60 hca definition

60 hca definition
I know you had to read my little story to find out what it is but trust me it’s worth the wait.

How to Get in Shape Fast

Changing your body composition takes time and commitment to healthy lifestyle habits. It's difficult to make significant changes in body composition in a short amount of time. However, over just a few weeks of exercising and eating a nutritious diet, you may be able to see some positive benefits in your weight, body composition and overall strength, and with perseverance you will feel more energy, satisfaction and an improved sense of well being. Start your journey to get in shape by including regular aerobic exercise, strength training and flexibility training. In addition, be sure to support your new exercise routine with a well-balanced diet to fuel your new workouts and get your body in shape.

Steps Edit

Part One of Three:

Including Cardiovascular Exercise Edit

Special Leave Applications to the High Court

Parties wishing to appeal from a judgment of the Federal Court to the High Court of Australia, are required to file a special leave application with the High Court.

This page updates the status of any such applications.

Currency/completeness of information: Updating of this page is dependant upon information being supplied to the Court; the Court cannot guarantee that the information is complete, up-to-date, or accurate. Refer to our website disclaimer.

In order of the date of the Federal Court judgment.

2017 delivered judgments

MIGRATION – protection visa –self-represented appellant – one ground for judicial review raised on originating application in proceedings below – additional grounds of review raised in the course of submissions and determined by primary judge – no leave required to rely upon grounds of appeal going to issues in fact considered and determined by primary judge – leave required to raise yet further grounds – proposed new grounds not supported by submissions, impermissibly broad …

MIGRATION - appeal from a decision of the Federal Circuit Court of Australia - where appellant alleges denial of procedural fairness by Administrative Appeals Tribunal (Tribunal) - where delay of 22 months between Tribunal hearing and making of decision - where Tribunal held a second hearing - whether delay occasioned procedural unfairness to the appellant - whether the Tribunal committed jurisdictional error - appeal dismissed

MIGRATION - appeal from Federal Circuit Court of Australia - application for Protection (Class XA) visa - whether jurisdictional error by Refugee Review Tribunal - where primary judge dismissed application for judicial review - appeal dismissed

PRACTICE AND PROCEDURE - appeal from Federal Circuit Court - failure to identify appellable error - grounds directed to decision of Tribunal and not Federal Circuit Court - role of appellate court in identifying appellable error - duty of the Court with respect to self-represented appellants - approach to be adopted to resolve appeal ADMINISTRATIVE LAW - procedural fairness - opportunity to be heard - alleged deficiencies in translation services MIGRATION - application for…

MIGRATION - protection visa - adverse credibility findings by Tribunal - findings not affected by jurisdictional error

MIGRATION - International Treaty Obligation Assessment - where the Department conducted an assessment following the publication of personal information in the 2014 "data breach" - no error shown in the reasons for assessment or the decision of the primary judge.

MIGRATION - visa application denied by Minister’s delegate, and application for review of decision by Refugee Review Tribunal not properly received - whether Refugee Review Tribunal and Federal Circuit Court of Australia right to hold that application was not received within time - whether Refugee Review Tribunal and Federal Circuit Court of Australia right to hold that application was not received in the prescribed form

MIGRATION - application to review decision of Administrative Appeals Tribunal - application for protection visa on the basis of ss 36(2)(aa) and 36(2)(c) of the Migration Act 1958 (Cth) after a previous unsuccessful application on the basis of s 36(2)(a) - no jurisdictional error

Bromberg, Griffiths and Bromwich JJ ( 347 ALR 78 )

HUMAN RIGHTS - disability discrimination - Disability Discrimination Act 1992 (Cth) ("DDA"), ss 5 and 6 - where the appellant was refused admission to the Australasian College of Dermatologists having failed to meet the College's entrance examination condition - where the appellant suffered from a disability described as a specific phobia of the College's examination - where the appellant claimed the refusal to be simultaneously direct and indirect discrimination - whether…

MIGRATION - appeal from Federal Circuit Court - whether denial of procedural fairness - whether failure to provide adequate reasons - whether Tribunal failed to discharge statutory functions by not providing adequate translator - whether leave granted to argue grounds not raised before Federal Circuit Court

PRACTICE AND PROCEDURE - interlocutory application for security for costs - s 56 Federal Court of Australia Act 1976 (Cth) and r 36.09 Federal Court Rules 2011 (Cth) - relevant principles when security for costs sought in appeal - poor prospects of success in appeal - appellant of limited financial means - outstanding costs debt in court below

MIGRATION - appeal from Federal Circuit Court of Australia - whether primary judge erred in failing to find that the tribunal decision was affected by actual or apprehended bias - where no evidence of actual or apprehended bias - whether primary judge erred in failing to find that the appellant was denied procedural fairness -where no appealable error - appeal dismissed

MIGRATION - appeal from application for judicial review of refusal to grant a Temporary Graduate (Class VC, Subclass 485) visa - appellant failed to satisfy required criterion

