MIGRATION - appeal from a decision of the Federal Circuit Court of Australia - protection visa - review of decision by Administrative Appeals Tribunal to affirm delegate's decision to refuse visa - whether the primary judge applied the correct test of persecution pursuant to s 36(2)(aa) of the Migration Act 1958 (Cth) - whether the primary judge erred in failing to find that the Tribunal made an error of law in its treatment of factual issues - appeal dismissed
APK16 v Minister for Immigration and Border Protection [2018] FCA 1628
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Singh v Minister for Immigration and Border Protection [2018] FCAFC 184
MIGRATION - application for judicial review of a decision of the Federal Circuit Court - where Administrative Appeals Tribunal dismissed application for review of decision to refuse visa after failure to attend hearing under s 362B of the Migration Act 1958 (Cth) - consideration of principles concerning Tribunal's requirement to give a statement of reasons and consider matters advanced in appellant's application for reinstatement - where Tribunal's reasons considered whether appellant was notified of hearing date but not all matters advanced to support reinstatement - appeal allowed - matter remitted to the Tribunal for determination according to law
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Australian Securities and Investments Commission v Financial Circle Pty Ltd [2018] FCA 1644
SUPERANNUATION - application from ASIC for court approval of declarations, injunctions and costs - where defendant company contravened numerous provisions of Corporations Act 2001 (Cth), the Australian Securities and Investments Commission Act 2001 (Cth) and the National Consumer Credit Protection Act 2009 (Cth) - where scheme created for "borrowers" to access small amounts of money - where company earned money by transferring "borrowers" to a self-managed superannuation fund and advising them to obtain insurance, thereby collecting commissions and fees in excess of the "loan" amount - where ASIC and defendant company reached agreement on liability for contravention of the statutory provisions and penalties - application approved by court
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EUQ17 v Minister for Home Affairs [2018] FCA 1645
MIGRATION - appeal from Federal Circuit Court dismissing appeal from Immigration Assessment Authority - appellant entered Australia by sea at Territory of Ashmore and Cartier Islands - where separately the Full Court of the Federal Court of Australia has declared that the purported appointment of an area of waters within the Territory of Ashmore and Cartier Islands as a proclaimed port was invalid - whether appellant a 'fast track applicant' - whether appellant an unauthorised maritime arrival
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CLJ15 v Minister for Immigration and Border Protection [2018] FCA 1638
PRACTICE AND PROCEDURE - application for an extension of time to file an appeal under r 36.05 of the Federal Court Rules 2011 (Cth) - where proposed notice of appeal raises new grounds of appeal not raised before the primary judge - adequate explanation for delay - no particular prejudice to the respondent - merits of the appeal - whether Tribunal applied the wrong principles as to whether s 36(2B)(c) of the Migration Act 1958 (Cth) applied to widespread harm - whether Tribunal relied on s 36(2B)(c) by reference to findings about the nature of harm faced by a population of a city, rather than the population of a country - whether Tribunal constructively failed to exercise its jurisdiction by failing to consider corroborative evidence - extension of time granted - appeal dismissed
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Walsh, in the matter of LakeCoal Pty Ltd (Administrators appointed) (Receivers and managers appointed) [2018] FCA 1634
CORPORATIONS - external administration - application for extension of time to convene second meetings of creditors
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EOX17 v Commonwealth of Australia [2018] FCA 1656
PRACTICE AND PROCEDURE - where applicant's application for disability support pension under s 94 of the Social Security Act 1991 (Cth) refused by the respondent on the ground that her psychiatric impairment was not "permanent" - where applicant seeks damages pursuant to s 23 of the Public Governance, Performance and Accountability Act 2013 (Cth) and for breach of duty of care - where application to summarily dismiss proceeding - whether the application has no reasonable prospects of success and/or the Court lacks jurisdiction - where alleged duties inconsistent with mandatory criteria for grant of pension - where no common law duty of care arises with respect to exercise of powers under the Social Security Act 1991 (Cth) - where no intention to confer private right of action for damages under the Public Governance, Performance and Accountability Act 2013 (Cth)
PRACTICE AND PROCEDURE -where application determined under r 17.04 of the Federal Court Rules 2011 on the applicant failing to appear - where complex history of case management in light of applicant's distress at hearings - where requests to adjourn the matter and/or appear by telephone refused
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Hail Creek Coal Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 186
INDUSTRIAL LAW - where appellant employer appeals primary judge's construction of the enterprise agreement - whether reduction to employees' rostered hours of work results in a correlative reduction of their roster allowance under the enterprise agreement - consideration of principles applicable to the interpretation of enterprise agreements - application of principles - appeal dismissed
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CNU16 v Minister for Home Affairs [2018] FCA 1662
MIGRATION - review of a migration decision
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EAK16 v Minister for Home Affairs [2018] FCA 1663
MIGRATION - review of a migration decision
