MIGRATION – judicial review of a decision not to revoke an earlier visa cancellation decision pursuant to s 501CA(4) of the Migration Act 1958 (Cth) – whether the applicant was afforded procedural fairness – whether there was error because the Assistant Minister decision-maker did not consider the most up to date information – application dismissed.

MIGRATION – applications for extension of time and application for leave to appeal from the Federal Circuit Court dismissing an application for judicial review of the decision of the Immigration Assessment Authority (the IAA) refusing the Applicant’s application for a Safe Haven Enterprise Visa – whether and to what extent the Applicant would be prejudiced if extension of time was refused – whether the IAA should have considered a claim based on apostasy – whether it was legally unreasonable for the IAA not to have interviewed the Applicant pursuant to s 473DC of the Migration Act 1958 (Cth) before rejecting a claim which the Minister’s delegate accepted in part on the basis of the Applicant’s demeanour – whether an independent evidentiary basis existed for rejecting kidnapping claim.
Held: extension of time granted – appeal allowed on the basis of the second ground.

PRACTICE AND PROCEDURE – interlocutory application by interested parties to the proceeding for orders pursuant to s 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth) – application under rule 2.32 of the Federal Court Rules 2011 (Cth) that evidence filed in support of application be declared confidential – application for prohibition of the publication of information tending to identity interested parties – consideration of open justice principles – application allowed in part

MIGRATION – protection visa – appeal from a decision of the Federal Circuit Court of Australia – application for review of a decision to refuse a protection visa – whether the Administrative Appeals Tribunal failed to take account of relevant considerations – whether the Tribunal was obliged to consider submissions and evidence advanced in a previously constituted tribunal – whether the Tribunal failed to take into account the appellant’s alleged impecuniosity – whether the appellant’s liability for payment for his removal from Australia was a relevant consideration – legal unreasonableness – appeal dismissed

INDUSTRIAL LAW – civil penalty – where employer breached s 323 of the Fair Work Act 2009 (Cth) – whether penalty should be imposed

MIGRATION – appeal from decision of the Federal Circuit Court of Australia – where primary judge dismissed judicial review application of decision of Administrative Appeals Tribunal (AAT) – whether AAT had an obligation to call witnesses under s 426 of the Migration Act 1958 (Cth) – whether AAT acted unreasonably in not calling witnesses – whether not calling the witnesses corroborated the appellant’s evidence such that adverse credibility finding was legally unreasonable – appeal dismissed

NATIVE TITLE – Determination of separate questions under r 30.01 of the Federal Court Rules 2011 (Cth) – whether any native title that did exist has been extinguished – where the questions relate to the tenure status of two areas of land located in Western Australia – whether a reserve was validly created and vested – whether a special lease was validly granted

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal not to revoke the cancellation of the applicant’s permanent resident visa – jurisdictional error – whether the Tribunal erred in its application of the principle that a person seeking to have revoked the mandatory cancellation of a visa on character grounds arising from a criminal conviction and sentence cannot rely upon “another reason" for that revocation that is factually inconsistent with the basis for the conviction or sentence, following HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 – application dismissed

TAXATION – director penalties – application for review of decision of delegate of Commissioner of Taxation under Administrative Decisions (Judicial Review) Act 1977 (Cth) – where delegate decided that defence in s 269-35(2) of Sched 1 to the Taxation Administration Act 1953 (Cth) not made out – where no reference in reasons to s 269-35(3) as would inform analysis of what constituted “reasonable steps" -Canty v Deputy Commissioner of Taxation [2005] NSWCA 84; 63 NSWLR 152 – case distinguishable on the facts – not to be substituted for the words of the statute – decision set aside TAXATION – director penalties – application for review of decision of delegate of Commissioner of Taxation under Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether remittal to Commissioner futile – not inevitable that relief would be refused – remittal not futile due to concurrent proceedings in Supreme Court of Queensland – matter remitted to Commissioner for determination according to law