MIGRATION - appeal from Federal Circuit Court of Australia - application for Protection (Class XA) visa - a delegate of the Minister refused application for protection visa - procedural fairness obligations of the Federal Circuit Court - court not permitted to make an applicant's case or to act as inquisitor - Federal Circuit Court dealt with each ground of review without appellate error - no denial of procedural fairness - appeal dismissed PRACTICE AND PROCEDURE - address…

INDUSTRIAL LAW - non-payment of wages and other entitlements INDUSTRIAL LAW - accessorial liability - meaning of "involved in" PRACTICE AND PROCEDURE - application for leave to withdraw an admission in pleadings - leave refused PRACTICE AND PROCEDURE - order for payment of costs in a fixed sum - denial of procedural fairness - order lacking a rational evidential foundation - based upon unverified estimates - order set aside CONSTITUTIONAL LAW - constitutional corporations -…

MIGRATION – appeal from decision of the Federal Circuit Court of Australia – whether adverse credibility findings open – whether appellant afforded procedural fairness – whether Federal Circuit Court erred by not finding that Tribunal’s decision was unsupported by evidence – whether Tribunal’s decision affected by bias – whether open to Tribunal to have regard to country information – appeal dismissed

MIGRATION - appeal from a decision of the Federal Circuit Court - whether appellant lodged application for review to Tribunal within time limit set by s 347(1)(b) of the Migration Act 1958 (Cth) - where appellant notified of the delegate's decision by notice sent to authorised recipient's email address - where filing of application with the Tribunal within the time limit a prerequisite for the Tribunal's jurisdiction - whether correspondence giving notice of change of…

MIGRATION - appeal from a decision of the Federal Circuit Court - where delegate of Minister refused an application for a protection visa - where appellant relied on a decision subsequently overturned by the High Court Held: appeal dismissed

MIGRATION - application for Protection (Class XA) visa by minor child - dependant applications by parents and sibling - whether parents and sibling prevented from relying on same criterion considered in previous applications - whether Tribunal acted unreasonably, failed to consider all aspects of alleged persecution or failed to consider full circumstances of the claims - appeal dismissed

MIGRATION - judicial review of refusal to grant a Protection (Class XA) visa - Appeal from the Federal Circuit Court - where alleged risk of persecution or significant harm in Lebanon - no appealable error established.

MIGRATION - application for Protection (Class XA) visas - whether primary judge failed to consider grounds of review - whether Tribunal complied with requirements of Migration Act 1958 (Cth) ss 424, 424AA and 424A - whether Tribunal failed to consider documentary evidence and oral submissions - appeal dismissed COSTS - whether primary judge erred by making lump sum costs order without receiving itemised bills

MIGRATION - application for Protection (Class XA) visas - whether Tribunal acted unreasonably or made errors - definition of well-founded fear of persecution - appeal dismissed

Perram, Robertson and Wigney JJ

MIGRATION - appeal from Federal Circuit Court of Australia - whether that Court erred in dismissing an application for judicial review of the decision of the Refugee Review Tribunal affirming the decision of the delegate of the Minister not to grant the appellants Protection (Class XA) visas - whether apprehended or actual bias on the part of the judge of the Federal Circuit Court - whether jurisdictional error on the part of the Tribunal - whether the Tribunal failed to…

Bromberg, Davies and Mortimer JJ ( 248 FCR 456 )

MIGRATION - exercise of power under s 501CA(4) of the Migration Act 1958 (Cth) - appellant made representations in accordance with s 501CA(3) to the Assistant Minister that he feared harm if forced to return to his country of nationality - Assistant Minister failed to consider appellant's claim to fear harm in circumstances where appellant could apply for protection visa - whether exercise of revocation power under s 501CA(4) requires consideration of a claim to fear harm in …

MIGRATION - application for a subclass 457 temporary work (skilled) visa - application by sponsor of the nominated occupation of the visa applicant was refused - the visa applicant's application for a subclass 457 visa refused by a delegate of the first respondent - whether the delegate's decision to dismiss the visa application was an MRT-reviewable decision under s 338(2) of the Migration Act 1958 (Cth) - fraud on the Tribunal.

Foster, Yates and Gleeson JJ ( 350 ALR 63 )

PRACTICE AND PROCEDURE - application for leave to appeal from a decision of a single judge of the Federal Court denying an application for preliminary discovery by a prospective applicant - whether prospective applicant had reasonable basis for a belief that he may have a right to obtain relief in the Court - whether evidence of prospective applicant's subjective belief required - nature of evidence required to establish subjective belief - whether discretion ought to be…

Barker, Moshinsky and O'Callaghan JJ ( 347 ALR 634 )

ADMINISTRATIVE LAW - decision made by reference to departmental handbook - whether decision made "under an enactment" within the meaning of the Administrative Decisions (Judicial Review) Act 1977 (Cth) - whether decision made under an Act - whether decision made under an instrument BANKRUPTCY AND INSOLVENCY - where sequestration order made - whether proceeding stayed by force of s 60(2) of the Bankruptcy Act 1966 (Cth) - whether exception in s 60(4) applies - whether…

