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Lastest Judgments from the Federal Court

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    MIGRATION - appeal from Federal Circuit Court - refusal to grant Protection Visa - where appellant was a victim of sexual abuse and assault as a child in Iraq - where appellant claimed to fear harm from general community and his family as person homosexually abused or as an imputed homosexual - where Authority found that abuse would not become known to the community or appellant's family because appellant would not disclose abuse - whether Authority erred by failing to ask whether appellant would not disclose abuse because of the threat of serious harm - appeal allowed

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    BANKRUPTCY - application for annulment of bankruptcy - allegation sequestration order ought not have been made because no valid legal assignment of debt - application for annulment refused by primary judge - discussion of validity of assignment of debts and going behind a judgment in the context of an annulment application EQUITY - assignment of choses in action at law and in equity - notice given under s 134 of the Property Law Act 1958 (Vic) and assignment of chose in action effective at law but consideration of principle that assignment ineffective at law is effective in equity if for value EVIDENCE - late service and inadmissibility of evidence of affidavit evidence seeking to prove notice of assignment of debt and of hearing at which sequestration order was made - document providing notice accepted by primary judge has having been received by appellant - discussion of principled approach as to use of presumptions as to receipt of documents - acceptance of testimony of affiant when the affidavit was not before the Court - error not material -appeal dismissed

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    MIGRATION - visas - notice of - methods of notice - email - deemed receipt - definition of "transmitting" - consideration of "transmitting" in s 474C of the Migration Act 1958 (Cth) and reg 2.55 of the Migration Regulations 1994 (Cth) MIGRATION - Administrative Appeals Tribunal's power to extend the time for the making of an application for review of a Part 5-reviewable decision - consideration of Pt IV of the Administrative Appeals Tribunal Act 1975 (Cth), specifically ss 24Z, 25 and 29 - consideration of Brown v Minister for Home Affairs [2018] FCA 1643 and Brown v Minister for Home Affairs (No 2) [2018] FCA 1787 Held: appeal dismissed

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    INDUSTRIAL LAW - amalgamation between the Maritime Union of Australia (MUA), the Textile, Clothing and Footwear Union of Australia and the Construction, Forestry, Mining and Energy Union (CFMEU) to form the Construction, Forestry, Maritime, Mining and Energy Union - where s 73(2) of the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act) required the Fair Work Commission (Commission) to fix an amalgamation day if it is satisfied about each of the matters specified in s 73(2), including that there are no proceedings "other than civil proceedings" pending against any of the existing organisations concerned in the amalgamation (s 73(2)(c)) - where at all relevant times, civil penalty proceedings were pending against the CFMEU and MUA in respect of alleged contraventions of civil remedy provisions in the Fair Work Act 2009 (Cth) and other Commonwealth statutes - whether the expression "other than civil proceedings" in s 73(2)(c) of the RO Act has a meaning which excludes civil penalty proceedings, with the consequence that the Commission could not have had the requisite satisfaction under s 73(2)(c) and therefore had no power to fix an amalgamation day ADMINISTRATIVE LAW - where the applicant sought writs of certiorari quashing the decisions of both the Deputy President of the Fair Work Commission and the Full Bench's decision on appeal - whether the Deputy President's decision is amenable to judicial review in circumstances where it has been the subject of an appeal decision by the Full Bench

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    MIGRATION - whether Tribunal applied wrong part of Ministerial direction - whether erroneous references in Tribunal's reasons mere typographical errors - Tribunal applied wrong part of Ministerial direction - Tribunal's consideration miscarried due to material differences in parts of Ministerial direction - no power to amend reasons to change erroneous references - Tribunal's consideration miscarried by reference to speculative possibilities of other avenues being open to the applicant to avoid returning to his country of origin - application allowed

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    INDUSTRIAL LAW - contraventions of the Fair Work (Registered Organisations) Act 2009 (Cth) - assessment of penalties - where Australian Nursing and Midwifery Federation (ANMF) admitted contraventions of ss 253(1), 265(5) and 266(1) - where Registered Organisations Commissioner and ANMF agreed appropriate penalty - course of conduct - totality principle - where second respondent found to have contravened s 285(1) - where maximum penalties increased over relevant period - need for specific and general deterrence

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    MIGRATION - appeal from the Federal Circuit Court of Australia - where there was a s 438 certificate issued - where the material the subject of the certificate was disclosed in an FOI release - where the primary judge found jurisdictional error in relation to the Tribunal's non-disclosure of the certificate MIGRATION - s 438 of the Migration Act 1958 (Cth) - consideration of SZMTA - whether non-disclosure of the certificate was a denial of procedural fairness - where current authority not 'plainly wrong' MIGRATION - s 424A of the Migration Act - consideration of SZBYR - whether non-disclosure was contrary to s 424A - where 'information' is distinct from 'state of mind' MIGRATION - whether possession of undisclosed information might cause a fair minded and properly informed observer to conclude the Tribunal is unable to be impartial or bring to bear an impartial mind - where undisclosed information was contended to impugn the first respondent's credibility as it was inconsistent with claims made