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Mentink v Secretary, Department of Social Services [2018] FCA 1660
ADMINISTRATIVE LAW - consideration of an application to set aside a decision of the Administrative Appeals Tribunal affirming a decision under review to raise and recover from the applicant an "age pension debt" - consideration of the questions of law to be addressed under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) - consideration of whether the Tribunal applied the correct test - consideration of whether any error in the formulation of the test constitutes a material error consideration of the power conferred upon the Federal Court of Australia to make findings of fact not inconsistent with the findings of the Tribunal consideration of the factors informing whether a finding of fact is to be made in all the circumstances
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Walsh, in the matter of LakeCoal Pty Ltd (administrators appointed) (receivers and managers appointed) (No 2) [2018] FCA 1635
CORPORATIONS - external administration - application to vary orders extending the convening period of the second meetings of creditors
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Ham v Tax Practitioners Board [2018] FCA 1652
TAXATION - tax agents - cancellation of registration - fit and proper person - tax agent knowingly concerned over lengthy period in equitable fraud when acting otherwise than as tax agent as account for client - extent to which this is a factor to be taken into account in determining whether person is a fit and proper person - observations upon role of and conduct befitting a tax agent and content of expressions "fit and proper person" and "good fame, integrity and character" - Tax Agent Services Act 2009 (Cth), ss 20-5, 20-15, 20-25, 20-50. Held - appeal dismissed.
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Rana v Department of Defence [2018] FCA 1642
HIGH COURT AND FEDERAL COURT - vexatious proceedings order sought against the applicant - originating application constitutes an abuse of process as an attempt to re-agitate historic grievances already determined against the applicant - applicant has frequently instituted vexatious proceedings in Australian courts and tribunals - originating application dismissed pursuant to s 37AO(2)(a) of the Federal Court of Australia Act 1976 (Cth) - order made pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) prohibiting the applicant from instituting proceedings of a particular type in the Court
HIGH COURT AND FEDERAL COURT - originating application claimed by respondent to be incompetent - respondent seeking order pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) - where order sought by respondent is a final order having practical effect of conferring a qualified immunity from suit in answer to the applicant's claims - respondent's invocation of s 37AO attracting jurisdiction of the Court whether or not the originating application is otherwise incompetent
PRACTICE AND PROCEDURE - application for disqualification of presiding judge on grounds of apprehended bias - application founded on both correct and incorrect asserted facts - correct asserted facts not giving rise to a reasonable apprehension of bias
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Mansfield, in the matter of Highrise Telecoms Pty Limited (administrators appointed) [2018] FCA 1654
CORPORATIONS - external administration - application for extension of time to convene second meeting of creditors - question raised as to the validity of the appointment of the administrators - allegation that defendants are continuing to trade the business of the company
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FRO18 v Minister for Home Affairs [2018] FCA 1657
MIGRATION - where application for judicial review of the Minister's decision under subs 501CA(4) of the Migration Act 1958 (Cth) not to revoke mandatory cancellation of the applicant's visa under s 501(3A) - where grounds of review fail to identify how the Minister is said to have fallen into error - where no reasonably arguable case of jurisdictional error - application dismissed
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Azaria Family Day Care Pty Ltd v Secretary, Department of Education and Training [2018] FCA 1640
ADMINISTRATIVE LAW - judicial review of a decision of a delegate of the respondent to cancel the applicant's approval as a provider of child care services under s 195H(1)(b) of A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
PRACTICE AND PROCEDURE - application for suspension of operation of decision - whether operation of Secretary's decision should be suspended - whether there are arguable grounds for review - prejudice to the applicant - whether interests of justice favour granting a suspension of the decision
COSTS - costs sought by applicant - no special circumstances - costs reserved
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First Solar (Australia) Pty Ltd, in the matter of Lyon Infrastructure Investments Pty Ltd v Lyon Infrastructure Investments Pty Ltd [2018] FCA 1666
CORPORATIONS - whether pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) the proceeding against the second and third defendants should be stayed pending determination of the arbitration between the plaintiff and the first defendant - application allowed.
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Winters v Fogarty [2018] FCA 1669
PRACTICE AND PROCEDURE - whether leave should be granted to file Further Amended Statement of Claim and Further Amended Reply - discussion of lack of adequate explanation, substantial delay, prejudice to respondent and case management considerations - application dismissed
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Al-Huda Pty Ltd v Secretary, Department of Education and Training [2018] FCA 1668
ADMINISTRATIVE LAW judicial review stay order staying a decision availability of internal review stay granted to permit internal review to be completed
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