Reeves, Robertson and Rangiah JJ ( 350 ALR 47 )

ADMINISTRATIVE LAW - judicial review under s 39B of the Judiciary Act 1903 (Cth) of the Minister's decision not to revoke, pursuant to s 501CA(4) of the Migration Act 1958 (Cth), cancellation of the respondent's visa - whether the primary judge erred in finding jurisdictional error on the part of the Minister - where the Minister stated he was mindful of the "principle" that persons who commit serious crimes "should expect to forfeit the privilege of remaining in Australia"…

MIGRATION - application for protection visa - whether error demonstrated in judgment of Federal Circuit Court dismissing application for judicial review

Allsop CJ, White and O'Callaghan JJ

INDUSTRIAL LAW - right of entry - entry by official of organisation to workplace after request to assist by health and safety representative under s 58(1)(f) of the Occupational Health and Safety Act 2004 (Vic) - obligation on employer to allow assistant entry under s 70 of the Occupational Health and Safety Act 2004 (Vic) - whether assistant exercised "State or Territory OHS right" within meaning of s 494 of the Fair Work Act 2009 (Cth)

North, White and O'Callaghan JJ

MIGRATION - appeal from decision of the Federal Circuit Court of Australia - where hearing conducted via video and telephone conferencing absent an application by the appellant - where appellant's brother excluded from hearing - where appellant alone giving evidence - where interpreter deposed to being accredited - whether representation as to interpreter accreditation false - whether appellant denied procedural fairness - appeal dismissed ; PRACTICE AND PROCEDURE -…

MIGRATION - appeal - refugees - application for protection visa - Tribunal finding about home area or home region - whether claim relating to travel outside home area or home region made - internal relocation - no jurisdictional errors found - appeal dismissed

North, Perry, Charlesworth JJ

BANKRUPTCY - dismissal of annulment application - appeal - refusal by primary judge to go behind judgment debts - history of litigation challenging judgment debts - solvency not proven - discretion to refuse annulment application irrespective of proof of solvency - no appealable error

MIGRATION - appeal from the decision of the Federal Circuit Court to dismiss the application for review of the decision of the Migration Review Tribunal - application for an adjournment of the hearing of the appeal for medical reasons - application refused

MIGRATION - appeal from decision of Federal Circuit Court - whether Tribunal's refusal to delay its decision until the date requested by the appellant was legally unreasonable - application of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 - appeal dismissed

Flick, Farrell and Mortimer JJ

ADMINISTRATIVE LAW - grant of visa prohibited if criteria not satisfied - whether jurisdictional error in respect to one criteria - remaining criteria not satisfied at time Tribunal made its decision - whether Tribunal lacked authority to refuse the visa where one unchallenged criteria not satisfied MIGRATION - refusal of grant of visa - criteria to be satisfied - Tribunal affirms Minister's refusal of visa - decision of Tribunal set aside - appeal by Minister - appeal…

MIGRATION - alleged denial of procedural fairness by Administrative Appeals Tribunal (Migration & Refugees Division) - Protection (Class XA) visa - alleged failure to consider claims made - no denial of procedural fairness - no jurisdictional error in primary judge's decision - appeal dismissed PRACTICE AND PROCEDURE - representation - persons under legal incapacity - children - litigation - representative appointed for minor appellant - dispensing with service and…

MIGRATION - appeal from decision of Federal Circuit Court of Australia affirming the decision of the Refugee Review Tribunal - where appellant has been denied protection visa - whether Federal Circuit Court failed to identify jurisdictional error on the part of the Tribunal - whether Tribunal by questions asked at the hearing concerning religious beliefs displayed bias against appellant and failed to engage with the basis of the appellant's claim for protection - whether…

MIGRATION - application for a Protection (Class XA) Visa - country information provided to the appellant for comment after Tribunal hearing - whether country information raised a new issue - whether Tribunal was required to invite appellant to appear in accordance with Migration Act 1958 (Cth) s 425 PRACTICE AND PROCEDURE - appeals - whether leave should be granted to raise new ground of appeal

MIGRATION - application for a Protection (Class XA) visa - appellants failed to appear - application to dismiss appeal under Federal Court Rules 2011 (Cth) r 36.75 - whether Tribunal considered all appellants' claims -grounds of appeal seeking impermissible merits review

MIGRATION - appeal from Federal Circuit Court of Australia - whether that Court erred in its judicial review of decision of former Migration Review Tribunal - cancellation of higher education visa - whether Tribunal failed to make a finding as to the claimed negligence of the appellant's agent - whether the Tribunal took into account an irrelevant consideration in the exercise of its discretion where that consideration, the appellant's failure to continue to be enrolled in a …

Dowsett, Gilmour and White JJ ( 121 ACSR 406; 348 ALR 1 )

