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Lastest Judgments from the Federal Court

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    PRACTICE AND PROCEDURE - application for extension of time to file appeal from judgment of Federal Circuit Court - whether extension of time should be granted - whether grounds of appeal had sufficient merit to warrant extension of time - whether adequate explanation for delay MIGRATION - judicial review - Partner (Class UK) visa - where application for judicial review dismissed by primary judge - whether appellant was afforded procedural fairness - appearance at Federal Circuit Court hearing by telephone - whether primary judge erred in finding that Tribunal had complied with the requirements in Minister for Immigration and Border Protection v Waensila (2016) 241 FCR 121 in respect of "compelling circumstances" - PIC 4020

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    PRACTICE AND PROCEDURE - interlocutory application - whether an order under r 20.15 of the Federal Court Rules 2011 (Cth) requiring the discovery of documents within identified categories ought to be made

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    PRACTICE AND PROCEDURE - order requiring a party to file a book of relevant documents -book filed pursuant to the order containing a redacted relevant document -- public interest immunity claimed in respect of redacted material - claim founded on national security interests - proceedings in the nature of judicial review of an administrative decision based upon information contained in the withheld material - public interests favouring non-disclosure outweighed by public interests favouring disclosure

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    ADMINISTRATIVE LAW - suspension of social security payment for failure to give a requested statement - requested statement relevant to whether recipient of benefit should continue to be treated as a single person - deficiency in reasons given by Administrative Appeal Tribunal - submissions of recipient liable to be rejected in any event - appeal from decision of Tribunal dismissed

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    COSTS - the plaintiff's claim was for $10,400 - the plaintiff was wholly successful - whether an order under r 40.08 of the Federal Court Rules 2011 (Cth) should be made reducing the costs and disbursements payable to the plaintiff.

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    INSURANCE - answering of separate questions - approach to resolution of remaining quantification issues

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    MIGRATION - Tribunal affirmed delegate's decision to cancel the appellant's Higher Education Sector (subclass 573) visa- Tribunal complied with its obligations of procedural fairness - no jurisdictional error identified- appeal dismissed

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    PRIVATE INTERNATIONAL LAW - shareholders' dispute involving individual and companies incorporated outside Australia - application for leave to serve originating application out of jurisdiction on foreign shareholder under Federal Court Rules 2011 r 10.43 - application seeking relief including winding up of foreign company that carries on business in Australia as Part 5.7 body on just and equitable ground under Corporations Act 2001 (Cth) s 583(c)(ii) - whether foreign shareholders in Cayman Islands and Hong Kong properly joined as parties under item 20 of r 10.42 in proceeding against Australian company - where applicant managing director and shareholder alleged shareholders' agreement provided that Part 5.7 body operate as quasi-partnership, exclusion from management of Part 5.7 body and claims under Fair Work Act 2009 (Cth) against Australian company and Part 5.7 body - whether prima facie case for relief and jurisdiction to grant the relief claimed under r 10.43(4) PRIVATE INTERNATIONAL LAW- application by foreign shareholder for stay of proceedings on forum non conveniens grounds under Federal Court Rules 2011 r 13.01 - where shareholders' agreement confers non-exclusive jurisdiction on Hong Kong courts - consideration of residual discretion to refuse leave to serve outside Australia under Federal Court Rules 2011 r 10.43(4) - whether Australia clearly inappropriate forum - whether claims under Fair Work Act 2009 and Corporations Act 2001 discrete from shareholders' dispute - consideration of Court's duty under Federal Court of Australia Act 1976 (Cth) s 22 to avoid multiplicity of proceedings PRIVATE INTERNATIONAL LAW - application to discharge anti-anti-suit injunction against foreign shareholder in Cayman Islands and set aside service of interlocutory application for that injunction - application dismissed

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    MIGRATION - application for Protection Visa - Tribunal rejected claim for protection based on adverse credibility findings - Tribunal misconstrued appellant's claim - Tribunal did not properly understand and consider claim put by appellant - ground of appeal not argued below - further evidence - appeal allowed

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    PRACTICE AND PROCEDURE - whether leave should be granted under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) to a party to take fresh steps in Supreme Court proceedings BANKRUPTCY AND INSOLVENCY - where debtor has become bankrupt - where creditor wishes to commence legal proceedings or take any fresh step in proceedings against bankrupt

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    NATIVE TITLE - interlocutory application to be joined as a respondent in claimant application made under the Native Title Act 1993 (Cth) - whether a relevant interest is demonstrated - whether it is in the interests of justice to join - where joinder applicant is the registered native title body corporate in a different native title determination area - joinder application dismissed

