he could relocate to Kabul - Authority found instead that the respondent could relocate to Mazar-e-Sharif - by letter of 27 October 2016, Authority invited respondent to comment on "new information" under s 473DE of the Migration Act 1958 (Cth) but where it was not obliged to do so - Authority then incorrectly specified less than the statutory period, three days after the person is notified of the invitation, for response to the invitation - respondent also told by the Authority that any response he gave before a decision was made may be considered - no response made by respondent - whether the primary judge erred in holding that it was unreasonable for the Authority not to consider giving the respondent an effective opportunity to address the issue that it found dispositive and failed to consider acting under s 473DC(3) of the Migration Act - whether the primary judge erred in failing to find that procedural fairness required that the respondent be informed of the issues that the Authority considered may be dispositive of his case, and be given a reasonable opportunity to respond - whether the primary judge erred in failing to find that the Authority in fact acted pursuant to s 473DC(3) of the Migration Act in issuing its letter of 27 October 2016 and that in that circumstance the Authority's non-compliance with s 473DF(2) of the Migration Act, read with r 4.42(a) of the Migration Regulations 1994 (Cth), resulted in jurisdictional error - whether the Authority's letter of 27 October 2016 was issued pursuant to the Authority's non-statutory powers or capacities and whether it was legally unreasonable for the Authority not to give the respondent a meaningful time to respond - whether primary judge erred in holding that the Authority made a jurisdictional error in failing correctly to apply the relocation provision in s 36(2B)(a)

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    PRACTICE AND PROCEDURE – application for interlocutory injunction – whether Applicant has sufficiently arguable case – whether balance of convenience favours the grant of an interlocutory mandatory injunction – where Applicant argues that Minister owes a duty of care to Applicant’s son living in Nauru – where Applicant’s son suffers serious mental illness and suicidal tendencies

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    MIGRATION - appeal from the Federal Circuit Court - whether the primary judge erred in finding that certain of the Tribunal's findings were subsumed in findings of greater generality in accordance with principles explained in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 - no error identified - appeal dismissed

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    MIGRATION - whether specific intention to cause suffering is required to establish cruel or inhuman treatment or punishment - whether jurisdictional error in concluding that detention would not amount to systematic and discriminatory conduct - whether assessment of country information is a matter for the Tribunal

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    MIGRATION - whether primary judge erred in not finding jurisdictional error in decision of Tribunal - whether Tribunal erred in failing to put certain information to the appellant - whether such information was specific to the appellant or another person - whether observations by Tribunal were irrational or illogical on basis of information before it - whether primary judge failed to provide an intelligible justification for dismissing appellant's submission

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    PRACTICE AND PROCEDURE - application under r 35.05 of the Federal Court Rules 2011 (Cth) for an extension of time to appeal a decision of the Federal Circuit Court - whether application should be granted - whether adequate explanation for delay - whether appeal grounds have merit

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    PRACTICE AND PROCEDURE - whether applicant should be granted leave to amend the statement of claim - whether prejudice to respondent is substantial enough to refuse application for amendment - where there has been delay by applicant - amendment allowed on terms as to costs

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    PRACTICE AND PROCEDURE - application for an extension of time within which to file a notice of appeal against a decision of the Federal Circuit Court - where consideration of merits determinative - proposed grounds of appeal devoid of merit - application dismissed with costs

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    MIGRATION - appeal from the Federal Circuit Court - whether primary judge erred in following SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; (2016) 243 FCR 556 - no appellable error identified

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    ADMINISTRATIVE LAW - application for review of a decision made under s 41(1)(a) of the Privacy Act 1988 (Cth) not to investigate an interference with the Applicant's privacy - consideration of the application of National Privacy Principles 1,2,3, 4 and 10.1 by the decision-maker - consideration of whether the decision was reasonably open on the evidence

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    PRACTICE AND PROCEDURE - appeal from Federal Circuit Court of Australia - whether error in not finding jurisdictional error - whether error in not finding that Tribunal applied wrong test in relation to complementary protection - whether error in finding that the appellant had not made a particular claim before the Tribunal - whether the appellant was denied procedural fairness - whether the Tribunal made its decision with a closed mind

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    PRACTICE AND PROCEDURE - application pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) seeking an extension of time within which to appeal from a decision of the Federal Circuit Court MIGRATION - protection (Class XA) visa - whether Tribunal failed to consider the first applicant's claim to be a member of particular social groups - whether Tribunal fell into jurisdictional error in failing to engage in an active intellectual process and failing to make enquiries as required by law - no sufficient prospect of success established

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    MIGRATION - appeal from a decision of the Federal Circuit Court - whether the primary judge erred by failing to find that the Immigration Assessment Authority had failed to consider an integer of the appellant's claim by failing to find that the Immigration Assessment Authority had failed to apply properly the test of "intentionally causing" or "intentionally inflicting" in the context of poor prison conditions - where grounds of appeal fail to demonstrate appellable error - appeal dismissed

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    CONTRACTS - urgent applications for interlocutory injunctions to restrain prospective respondent - whether there is a serious question to be tried - whether agreements are franchising agreements under the Franchising Code of Conduct - whether unconscionable conduct occurred - whether there was a lack of good faith - whether damages would provide an adequate remedy - balance of convenience - application dismissed

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    PRACTICE AND PROCEDURE - application for extension of time within which to file an application for leave to appeal an interlocutory decision of the Federal Circuit Court - where substantive merits of the proposed appeal grounds are determinative - where no apparent error by primary judge shown - application dismissed

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