TRADE AND COMMERCE - appeal from the dismissal of a claim that the respondents had engaged in misleading or deceptive conduct - claim based on positive representations and, as against the first respondent, on the non-disclosure of certain matters - held, by majority, that trial Judge had not dealt with the whole of the appellant's misleading or deceptive conduct case against the first respondent and, further, that it was not possible for the Full Court to determine the whole …

MIGRATION - appeal against dismissal of judicial review application by Federal Circuit Court (FCC) - application to the FCC was doomed to fail - no error shown in the FCC dismissing the application

MIGRATION - appeal from a decision of the Federal Circuit Court of Australia - whether Tribunal gave appellant clear particulars of information the Tribunal considered would be the reason or part of the reason for affirming the decision under review - whether Tribunal invited appellant to give evidence and present arguments relating to the issues arising in relation to the decision under review - appeal dismissed

MIGRATION - appeal from a decision of the Federal Circuit Court - whether the Court erred in dismissing an application for judicial review of a decision of the Refugee Review Tribunal - where the Tribunal affirmed a decision of the Minister's delegate to refuse to grant Protection (Class XA) visas - where the Tribunal made adverse credibility findings

MIGRATION - appeal from a decision from the Federal Circuit Court of Australia - where a delegate of the Minister rejected an application for a student visa - where appellant failed to satisfy mandatory requirement for grant of visa - no error established - appeal dismissed

MIGRATION - application for protection visa - repeat visa applications - complementary protection - decision of Refugee Review Tribunal refusing protection visa - decision of primary judge affirming decision of Tribunal - unreasonableness - refusal by Refugee Review Tribunal to grant extension of time pending preparation of psychologist report - whether refusal unreasonable - appeal dismissed

MIGRATION - application for a skilled visa - where Tribunal found that appellant did not meet Public Interest Criterion 4020 - where appellant did not appear at Tribunal hearing - whether appellant denied procedural fairness - whether bogus document findings were open to the Tribunal - effect of failure to define "recognised countries" in Ministerial instrument and thereby indicate the relevant assessing authority - appeal dismissed PRACTICE AND PROCEDURE - where grounds of…

Allsop CJ, Middleton and Beach JJ ( 346 ALR 202 )

TAXATION - share buy-back - dividend withholding tax payable by non-resident - part of off-market purchase price deemed to be dividend - part of purchase price debited against amounts standing to the credit of the share capital account of the company is not dividend - application for refund of withholding tax claimed to have been paid in error - share capital account - buy-back reserve account - whether record of transaction into which company had entered in relation to…

North, Bromberg and Bromwich JJ

MIGRATION - proper construction of s 360 of the Migration Act 1958 (Cth) - appeal from Federal Circuit Court decision dismissing application for judicial review of Tribunal's decision to cancel a scheduled hearing - where Tribunal hearing cancelled due to lack of response to s 359A comment invitation - where invitation to attend hearing was issued before comment invitation was issued - whether extant hearing obligation existed by virtue of earlier hearing invitation -…

Bromberg, Bromwich and Charlesworth JJ

ADMINISTRATIVE LAW - jurisdictional error affecting administrative decision - no possibility of different outcome had error not been made - discretionary refusal of remedies sought on application for judicial review - relief denied on appeal MIGRATION - Tribunal decision to affirm cancellation of higher education student visa - meaning of "circumstance" in s 116(1)(a) of the Migration Act 1958 (Cth) - Tribunal asked itself the wrong question in determining whether grounds to …

MIGRATION - Protection (Class XA) visa - refusal of visa application by delegate of the Minister - application for review of delegate's decision purportedly filed out of time - Tribunal found it lacked jurisdiction - dismissal of application for judicial review of Tribunal decision by Federal Circuit Court - whether the appellant had been notified of the delegate's decision - when the appellant was taken to have been notified of the delegate's decision under s 494C(7) of the …

MIGRATION - application for protection visa - alleged errors by Tribunal - alleged failure to inquire - appeal dismissed

Jagot, Yates and Burley JJ ( 123 IPR 455; 249 FCR 17 )

PATENTS - whether primary judge erred in finding that an application for Pharmaceutical Benefits Scheme (PBS) listing is not an infringement of patent - whether an application for PBS listing constitutes an offer to supply and an exploitation of the claimed invention

MIGRATION - Protection (Class XA) visa - refusal of visa application by delegate of Minister - decision of delegate upheld by Tribunal - dismissal of application for judicial review of Tribunal decision by Federal Circuit Court of Australia - whether it was relevant for the Tribunal to ask the appellant questions about her knowledge of another person's grounds for seeking protection - whether Tribunal acted unreasonably - no jurisdictional error established - no error of…

MIGRATION - appeal from a decision of Federal Circuit Court of Australia - no appellable error identified in the decision below - new grounds argued did not raise any issue that ought to be considered on appeal - appeal dismissed

Jagot, Nicholas and Burley JJ ( 124 IPR 210; 250 FCR 155 )

PATENTS - whether patentee entitled to relief for infringement from date of patent or date of grant - consideration of the scheme of the Patents Act 1990 (Cth) and Patents Regulations 1991 (Cth) - purpose of complete specification being open to public inspection - divisional applications filed in respect of standard patent filed as divisional of a provisional patent application - infringement and accessorial liability - innovation patents PATENTS - invalidity - external fair …