PRACTICE AND PROCEDURE – scheme for the distribution of funds held on trust to investors affected by the operation of a “Ponzi" scheme – transfer of funds to India to be administered by a committee constituted by the Securities and Exchange Board of India (SEBI) – undertaking given by Counsel and secured by a conditional bond
COSTS – power to award costs to an intervener

MIGRATION – consideration of an appeal from orders of the primary judge on the footing that the primary judge erred in failing to identify contended jurisdictional error on the part of the Administrative Appeals Tribunal having regard to contentions that the Tribunal failed to comply with obligations arising under s 424A and s 424AA of the Migration Act 1958 (Cth) – consideration of the observations in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 18 and Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 – consideration of the question of whether the primary judge erred in failing to recognise that the Tribunal reached a contended illogical decision – consideration of Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] [135] and the application of those principles to the facts found by the Tribunal

https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca0821

MIGRATION – consideration of an appeal from orders of the primary judge on the footing that the primary judge erred in failing to identify contended jurisdictional error on the part of the Immigration Assessment Authority having regard to contentions that the Authority failed to identify integers of the claim, failed to address the evidence of the appellant, failed to comply with procedure required under the Migration Act 1958 (Cth), failed to have regard to the “current circumstances” in the country to which the appellant would return should his claims be rejected, failed to find that the appellant held a well founded fear of a real risk of serious harm for a Convention reason and failed to find in favour of the appellant on the complementary protection claim

MIGRATION – whether primary judge’s decision was affected by actual or apprehended bias – whether evidence of primary judge’s previous decisions relevant on tendency or coincidence basis – whether primary judge had failed to give the appellant a hearing – whether primary judge erred in rejecting claims of Tribunal’s jurisdictional error – whether primary judge denied appellant procedural fairness – whether primary judge erred by accepting that the Tribunal had considered the appellant’s circumstances in their totality – whether primary judge failed to provide adequate reasons – whether primary judge constructively failed to exercise jurisdiction

MIGRATION – review of a decision of the Administrative Appeals Tribunal to affirm a decision of a delegate of the Minister not to revoke the cancellation of the applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) – whether the Tribunal erred by failing to act on correct legal principles in applying Ministerial Direction 79 – no error – application dismissed.

MIGRATION – application for judicial review of decision of the Administrative Appeals Tribunal – where Tribunal affirmed decision of delegate to refuse to grant applicant’s protection visa – where conceded that applicant convicted by final judgment of serious crime – whether Tribunal erred in failing to consider mitigating factors in assessment of whether applicant was a danger to Australian community – whether Tribunal failed to identify rational or probative basis for finding that applicant posed risk to Australian community – application dismissed

MIGRATION – appeal from the Federal Circuit Court of Australia – review of decision of Administrative Appeals Tribunal – refusal of Temporary Graduate visa – finding by primary judge that denial of procedural fairness would not have affected outcome – where applicant applied for a visa in the wrong stream – whether Tribunal has the power to grant a visa from a different stream – appeal dismissed

CRIMINAL LAW – application for the making of an Interim Control Order pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) – whether the obligations are reasonably necessary and reasonably appropriate and adapted – whether the Respondent should be subject to twice weekly reporting requirements – whether requirement to notify Australian Federal Police with respect to employment was unreasonably onerous – whether prohibiting association with certain individual was reasonable – consideration of the use of technology platforms and internet service – application granted.

CORPORATIONS – application to reinstate the registration of a company pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) – whether the State of Western Australia is a ‘person aggrieved’ – whether it is just that the company be reinstated – where the State of Western Australia has a deemed right of subrogation in the company’s name – where the subrogated rights are rendered obsolete by the company’s deregistration

MIGRATION – consideration of application for protection visa – whether delay unreasonable
PRACTICE AND PROCEDURE – privative clause decision – jurisdiction
PRACTICE AND PROCEDURE – mandamus – discretionary refusal of relief
PRACTICE AND PROCEDURE – submission that an earlier decision is plainly wrong and should not be followed – principles to be applied