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    PRACTICE AND PROCEDURE - urgent injunction to restrain Minister from removing applicant from Australia - whether grounds of application are reasonably arguable to grant relief - whether Court has jurisdiction under s 476A of the Migration Act 1958 (Cth) - whether Court has jurisdiction under s 39B of the Judiciary Act 1903 (Cth) - application dismissed MIGRATION - whether applicant must be removed pursuant to s 198(6) of the Migration Act 1958 (Cth) - where applicant a previous protection visa applicant - where order made pursuant to s 91X of the Migration Act 1958 (Cth) for the non-publication of the applicant's name

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  • 04/02/18--21:50: Burgess [2018] FCA 447
  • MIGRATION - urgent application before a hearing to restrain a person from making a decision to cancel a visa under the Migration Act 1958 (Cth) -- whether serious question to be tried as to whether anticipated decision would be affected by apprehended bias -- evidence insufficient to demonstrate serious question to be tried sufficient to justify the order sought

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    MIGRATION - appeal from decision of Federal Circuit Court - appellant seeking review of refusal to grant a partner visa - discretion not to apply criteria under the Migration Regulations 1994 (Cth) - whether there were "compelling circumstances" justifying exercise of discretion - appeal dismissed

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    MIGRATION - Refugees - Sri Lankan Tamil who left Sri Lanka illegally, claiming to fear persecution for several reasons - where, in connection with the complementary protection criterion, the Refugee Review Tribunal did not refer in its reasons to the definitions of "torture", "cruel or inhuman treatment or punishment" or "degrading treatment or punishment, whether the Tribunal misunderstood or failed to apply the correct test for significant harm - whether the Tribunal failed to give meaningful or proper, genuine and realistic consideration to the appellant's submission - whether the Tribunal's failure to refer to international jurisprudence cited to it was a jurisdictional error - whether a claim to fear paramilitaries arose clearly on the material before the Tribunal and the Tribunal failed to deal with it - where questions had been answered against the appellant by the Federal Circuit Court ADMINISTRATIVE LAW - jurisdictional error - whether the Tribunal failed to apply the correct test - whether the Tribunal failed to give meaningful or proper, genuine and realistic consideration to the appellant's submission or to an integer of the appellant's claim

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    PRACTICE AND PROCEDURE - representative proceedings - application pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) seeking approval of proposed settlement when group members span related proceedings - relationship between case management objectives in Part VB and s 33V approved settlement schemes - whether the proposed settlement is fair and reasonable and in the interests of group members - proposed settlement fair and reasonable - settlement approved

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    MIGRATION – visa cancelled under s 501(3A) of the Migration Act 1958 (Cth) on grounds of substantial criminal record – review of a decision of the Administrative Appeals Tribunal – Tribunal affirmed decision of delegate not to revoke cancellation of the visa – whether the Tribunal did not take into account a relevant consideration under Ministerial Direction 65 – whether the Tribunal provided the applicant an opportunity to respond to adverse material – whether s 501(3A) is unconstitutional – application dismissed

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    MIGRATION - appeal from Federal Circuit Court of Australia - partner visa - where applicant applied in a single application for both a temporary partner visa (Subclass 820 visa) and a residence partner visa (Subclass 801 visa) - where a delegate (the first delegate) refused the application - where the Tribunal (the first Tribunal) affirmed the decision - where the Department then identified an error in decision to refuse the Subclass 801 visa and sought to remake the decision - where another delegate (the second delegate) refused the Subclass 801 visa - where the Tribunal (the second Tribunal) affirmed the decision of the second delegate - whether the second Tribunal had jurisdiction to consider the application for both the Subclass 820 visa and the Subclass 801 visa - where second Tribunal decided that it did not have jurisdiction to consider the Subclass 820 visa - where the primary judge held that the second Tribunal was correct in so deciding - whether primary judge erred in so holding - appeal dismissed

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    MIGRATION - appeal from the Federal Circuit Court of Australia - skilled visa - where the Migration Review Tribunal affirmed decision of a delegate of the Minister to refuse visa - where grounds of Tribunal's decision included failure to satisfy Public Interest Criterion 4020 - where applicant requested the Tribunal to summon a witness, namely the person who had purportedly signed a work experience reference, but the Tribunal did not do so - whether Tribunal decision affected by jurisdictional error - appeal dismissed

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