MIGRATION - appeal from a decision of the Federal Circuit Court of Australia - decision to refuse leave to amend application and dismiss application - whether proposed grounds of appeal had "reasonable prospects of success" - appeal dismissed

Besanko, McKerracher and Beach JJ

CONTRACTS - construction - power of private parties to create rights inconsistent with legislative and regulatory regimes - alleged variation by subsequent contracts of contractual terms contained in formal deed - where subsequent contracts do not refer expressly to the term allegedly being varied - importance of context and nature of variation - breach of contract - construction and validity of termination notices ESTOPPEL - estoppel by convention - requirements for an…

North, Dowsett and Rares JJ ( 267 IR 182; 249 FCR 458 )

INDUSTRIAL LAW - Fair Work Act 2009 (Cth) - course of conduct - where union and several officials organise industrial action in contravention of s 348 with intent to coerce person to engage in lawful action - whether contravening conduct of officials deemed by s 793 to have been engaged in by body corporate amounts to single course of conduct or several individual contraventions by body corporate - whether omission of s 348 from s 557 affects treatment of contraventions as a …

MIGRATION - appeal from Federal Circuit Court of Australia - application in that Court for judicial review of decision of former Migration Review Tribunal (Tribunal) - whether the Tribunal denied the appellant procedural fairness - whether the Tribunal engaged in an improper exercise of power - whether the Tribunal should have confined itself to the issue considered by the delegate

MIGRATION - interlocutory application to amend notice of appeal - where Tribunal affirmed delegate's decision not to grant protection visa - where proposed ground of appeal focussed on Tribunal's alleged failure to consider letters said to corroborate appellant's claim - application of VUAX principles for considering interlocutory applications with fresh grounds of appeal.

Jagot, Robertson and White JJ ( 248 FCR 349 )

LAND RIGHTS - Aboriginal Land Council - power of Land Council under s 35(4) of Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) where Land Council receives a payment in respect of Aboriginal land - content of duty, within 6 months after that payment is received, to pay an amount equal to that payment to or for the benefit of the traditional Aboriginal owners of the land - where three clans of traditional Aboriginal owners of the land - whether Land Council has…

MIGRATION - appeal from the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) - the Tribunal affirmed the decision of the delegate not to grant the appellant a Protection (Class XA) visa - appellant a citizen of Pakistan who claimed that he had experienced discrimination and harassment as a result of his Shia religion and Mohajir ethnicity - claim that the authorities could not and …

MIGRATION - whether Tribunal failed to consider child's speech impediment in assessing reasonableness of relocation - whether Tribunal failed to consider claim to fear persecution by reason of membership of a particular social group, being girls who attend or have attended a western school - appeal dismissed

MIGRATION - appeal from decision of Federal Circuit Court of Australia - where appellant made protection claims in relation to data breach - whether Administrative Appeals Tribunal fell into jurisdictional error - appeal dismissed

Jessup, Tracey and Reeves JJ ( 249 FCR 154; 268 IR 212 )

INDUSTRIAL LAW - construction of s 492(3) of the Fair Work Act 2009 (Cth) - where there was no agreed location for interviews or discussions by permit holders under s 492(1) - whether "purpose" of the "default location" in s 492(3)(b) requires the single or sole purpose of the room or area to be taking meal or other breaks - whether "purpose" in s 492(3)(b) requires a determination of the occupier's subjective intentions in providing the room or area - consideration of…

MIGRATION - appeal from the decision of the Federal Circuit Court of Australia to dismiss application for judicial review

Perram, Mortimer and Gleeson JJ ( 246 FCR 298; 344 ALR 317 )

CONSTITUTIONAL LAW - implied freedom of political communication - termination of respondent's commission in Australian Defence Force - regulation 85 of the Defence Force (Personnel) Regulations 2002 (Cth) - primary judge set aside termination because respondent's political comments protected by implied freedom of political communication - appeal allowed - primary judge erred in applying Lange test at wrong level - McCloy v State of New South Wales (2015) 89 ALJR 857 applied…

MIGRATION - appeal from Federal Circuit Court upholding decision of Migration Review Tribunal to refuse to grant a student visa - failure to satisfy the requirement that the visa applicant intended genuinely to stay in Australia temporarily - the criterion in cl 572.223 of the Migration Regulations 1994 (Cth) - jurisdictional error not established - appeal dismissed

MIGRATION - appeal from decision of the Federal Circuit Court of Australia - application for protection visa - whether primary judge erred in concluding that the Tribunal did not fall into jurisdictional error - no error established

MIGRATION - appeal from decision of the Federal Circuit Court of Australia - application for protection visa - whether primary judge erred by failing to find Tribunal fell into jurisdictional error

