CORPORATIONS – application for reappointment of liquidator – where company deregistered in error and reinstated by ASIC – application for validation of acts done by liquidator and company CORPORATIONS – liquidator’s powers – application for appointment of liquidator as receiver and manager of trust assets – where company in liquidation is disqualified from holding office as trustee and holds assets as a bare trustee

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2019/2019fca0362

MIGRATION – appeal from Federal Circuit Court of Australia – where primary judge held that the Tribunal erred in concluding that it did not have jurisdiction to deal with a child’s application – whether the primary judge erred in so concluding – appeal allowed

MIGRATION – appeal from Federal Circuit Court – dismissal of application for judicial review – refusal to grant safe haven visa – obligation to consider all claims squarely raised – legal unreasonableness – necessity to engage in an active intellectual process and give proper, genuine and realistic consideration – appeal dismissed

MIGRATION – appeal from decision of the Federal Circuit Court dismissing application for judicial review of decision of Administrative Appeals Tribunal to affirm decision not to grant appellant a protection visa – principles relevant to leave to raise new ground of appeal – whether Tribunal applied correct approach to “real chance" test – whether Tribunal engaged in flawed statistical analysis of risk to appellant in finding he could safely relocate – appeal upheld

COSTS – where applicants granted leave to bring derivative action under s 237 of the Corporations Act 2001 (Cth) – whether applicants’ costs be costs in the cause of the derivative proceedings

MIGRATION – appeal from orders of the Federal Circuit Court (FCC) dismissing the appellants’ application for judicial review of a decision by the Immigration Assessment Authority (IAA) under Part 7AA of the Migration Act 1958 (Cth) – where IAA affirmed delegate’s decision refusing to grant the appellants a safe haven visa – where the primary rule in Part 7AA is that the fast track review is conducted on the papers by reference only to the material provided by the Secretary under s 473CB(1) – whether the FCC ought to have inferred that the IAA did not consider whether the new information fell within the exception in s 473DD of the Act to the primary rule – where IAA did not refer in its statement of reasons to the new information in issue – whether the new information was of marginal relevance only – whether IAA’s error in failing to form a state of satisfaction on whether to consider the new information was material – appeal allowed

MIGRATION – application for extension of time within which to file a notice of appeal against a judgement of the Federal Circuit Court of Australia – evidence of religious conversion – whether adverse findings on credit illogical or lacked adequate evidentiary foundation – whether children should be regarded as making their own refugee and complementary protection claims – certificate of non-disclosure of evidence – no jurisdictional error – application dismissed

PRACTICE AND PROCEDURE – non-appearance – programming orders made for substantive appeal before the Full Court
Held: interlocutory application for separate trials dismissed

MIGRATION – application for extension of time within which to appeal against a judgment of the Federal Circuit Court of Australia – Tribunal’s misunderstanding of agent’s letter denied applicant opportunity to provide further evidence – failure to provide a real chance to present case – extension of time and appeal allowed

MIGRATION – appeal from Federal Circuit Court – whether Court erred in dismissing application for judicial review of decision of Immigration Assessment Authority – whether Authority misconstrued or mistook facts – whether Appellant denied procedural fairness – whether decision of Authority was unreasonable – where some grounds of review went to decision of Department and not Authority

MIGRATION – appeal from orders of the Federal Circuit Court dismissing application for judicial review – where reasons of ex tempore judgment not published at time notice of appeal filed – where no identifiable ground of appeal in notice of appeal – held: appeal dismissed

PRACTICE AND PROCEDURE – application for an extension of time – lack of merit in proposed grounds of review – extension of time refused
MIGRATION – whether weight given to risk of re-offending prevails over best interests of the children
ADMINISTRATIVE LAW – need for path of reasoning to be transparent – reasoning exposes weight given to competing interests – decision not unreasonable

