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Lastest Judgments from the Federal Court

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    MIGRATION - application for an extension of time and appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review - whether the Immigration Assessment Authority failed to consider evidence - no jurisdictional error

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    MIGRATION - application for review of a migration decision under s 476A of the Migration Act 1958 (Cth) (the Act) - where the Minister made a decision under s 501(2) of the Act to cancel the applicant's absorbed person visa on the basis that he did not pass the character test due to having a substantial criminal record - where the Minister had made an earlier decision under s 501(3A) of the Act purporting to cancel the applicant's transitional (permanent) visa - whether the first cancellation decision had the effect of cancelling the absorbed person visa by operation of s 501F of the Act - whether the applicant held a transitional (permanent) visa in the first place - whether the first cancellation decision was a nullity - whether, in making the second cancellation decision, the applicant was denied procedural fairness - whether there had been a failure to take into account relevant considerations - whether the risk of reoffending was a mandatory relevant consideration - whether any irrelevant considerations were taken into account - whether using words like "privilege" and "expectations of the community" in the statement of reasons gave rise to jurisdictional error - whether Ministerial Directions under the Act were binding - whether the decision was illogical, irrational and unreasonable Held: application dismissed

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    MIGRATION - appeal from a decision of the Federal Circuit Court concerning application for a protection visa - whether primary judge erred in failing to find jurisdictional error - whether proper to reject claim on the basis that it was not particularised - where notification had been given under s 438 of the Migration Act 1958 (Cth) - where Tribunal failed to inform the appellant of notification - where appellant not informed of the documents the subject of the notification - whether denial of procedural fairness - appellant not deprived of opportunity of a successful outcome

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    CORPORATIONS - deregistration under s 574 of the Corporations Law - where reinstatement of companies is sought pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) - whether the plaintiffs were aggrieved by the deregistration of the companies - whether certain plaintiffs were aggrieved by virtue of their inability to join a tax consolidated group - whether, pursuant to s 601AH(2)(b), it is ‘just’ to reinstate the companies to enable that possibility or for other reasons - scope of the power conferred under s 601AH(3)(d) of the Corporations Act 2001 (Cth)

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    MIGRATION - visa cancellation decision pursuant to s 501(2) of the Migration Act 1958 (Cth) - application for judicial review - whether Minister's decision affected by apprehended bias - whether the Minister applied a policy - whether the Minister failed to give proper, genuine and realistic consideration to the applicant's case - whether the Minister's decision was unreasonable or illogical - no jurisdictional error shown - application dismissed

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    MIGRATION - appeal from decision of the Federal Circuit Court dismissing application for review of a decision of the Immigration Assessment Authority - where IAA affirmed a decision of a delegate of the First Respondent refusing to grant the appellant a protection visa - where appellant seeks to advance grounds not pursued before primary judge - whether s 424 of the Migration Act 1958 (Cth) applies to a review conducted by the IAA - whether IAA erred in declining to consider evidence and submissions made by the appellant's representative - whether the IAA erred in its application of s 36(2) of the Act - whether IAA gave sufficient consideration to the evidence in support of the appellant's claims - whether primary judge "considered the effect" of s 473GB - whether IAA misconstrued s 473DD - leave granted to rely on grounds not advanced before primary judge - appeal dismissed

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    COSTS - resolution of costs applications following orders made to permanently stay two of three representative proceedings - where orders for costs sought by respondents in respect of the resolution of a multiplicity dispute - where orders are sought by an applicant in one proceeding against a non-party to that proceeding - where orders sought in respect of the successful representative party's application for injunctive relief against an unsuccessful representative applicant REPRESENTATIVE PROCEEDINGS - power to award costs against group members - proper construction of s 43(1A) of the Federal Court of Australia Act 1976 (Cth)

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    MIGRATION - application for extension of time in which to file notice of appeal from Federal Circuit Court of Australia judgment - application denied as proposed appeal lacking in merit

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    COSTS - where leave granted to discontinue proceeding - dispute concerning costs - where respondent contends applicant should pay its costs - where Rule 26.12(7) of the Federal Court Rules 2011 (Cth) creates a presumption that the discontinuing party will pay the other party's costs unless good reason to the contrary shown - where presumptive rule not displaced on facts and contentions presented - applicant to pay respondent's costs

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    CORPORATIONS - where a liquidator seeks an order pursuant to s 57(1) of the Federal Court of Australia Act 1976 (Cth) appointing him receiver and manager of the property of a trust - application allowed.