MIGRATION - Protection (Class XA) visa - appeal from the Federal Circuit Court of Australia ("FCC") - whether the FCC erred by failing to find jurisdictional error in the Tribunal's finding that the appellant, a citizen of Syria, had a right to return to Lebanon for the purposes of s 36(3) of the Migration Act 1958 (Cth) - where the appellant claimed that the law in Lebanon had changed since the Tribunal's decision such that he no longer had a right to enter and reside in…

MIGRATION - Protection (Class XA) visa - appeal from the Federal Circuit Court of Australia ("FCC") - whether the judgment of the FCC was affected by actual or apprehended bias - no basis for suggesting actual bias - where the reasons for judgment indicate that the primary judge listened to the transcript of the Tribunal hearing and addressed each of the appellant's complaints about the conduct of the hearing - no basis for suggesting that a fair-minded lay observer might…

Griffiths, Kerr and Farrell JJ ( 248 FCR 1 )

MIGRATION - appeal from a decision of the Federal Circuit Court of Australia under s 24 of the Federal Court of Australia Act 1976 (Cth) - appeal in the nature of a rehearing - whether primary judge erred in finding that the Administrative Appeals Tribunal's decision under s 426A of the Migration Act 1958 (Cth) was unreasonable in the legal sense - whether there was an appealable error on the part of the primary judge Held: appeal dismissed with costs

MIGRATION - Protection (Class XA) visa - appeal from the Federal Circuit Court of Australia ("FCC") - whether FCC erred in failing to find jurisdictional error in the decision of the Tribunal - no basis for any suggestion that the FCC's decision was affected by appellable error - appeal dismissed

MIGRATION - appeal from decision of the Federal Circuit Court of Australia - whether primary judge erred in dismissing application for judicial review of a decision of the Refugee Review Tribunal to refuse to grant a Protection (class XA) visa - whether Tribunal failed to address the three integers of the appellant's protection visa claim - whether Tribunal failed to properly consider the complimentary protection regime - whether Tribunal failed to accord the appellant…

MIGRATION - judicial review - application for Student (Temporary) (Class TU) visa refused - whether jurisdictional error on the part of the Migration Review Tribunal - whether actual bias on the part of the Tribunal member - whether apprehended bias on the part of the Tribunal member - whether the Tribunal member prejudged that the appellant did not meet the 'genuine temporary entry criterion'

MIGRATION - application for Protection (Class XA) visa - whether Federal Circuit Court of Australia erred in finding no jurisdictional error on the part of the Administrative Appeals Tribunal

MIGRATION - appeal from decision of the Federal Circuit Court - whether primary judge erred in dismissing application for judicial review of decision to affirm cancellation of partner visa - no error established - appeal dismissed.

MIGRATION - application of Migration Act s 48A - whether appellants entitled to lodge a further visa protection claim where first claim was decided before enactment of complementary protection regime - whether the Department of Immigration and Border Protection is obliged to advise non-citizens of legislative amendments that may adversely affect their rights - appeal dismissed

MIGRATION - application for protection (class XA) visa - appeal from Federal Circuit Court of Australia - whether primary judge erred by failing to find Tribunal committed jurisdictional error - whether Tribunal failed to consider an aspect of appellant's claim - whether Tribunal made a finding in respect of which there was no evidence

MIGRATION - Appeal from Federal Circuit Court of Australia - Protection (Class XA) visa - jurisdictional error - Migration Act 1958 (Cth) s 424A

INDUSTRIAL LAW - whether deed of agreement is binding - whether applicant was under a special disability or economic duress - whether applicant was a false witness, was willing to manufacture evidence and exaggerated his state of mind COSTS - whether costs order under Fair Work Act 2009 (Cth) s 570 is appropriate - whether institution and conduct of proceedings was vexatious and without reasonable cause PRACTICE AND PROCEDURE - whether application for leave to appeal…

MIGRATION - Refugees - appeal from application for judicial review of decision of Refugee Review Tribunal not to grant protection visa - whether primary judge erred in finding that Tribunal did not rely on possibility that appellant had "learned his evidence" - whether primary judge erred in finding that Tribunal failed to consider the merits of appellant's "core claims" - whether appellant should be granted leave to amend to argue Tribunal had contravened s 425 of Migration …

Flick, Jagot and Bromwich JJ

COSTS - application for costs under the Fair Work Act 2009 (Cth) - whether proceedings instituted without reasonable cause

BANKRUPTCY AND INSOLVENCY - judgment debt consequent upon an adverse costs order - where judgment debt said to be affected by fraud - circumstances in which bankruptcy court may go behind judgment - application of House v The King (1936) 55 CLR 499 on an appeal from a finding that there was no "sufficient cause" not to make sequestration order - Bankruptcy Act 1966 (Cth), s 52(2)(b) TRUSTS AND TRUSTEES - personal liability of trustees for debts incurred in the performance of …

Dowsett, Jagot and Farrell JJ ( 341 ALR 415; 250 FCR 341 )

PRACTICE AND PROCEDURE - abuse of process - unconditional discontinuance proceedings in different court involving same substratum of fact - whether abuse of process operates against person not party to earlier proceeding - where earlier proceeding not decided upon merits - opportunity to make claims in earlier proceedings - oppression or unfairness

Jessup, Tracey and Reeves JJ

STATUTORY INTERPRETATION - whether Commissioner's subsequent proceeding following settlement by co-applicant prohibited by legislation - primary judge held Commissioner's proceeding allowed under legislation but amounted to an abuse of process - consideration of legislation proscribing Commissioner's ability to commence subsequent litigation - appeal against abuse of process finding upheld.

