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Lastest Judgments from the Federal Court

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    MIGRATION - protection visa - review by Immigration Assessment Authority - Authority receiving new information concerning current state of visa applicant's mental health - visa applicant suffering mental health issues arising from physical and sexual abuse suffered in visa applicant's home country - visa applicant receiving ongoing treatment in Australia - whether a claim squarely arose on material before Authority under the complementary protection criteria in relation to the visa applicant's mental health - Authority rejecting claim founded on mental health without active intellectual engagement - whether court should find the claim bound to fail in any event - appeal allowed

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    PRACTICE AND PROCEDURE - security for costs sought by two respondents from corporate applicant - applicant voluntarily providing security in significant amounts by way of irrevocable bank guarantees - whether additional security should be ordered - whether there is reason to believe the applicant will be unable to pay the costs of the respondents if the respondents are successful in their defence - whether security should be ordered in respect of past costs already subject to a costs order - whether respondents' delay in bringing the application is productive of unfairness - additional security ordered

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    MIGRATION - where the applicant, who is a minor, arrived in Australia with her family as an unauthorised maritime arrival and was sent to the Republic of Nauru - where the applicant sought various relief against the Minister for Home Affairs and the Commonwealth (the respondents), including damages for an alleged breach of duty of care and an interlocutory order that the Minister take all steps to ensure that the applicant and her family are brought to Australia so that the applicant can immediately access necessary medical treatment and care - where the applicant and her family were subsequently brought to Australia pursuant to undertakings by the respondents - where the respondents raised the issue of whether the proceeding is barred by ss 494AB(1)(a) or (ca) of the Migration Act 1958 (Cth) (the Issue) PRACTICE AND PROCEUDRE - where the Court ordered that the Issue be determined as a separate question pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) - whether the Issue remains appropriate to be determined as a separate question in light of subsequent developments, including the content of pleadings, the issues which remain in dispute and the limited ambit of the statement of agreed facts filed by the parties

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    PRACTICE AND PROCEDURE - application for relief from previous discovery orders - whether discovery orders oppressive and disproportionate to costs incurred to review - where documents held in China potentially subject to Cybersecurity Law and State Secrets Law

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    PRACTICE AND PROCEDURE - application for additional discovery order - where respondents seek to adduce further evidence

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    COSTS - application by the Appellant under s 570 of the Fair Work Act 2009 (Cth) for an award of costs - Appellant's claim that the Respondent's unreasonable conduct caused her to incur costs - Respondent did not comply with the Court's order regarding the filing of submissions and did not appear at the hearing - no adequate explanation - Respondent a legal practitioner - whether Respondent's unreasonable conduct caused the Appellant to incur additional costs - application dismissed.

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    MIGRATION - application under r 36.05 of the Federal Court Rules 2011 (Cth) for an extension of time in which to appeal from a decision of the Federal Circuit Court of Australia - where application filed five days out of time - where applicant filed draft notice of appeal containing a single ground of appeal which was not raised in the court below - where insufficient prospect of an appeal being successful to warrant exercise of discretion in favour of extending time

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    MIGRATION - application for judicial review of a decision of the Federal Circuit Court of Australia - fast track reviewable decision of the Immigration Assessment Authority - whether Authority erred in its application of s 473DD of the Migration Act 1958 (Cth) by concluding there were "exceptional circumstances" justifying it considering updated country information - appeal dismissed but not for the reasons given by the Federal Circuit Court

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    MIGRATION - appeal from judgment of Federal Circuit Court - failure to appear by appellant - appeal dismissed

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    PRACTICE AND PROCEDURE - application for review of registrar's decision to dismiss application to set aside statutory demand - application dismissed as futile, the time for compliance with statutory demand having expired and there being no power to extend time

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    MIGRATION - application for review of decision under s 501CA(4) of the Migration Act 1948 (Cth) not to revoke cancellation decision made under s 501(3A) - where applicant failed the character test for the purposes of s 501CA(4)(b)(i) due to substantial criminal record - where Minister not satisfied there was another reason for revoking cancellation decision under s 501CA(4)(b)(ii) - whether Minister's finding that applicant posed a risk of harm to the Australian community through reoffending was illogical and legally unreasonable MIGRATION - where a consequence of the Minister's decision under s 501CA(4) was that the applicant would be barred from returning to Australia once removed - whether Minister erred in failing to consider that consequence - whether consequence identified was an implied mandatory relevant consideration - whether consequence was a "direct and immediate" statutorily prescribed consequence