MIGRATION – appeal from judgment of Federal Circuit Court affirming decision of Immigration Assessment Authority (IAA) to refuse protection visa – where delegate assured the appellant during interview that discrepancies in the appellant’s statements were “not major" – where delegate’s assessment of demeanour at the interview was part of the reason she accepted the appellant had been sexually assaulted and tortured – where subsequently the IAA relied upon inconsistencies in a statutory declaration provided by the appellant and the record of interview to conclude that the sexual assaults did not take place – whether IAA erred by unreasonably failing to consider whether to exercise discretion under s 473DC of the Migration Act 1958 (Cth)
ADMINISTRATIVE LAW – the relationship between procedural fairness and legal unreasonableness – materiality of error in giving rise to jurisdictional error

INDUSTRIAL LAW – whether Respondent misrepresented employment as independent contracting arrangement – whether Respondent failed to make payments for accrued but untaken annual leave – whether Respondent failed to make payments with respect to accrued long service leave – whether Applicant was an employee or independent contractor at common law – consideration of general principles when determining whether a person is an employee or independent contractor – whether Applicant a “worker" for the purposes of the Long Service Leave Act 1955 (NSW) SUPERANNUATION – where Respondent did not make superannuation contributions on behalf of Applicant – whether Respondent required to make superannuation contributions – whether the Applicant an employee for the purposes of the Superannuation Guarantee (Administration) Act 1992 (Cth) – consideration of wider statutory definition of employee

MIGRATION – appeal brought out of time – extension of time granted – appeal from orders of Federal Circuit Court of Australia dismissing application for judicial review of Tribunal decision – claim to fear harm – unreasonableness – whether treatment of material regarding psychological harm and mental health issues was arbitrary – decision within scope of authority conferred on decision-maker – appeal dismissed

PRACTICE AND PROCEDURE – application of slip rule

CORPORATIONS – Order sought for leave under s 500(2) of the Corporations Act 2001 (Cth) to proceed with a claim against company in voluntary liquidation – Whether leave should be granted to bring claim.

MIGRATION — where a delegate of the Minister for Immigration and Border Protection refused to grant the appellant a Safe Haven Enterprise visa — where the Immigration Assessment Authority affirmed the decision of the delegate — where Authority not satisfied that the appellant would face a real chance of harm by reason of having provided assistance to Syrian refugees in Lebanon — where the Federal Circuit Court of Australia dismissed the appellant’s application for judicial review of the decision of the Authority
PRACTICE AND PROCEDURE — application for leave to raise new grounds of appeal not raised before the Federal Circuit Court — consideration of the principles governing an application for leave to raise new grounds — where new ground relates to allegation of apprehended bias and is fundamental to the proper execution of the procedure laid down in the Migration Act 1958 (Cth) ADMINISTRATIVE LAW — whether Federal Circuit Court erred in failing to find that the decision of the Authority was affected by jurisdictional error by reason of apprehended bias — where the delegate had before him information from Victorian police about an investigation regarding the appellant’s possible involvement in an offence of attempting to pervert the course of justice — where the Authority had before it the same information by reason of s 473CB of the Migration Act 1958 (Cth) — where the Authority made no reference to the information in its decision — consideration of the principles governing apprehended bias in the context of administrative proceedings — whether a fair-minded lay observer, acting reasonably, might apprehend that the Authority might have been affected by the information — whether it is necessary for information to be highly prejudicial in order for apprehended bias to arise, or whether it is sufficient that the information is adverse or prejudicial — where the first respondent conceded that the information was irrelevant — where the credit of the appellant was a key consideration

CORPORATIONS – liquidation proceedings – application under s 477(2B) of the Corporations Act 2001 (Cth) for approval of a deed of settlement to be entered into by liquidator – relevant principles – whether entry into deed of settlement commercially appropriate and in best interests of creditors – application granted
PRACTICE AND PROCEDURE – application for a suppression or non-publication order pursuant to ss 37AF and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) – whether order necessary to prevent prejudice to the proper administration of justice – where information is of a commercially sensitive nature – application granted