Gilmour, Logan and Robertson JJ ( 343 ALR 275 )

TAXATION - assessment - validity of assessment - process of assessment - conclusive evidence - claim of conscious maladministration - claim of bad faith - claim of illegality - state of mind - requirement to plead particulars PRACTICE AND PROCEDURE - summary judgment - strike out - reasonable prospect of success - failure to disclose reasonable cause of action or defence or other case appropriate to the nature of the pleading - whether leave to re-plead

2016 delivered judgments

MIGRATION - refusal of application for protection visa by a delegate of the Minister for Immigration and Border Protection - where Refugee Review Tribunal affirmed decision of the delegate - where Federal Circuit Court dismissed appellant's appeal - where appellant gave notice under s 426(2) of the Migration Act 1958 (Cth) that the Refugee Review Tribunal take oral evidence from witnesses - where some witnesses provided written statements which were submitted to the Refugee…

MIGRATION - inadvertent disclosure on Department's website of personal information - implications for protection visa applicants MIGRATION - application of the decision of the High Court in SZSSJ - Minister had made no personal procedural decision - a fact specific inquiry - applicant had opportunity to make submissions to Tribunal after inadvertent disclosure of information

Allsop CJ, North and Jessup JJ ( 341 ALR 383; 266 IR 151; 247 FCR 339 )

STATUTORY INTERPRETATION - Remedies for contravention of statutory prohibitions - Civil proceeding for penalty - Maximum penalties prescribed - Additional power to make any order considered appropriate - Whether power to order another person not to indemnify respondent against his or her liability to pay penalty.

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INDUSTRIAL LAW - Penalty for contravention of statutory prohibition - Whether court has power to order another person not to indemnify respondent against his or her …

MIGRATION - appeal from a decision of the Administrative Appeals Tribunal (AAT) - where AAT affirmed decision of a delegate of first respondent to refuse the applicant a visa under s 501(1) of the Migration Act 1958 (Cth) - whether AAT failed to take into account previous Migration Review Tribunal decision - whether applicant was denied procedural fairness - whether AAT erred in its consideration of the applicant's sentence of imprisonment - whether AAT failed to have regard …

Kenny, Perram and Mortimer JJ ( 244 FCR 305; 343 ALR 97 )

MIGRATION - procedural fairness - certificate issued under s 375A of the Migration Act 1958 (Cth) - whether Tribunal required to disclose existence of certificate

Jagot, Yates and Bromwich JJ ( 340 ALR 25 )

CONSUMER LAW - pecuniary penalty for infringement of Australian Consumer Law - appropriate approach to assessment and appellate review of civil penalty - relevance of mental state to pleadings and assessment of penalty - appropriate application of "course of conduct" principle - re-exercise of penalty discretion CONSUMER LAW - pecuniary penalty for infringement of Australian Consumer Law - whether primary judge erred in assessing loss or damage suffered by consumers as a…

Logan, Jagot and Davies JJ ( 344 ALR 589 )

TAXATION - appeal from a single judge of the Federal Court of Australia - appeal from the Administrative Appeals Tribunal - where primary judge set aside various objection decisions of the appellant - whether finding of loans open - procedural fairness

Kenny, Flick and Rangiah JJ ( 248 FCR 528 )

VETERANS' ENTITLEMENT - compensation payable for incapacity in respect of spine condition - pension also sought under Veterans' Entitlements Act - claimed incapacity from same condition - reduction of pension by reason of compensation already being received STATUTORY INTERPRETATION - natural and ordinary meaning of words - no ambiguity

Kenny, Flick and Griffiths JJ ( 343 ALR 416 )

CONSTITUTIONAL LAW - appellant's visa cancelled under s 501(2) of the Migration Act 1958 (Cth) - whether appellant was an alien for the purposes of s 51(xix) of the Constitution - application of Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; 218 CLR 28 and R v Pearson; Ex parte Sipka [1983] HCA 6; 152 CLR 254 MIGRATION - whether appellant had taken oath under s 15 of the Australian Citizenship Act 1948 - whether appellable error in findings of…

Collier, Katzmann and Farrell JJ ( 247 FCR 422 )

ADMINISTRATIVE LAW - eligibility for age pension - New Zealand nationals - husband and wife - whether they had achieved "10 years qualifying Australian residence" - consideration of the Agreement on Social Security between the Government of Australia and the Government of New Zealand - residence requirement not satisfied - appeal dismissed

Dowsett, Kenny and Edelman JJ ( 344 ALR 558 )