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    TAXATION - director penalty notice (DPN) issued in respect of outstanding pay as you go withholding (PAYGW) liabilities - proceedings commenced claiming recovery of some of the amounts the subject of the DPN - directors' parallel liabilities PRACTICE AND PROCEDURE - application for a permanent stay of the proceeding - application filed shortly before the final hearing - whether the proceeding constituted an abuse of process where previous proceeding had entered the District Court's Inactive Cases List - whether the commencement of the second action was unjust - where the decision not to prosecute the previous proceeding is not open to criticism Held: application dismissed

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    TAXATION - liability of a director for amounts of PAYG withholding - director penalty notices issued - Div 269 of Sch 1 of the Taxation Administration Act 1953 (Cth) (TAA) - allocation of payments pursuant to the ATO's PS LA 2011/20 - whether the relevant debt was paid such that the director's parallel liability was also discharged - whether the allocation decisions gave rise to jurisdictional error - discretion afforded pursuant to s 8AAZLE of the TAA Held: judgment in favour of the Commissioner

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    EXTRADITION - application for review under s 21 of the Extradition Act 1988 (Cth) and for judicial review under s 39B of the Judiciary Act 1903 (Cth) of determination that applicant eligible for surrender to the United States - whether Court satisfied that requirements of ss 19(1) and (2) of the Extradition Act 1988 (Cth) established in relation to applicant - whether the applicant had established an extradition objection - application dismissed

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    MIGRATION - appeal from Federal Circuit Court - whether Court erred in dismissing appeal from Administrative Appeals Tribunal - whether Tribunal considered consequences of return to India

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    MIGRATION - application for leave to appeal from Federal Circuit Court - whether Court erred in summarily dismissing appeal from Administrative Appeals Tribunal - where Applicant applied for medical treatment visa outside prescribed time limit

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    MIGRATION - amended application for judicial review of a decision of the Assistant Minister for Home Affairs under s 501CA(4) of the Migration Act 1958 (Cth) (Act) to not revoke the cancellation of the applicant's visa - where the Assistant Minister determined that it was unnecessary in making his decision under s 501CA(4) to consider whether non-refoulement obligations were owed to the applicant - where the Assistant Minister determined that as a consequence of Direction No 75, it was highly likely that non-refoulement obligations will be considered by a delegate of the Minister upon the applicant making a subsequent protection visa application - where the Assistant Minister acknowledged the possibility that the Minister may personally determine any subsequent protection application, in which case the Minister would not be bound by Direction No 75 - whether the Assistant Minister denied the applicant procedural fairness, failed to exercise his jurisdiction or failed to carry out the statutory task required by s 501CA(4) - Held: amended application dismissed, with costs

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    MIGRATION - application for a sponsored visa - subclass 487 - sponsor withdrew before the delegate of the Minister made their decision - visa denied - application for extension of time in which to file notice of appeal - application for leave to appeal - no particularisation of grounds - Tribunal did not have discretion to bypass requirements of cl 487.225 of the Migration Regulations 1994 (Cth) - application dismissed

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    PRACTICE AND PROCEDURE - application for disqualification of legal representatives - whether proper basis for application - no proper basis - application dismissed.

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    MIGRATION - mandatory cancellation of absorbed person visa under s 501(3A) of the Migration Act 1958 (Cth) - decision not to revoke cancellation under s 501CA(4) of the Migration Act 1958 (Cth) - central finding of fact without any underlying material to found it - jurisdictional error - recognition of importance of family and community for Indigenous Australians - matter remitted to the Minister

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    MIGRATION - appeal from an order made by the Federal Circuit Court of Australia - where appellant's application for a Protection (Class SA) visa (Protection visa) was refused - where appellant applied for a review of the delegate's decision by the Administrative Appeals Tribunal - where Tribunal affirmed the decision not to grant the appellant a Protection visa - where appellant lodged an application for judicial review of the Tribunal's decision - where primary judge rejected the appellant's four grounds of appeal - where, on appeal to this Court, the appellant raised two grounds of appeal - where first ground of appeal not raised before the primary judge - where second ground of appeal lacks particularity - whether any error in the reasons for judgment of the primary judge - whether any error in the decision of the Tribunal - whether appeal ought to be dismissed with costs PRACTICE AND PROCEDURE - where hearing of appeal in this Court adjourned so that a barrister might appear on the appellant's behalf - where appellant sought further adjournment of appeal so as to allow a lawyer to assist him - where appellant had not progressed the matter in any way since the previous adjournment - where no reasonable prospect that the appellant would progress the matter within an acceptable period if a further adjournment were granted - where further adjournment refused

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    CORPORATIONS - liquidators' remuneration - consideration of amendments introduced by the Insolvency Law Reform Act 2016 (Cth) - principles relevant to the assessment of liquidators' remuneration - remuneration sought reasonable

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