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    MIGRATION - application for a protection visa - where the IAA affirmed a decision of the delegate of the Minister not to grant the appellant a Safe Haven Enterprise Visa - where a Judge of the Federal Circuit Court of Australia dismissed the application for judicial review - whether the primary Judge erred in concluding that the IAA did not fall into jurisdictional error by failing to consider a claim or issue contended by the appellant, to have arisen on the material - the scope of the IAA's obligation to consider a claim or issue which "clearly emerges" from its findings - whether "claims" are distinguishable from "issues" - appeal dismissed

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    CORPORATIONS - application for appointment of new liquidator upon resignation of existing liquidator - where change in partnership by liquidator - where appointment of new liquidator sought to facilitate ongoing administration of liquidation by staff familiar with relevant affairs - where issues as to supervision of liquidation under a power of attorney were raised by ASIC - order sought pursuant to s 90-15 of Schedule 2 to the Corporations Act 2001 (Cth) - application granted - liberty to creditors to apply to vary orders made - costs not to be borne by companies affected by orders

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    CORPORATIONS - interpleader proceeding under Part 18 of the Federal Court Rules 2011 (Cth) - application for orders for delivery up or possession of hard drives held by applicant - where hard drives contained electronic copies of documents seized under search warrant executed by the Australian Federal Police (AFP) - where AFP subsequently seized hard drives from applicant - whether third respondent requested copies of the documents on his own behalf or on behalf of relevant companies - whether his request was unlawful - whether the companies have a right to recover possession of or otherwise have a right to demand delivery up to them of the hard drives or electronic files - where the request made under section 3N of the Crimes Act 1914 (Cth) was made on behalf of the third respondent personally and the relevant companies - where the request was not unlawful - where the companies are entitled to demand the delivery up of the hard drive or electronic files but not to the exclusion of the third respondent's right to possession

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    CRIMINAL LAW - application for injunction against Commissioner of the Australian Federal Police (AFP) to restrain the AFP from providing documents to relevant liquidators and companies - further interlocutory applications seeking to restrain liquidators and companies from inspecting documents and to deliver up any such documents to the applicant - where liquidators and companies made requests to the AFP for copies of documents seized under search warrants executed by the AFP - requests made under section 3N of the Crimes Act 1914 (Cth) - whether applicant has standing to bring injunctions - where applicant does not have a sufficient interest in the subject matter of the proceeding - construction of "occupier" in s 3N - whether the construction of "occupier" is such that the companies are entitled to receive copies of the seized documents - where "occupier" is not limited to exclude a body corporate - declarations made that companies were "occupiers" at relevant times and their s 3N requests are valid - injunction application dismissed

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    REPRESENTATIVE PROCEEDINGS - approval of settlement - where liability for breaches of Racial Discrimination Act already established - where proposed settlement in upper range of likely recovery - where apology by respondent of substantial benefit to applicants - settlement approved

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    INDUSTRIAL LAW - determination of a separate question - construction of clause 21.1 of the Black Coal Mining Industry Award 2010 - payment of ordinary hours and overtime in a roster cycle - where ordinary hours of work must average 35 hours per week - where hours are averaged over the roster cycle - whether the Award requires ordinary hours to be divided evenly among the shifts in a roster cycle - whether proposed construction would give the words meaning they do not bear and effectively read words into the Award - where words are given ordinary meaning - where the textual, historical and legislative context confirms the ordinary meaning - where the employer sets the roster and may arrange ordinary hours of work and overtime in a roster - separate question answered "no"

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    MIGRATION - substantive criminal history - application for revocation of visa cancellation decision by Assistant Minister for Home Affairs - allegation of jurisdictional error - whether the decision was unreasonable - decision in keeping within discretion of the Minister. Held - appeal dismissed.

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    MIGRATION - appeal from decision of the Federal Circuit Court - whether there was jurisdictional error - new grounds of appeal raised in written submissions - interest of justice allows for amended grounds of appeal - s 473DD Migration Act 1958 (Cth) - whether an exceptional circumstance. Held - appeal dismissed.

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    PRACTICE AND PROCEDURE - application for discovery of documents - legal advice privilege - where non-party to proceeding resisted order requiring respondents to produce discovered documents on the basis that discovery would reveal communications subject to legal advice privilege - where confidential bundle of sample documents provided to Court for examination - whether sample documents privileged PRACTICE AND PROCEDURE - waiver of legal advice privilege - whether privilege attaching to sample documents waived by limited disclosure to third party

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    MIGRATION - appeal from a judgment of the Federal Circuit Court dismissing an application for judicial review - whether Administrative Appeals Tribunal failed to consider integer of appellant's claim

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