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Lastest Judgments from the Federal Court

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    MIGRATION - cancellation on basis of character test - substantive criminal record - alleged unreasonableness in account minor children and elderly parents in applicant's family - interests of Australia - dismissed

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    MIGRATION - appeal from Federal Circuit Court of Australia - whether primary judge erred in failing to find that the Tribunal ignored corroborating evidence in a newspaper article - whether the Tribunal failed to properly consider the appellant's claim that he was a member of a social group of people who had witnessed corruption - whether the decision of the Tribunal was affected by procedural fairness in the form of apprehended bias - whether the primary judge erred by failing to give adequate reasons, giving rise to procedural unfairness or a constructive failure to exercise jurisdiction - Held: appeal dismissed

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    MIGRATION - application to extend time to file notice of appeal - whether a reasonable prospect of establishing that the Tribunal fell into jurisdictional error in failing to consider evidence provided by the applicant - whether a reasonable prospect of establishing that the Tribunal fell into jurisdictional error when assessing the applicant's claim against the criteria in s 36(2) of the Migration Act 1958 (Cth) - application granted.

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    EDUCATION – Australian Education Act 2013 (Cth) (‘the Act’) – Basic requirements for approval – Fit and proper to be an approved authority – Ongoing funding requirements for approved authorities – Variation or revocation of approval on Minister’s own initiative – Australian Education Regulation 2013 (Cth) (‘the Regulation’) – Not-for-profit requirement ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal under s 44 of Administrative Appeals Tribunal Act 1975 (Cth) – where Respondent revoked Applicant’s status as approved authority due to failure to satisfy requirements for Commonwealth funding under Act – whether Tribunal erred in law by making various findings not reasonably open on evidence – whether finding available on evidence that money had been ‘applied’ for purpose of school or ‘distributed’ whether directly or indirectly to any other person within meaning of reg 26 of Regulation – whether Tribunal misconstrued s 81(2) of Act by imposing higher threshold on Applicant for variation of approval than legislation required or did not adequately reveal process of reasoning

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    MIGRATION - application to extend time to file notice of appeal - whether a reasonable prospect of establishing that Tribunal misunderstood or misapplied definition of "refugee" - application granted

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    PRACTICE AND PROCEDURE - interlocutory application - application to strike out particulars of defence - whether particulars of defence should be struck out pursuant to r 16.21(1) of the Federal Court Rules 2011 (Cth) - whether the particulars of the respondent's justification defence are inadequate and insufficient to support the defence - whether paragraphs of the defence plead facts and allegations that are irrelevant to the qualified privilege defence - whether subpoena has a legitimate forensic purpose - whether subpoena amounts to "fishing" or third party discovery to support a justification defence that has not been properly pleaded - whether orders should be made pursuant to r 2.32 of the Federal Court Rules 2011 (Cth) or r 16.21(2) of the Federal Court Rules 2011 (Cth) and s 37AF(1)(b) of the Federal Court of Australia Act 1976 (Cth) that the defence be treated as "confidential" and "not to be distributed to any third party" DEFAMATION - whether publications contained defamatory imputations - defence of justification pursuant to s 25 of the Defamation Act 2005 (NSW) - defence of qualified privilege pursuant to s 30 of the Defamation Act 2005 (NSW) - damages, including aggravated damages, sought

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    MIGRATION - application for judicial review - whether Federal Circuit Court failed to identify error in decision of Refugee Review Tribunal ("Tribunal") - whether the Tribunal's failure to make inquiries constituted jurisdictional error - whether adverse credibility findings were legally unreasonable - appeal dismissed

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    MIGRATION - appeal from a judgment of the Federal Circuit Court which dismissed an application for judicial review of a decision of the Refugee Review Tribunal - where the Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection (Class XA) visa - whether the Court erred in dismissing the application for judicial review - whether the Tribunal failed to have regard to a relevant consideration - whether the Tribunal's decision to give little weight to evidence in light of adverse credibility findings was irrational or illogical - whether the Tribunal had misunderstood the law or applied the wrong test when considering whether the applicant was a refugee - whether the Tribunal erred by failing to make an obvious enquiry about a critical fact, whether by the exercise of its power under s 424 of the Migration Act 1958 (Cth) or otherwise

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    PRACTICE AND PROCEDURE - application by the respondent for a vexatious proceedings order against the applicant under s 37AO of the Federal Court of Australia Act 1976 (Cth) - whether the respondent had standing to seek a vexatious proceedings order - whether various proceedings had been "instituted" and/or "conducted" by the applicant - whether these proceedings were "vexatious" and "frequent" - whether indemnity costs were appropriate in the circumstances Held: application granted

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    MIGRATION - where Administrative Appeals Tribunal rejected whole of appellant's account as false - consideration of nature of the Tribunal's statutory fact-finding task - whether logical and probative basis for Tribunal's credibility finding - whether error in Federal Circuit Court failing to uphold grounds of review - appeal allowed

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    CONTEMPT OF COURT - documents obtained through summonses - holder of the documents subject to the principle in Harman v Secretary of State for Home Department [1983] 1 AC 280 (the Harman obligation) - where holder of the documents required to give documents to the Commissioner by notice pursuant to s 353-10 of Sch 1 to the Taxation Administration Act 1953 (Cth) (the Notice) - whether holder of the documents is prevented or excused from complying with the Notice by reason of the Harman obligation TAXATION - whether the recipient of a notice to give documents to the Commissioner pursuant to s 353-10 of Sch 1 to the Taxation Administration Act 1953 (Cth) (the Notice) is prevented or excused from complying with the Notice by reason of the principle in Harman v Secretary of State for Home Department [1983] 1 AC 280 (the Harman obligation) - whether the Harman obligation prevents taxation officers from receiving any documents given to them pursuant to the Notice, or using those documents in the lawful exercise of the powers and functions vested in the Commissioner

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    MIGRATION - appeal from Federal Circuit Court refusing Constitutional writ relief - where Minister's delegate refused waiver of visa condition under s 41(2A) of Migration Act 1958 (Cth) - whether appellant's brother's injury compelling and compassionate circumstances that resulted in major change to appellant's circumstances under reg 2.05 of Migration Regulations 1994 - no jurisdictional error identified - application dismissed PRACTICE AND PROCEDURE - adequacy of trial judge's ex tempore reasons for dismissing application - whether trial judge erred in failing to address additional ground appellant raised in oral argument - consideration of duty to give reasons on material issue of fact or law - held appellant suffered no practical injustice

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    MIGRATION –appeal from decision of Federal Circuit Court – appellant claiming a fear of harm in Sri Lanka – whether Federal Circuit Court should have identified jurisdictional error in Tribunal’s treatment of two documents submitted to the Tribunal – appeal dismissed

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    MIGRATION - application for leave to rely on ground not advanced before primary judge - whether merit in amended ground of appeal - whether Tribunal failed to consider exercising its discretion under s 473GB(3)(b) of the Migration Act 1958 (Cth) - whether jurisdictional error in failure to consider exercising discretion or failure to exercise discretion in favour of disclosing documents or information - whether failure to consider exercising the discretion to disclose or failure to exercise the discretion in favour of disclosing was legally unreasonable in the circumstances

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    MIGRATION - whether Tribunal failed to consider integer of claim - whether fresh evidence permitted - no jurisdictional error - appeal dismissed

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    CORPORATIONS - Voluntary winding up - Leave to proceed against - Voluntary winding up brought about by the handing down of a judgment similar to that in the main proceedings - Voluntary winding up commenced after hearing of main proceedings

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