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    PRACTICE AND PROCEDURE - discovery - in Judicial Review Proceedings - no foundation shown for relief

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    MIGRATION - appeal from Federal Circuit Court - application for judicial review of a decision of the Immigration Assessment Authority - duty of Immigration Assessment Authority upon review - whether decision-maker failed to consider a claim made by the appellant -absence in a statement of reasons of express consideration of a particular claim - inferences to be drawn from failure to advert to particular contention and evidence in reasons - claims considered - appeal dismissed

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    MIGRATION - appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority not to grant a visa - where Authority found the appellant did not have a real or imputed Liberation Tigers of Tamil Eelam (LTTE) profile - where Authority stated that information indicated that human rights violations involved those with real or perceived links to the LTTE - whether Authority had a "real doubt" about its conclusion- whether Authority erred in failing to consider the possibility that it was "wrong"

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    MIGRATION - application for judicial review of orders of the Federal Circuit Court of Australia (FCCA) which refused to extend time under s 477 of the Migration Act 1958 (Cth) (the Act) - whether the primary judge fell into jurisdictional error by adopting an unduly narrow approach in applying s 477(2) of the Act - application allowed and matter remitted to the FCCA for determination according to law

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    PRACTICE AND PROCEDURE - application to strike out Statement of Claim under r 16.21 of the Federal Court Rules 2011 (the FCR) - claim that the defamatory imputations are pleaded as "particulars" rather than "substantive averments" - pleading sufficiently discloses the case that the Respondent must meet at trial and discloses a reasonable cause of action - application dismissed. PRACTICE AND PROCEDURE - application to strike out Statement of Claim under r 16.21(1) of the FCR - pleading states that further particulars relating to the extent of publication and republication will be provided after discovery and interrogatories - application to strike out because the Applicant has not yet made an application for discovery or for leave to interrogate - application dismissed. PRACTICE AND PROCEDURE - application for stay or dismissal of proceedings due to a likely breach of s 16(1)(3) of the Parliamentary Privileges Act 1987 (Cth) (the PP Act) - no breach of the PP Act involved in the Court hearing and determining whether words attributed by the Respondent to the Applicant formed part of "proceedings in Parliament".

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    MIGRATION - application for judicial review under s 39B of the Judiciary Act 1903 (Cth) of a judgment and orders of the Federal Circuit Court of Australia refusing the applicant's application for an extension of time under s 477 of the Migration Act 1958 (Cth) - whether the primary judge committed jurisdictional error by not properly considering the proposed grounds of review, in upholding the finding of the Immigration Assessment Authority (IAA) that the applicant did not raise a claim for protection (the claim) before the delegate and the claim was therefore "new information" under ss 473DC and 473DD of the Migration Act 1958 (Cth) - whether the primary judge committed jurisdictional error because his assessment that the proposed grounds did not have arguable merit was unreasonable and inconsistent with established legal principles - whether it is a mandatory relevant consideration for the primary judge to assess the strength of the proposed grounds of review in the context of a s 477 application - Held: application dismissed, with costs

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    MIGRATION - appeal from a judgment and orders of the Federal Circuit Court of Australia - whether the primary judge erred by failing to consider the alleged legal and factual errors contained in the AAT's reasons for decision, including an alleged misconstruction of s 36(2A) of the Migration Act 1958 (Cth) - appeal dismissed, with costs

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    MIGRATION - appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal - Held: no appellable error on the part of the primary judge - existence of certificate under s 438 of the Migration Act 1958 (Cth) did not establish jurisdictional error on the part of the Tribunal as immaterial to its substantive and procedural decision-making

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    MIGRATION - application for an extension of time for judicial review of a decision of the Minister not to revoke a visa cancellation - where applicant's visa cancelled on character grounds due to his criminal record - whether merits of proposed application for judicial review are sufficient to justify extension of time

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