TAXATION - application for leave to appeal from a decision of a single judge of the Federal Court of Australia setting aside orders of a registrar that the respondent pay security for costs - whether primary Judge erred in considering the defensive nature of the primary proceedings as determinative of the question of security for costs - whether primary Judge erred in the characterisation of proceedings under Part IVC of the Taxation Administration Act 1953 (Cth)

Collier, Jessup and Katzmann JJ

PRACTICE AND PROCEDURE - request for adjournment of Full Court hearing - where parties had had ample time to prepare - request for adjournment based on appellant's wish to prepare for other Full Court matters, alleged settlement negotiations, appellant's health conditions - no affidavit evidence supporting adjournment - appellant's history of non-attendance at hearings - s 37M Federal Court of Australia Act 1976 (Cth) - public interest to expeditiously determine bankruptcy…

Greenwood, McKerracher and Moshinsky JJ ( 248 FCR 211 )

TAXATION - capital gains tax - small business concessions - 50% reduction for small business - whether aggregated turnover of relevant entity for previous year of income was less than $2,000,000 - whether receipts in respect of fuel disbursements were ordinary income that the entity derived "in the ordinary course of carrying on a business"

MIGRATION - application for visa - whether applicant dependent on her son - findings of fact by Tribunal adverse to applicant ADMINISTRATIVE LAW - jurisdictional error - acting contrary to the evidence - a potential to impermissibly invite merits review

Jessup, Katzmann and White JJ ( 262 IR 329; 245 FCR 155 )

INDUSTRIAL LAW - application for judicial review under s 39B of the Judiciary Act 1903 (Cth) - decision by Deputy President of the Fair Work Commission (FWC) to approve, pursuant to ss 186-188 of the Fair Work Act (2009) (Cth) (FW Act), an enterprise agreement between the first respondent and persons expected to be employed in the enterprise - appeal to the Full Bench of the FWC dismissed - whether jurisdictional error in the decisions of the FWC - whether the agreement had…

MIGRATION - protection visa - whether appellants denied procedural fairness by primary judge on judicial review application - whether decision of primary judge affected by apprehended bias - whether open to decision - maker to find delay in making protection visa application affected credibility of visa applicant's claims - whether factual findings open to decision-maker

MIGRATION - appeal from Federal Circuit Court of Australia - appellant's visa cancelled on basis of having exceeded maximum amount of English Language Intensive Courses for Overseas Students permitted by cl 572.234 of the Migration Regulations 1994 (Cth) - failure to identify appealable error, and none apparent - appeal dismissed

MIGRATION - application for protection visa - whether primary judge erred in failing to find that Tribunal did not comply with s 424A of the Migration Act 1958 (Cth) - where Tribunal relied on decision records in previous visa applications in which appellant failed to mention, when relevant, claims put forward in application for protection visa - whether previous decision records "information" within the meaning of s 424A - effect of statement by Tribunal that these records, …

BANKRUPTCY - appeal from making of sequestration order - whether primary judge erred in failing to go behind judgment debt where bankrupt alleged without evidence that judgment procured by fraud - whether primary judge erred in finding no other sufficient cause not to make sequestration order - where bankrupt asserted claim against petitioning creditor that she was held to have been estopped from making and after orders had been made barring her from bringing such a claim

MIGRATION - appeal from decision of Federal Circuit Court - whether Tribunal decision affected by bias - whether Tribunal denied appellant procedural fairness - whether Tribunal "unfairly" reviewed appellant's case - appeal dismissed

MIGRATION - appeal from judgment of Federal Circuit Court of Australia - protection visas - whether Tribunal and primary judge misunderstood first appellant's claims - where first appellant claims to fear harm on basis of family dispute over property - appeal dismissed

MIGRATION - appeal from a decision of the Federal Circuit Court of Australia dismissing judicial review application - whether primary judge erred in rejecting appellant's judicial review ground that the Tribunal's adverse credibility findings were arbitrary and lacked evidence - whether procedural unfairness. Held: - appeal dismissed.

MIGRATION - student temporary (class TU) visa - whether the Administrative Appeals Tribunal misconstrued reg 572.223 of the Migration Regulations 1994 (Cth) - whether visa applicant is genuine student or the student visa is being used to maintain ongoing residence

INDUSTRIAL LAW - workplace rights - action not taken by reason of exercising PRACTICE AND PROCEDURE - appellable error - findings of fact

Rares, Farrell and Davies JJ ( 117 ACSR 446; 250 FCR 381 )

PRACTICE AND PROCEDURE - appeal from orders dismissing applications to set aside statutory demands pursuant to s 459J(1)(b) of the Corporations Act 2001 (Cth) - whether leave to appeal required CORPORATIONS - application to set aside statutory demand under s 459G of the Corporations Act 2001 (Cth) - where statutory demand for payment of taxation liabilities under s 459E(5) - whether sufficient to show the issuing of the statutory demands was unconscientious, an abuse of…

Collier, Katzmann and Farrell JJ

ADMINISTRATIVE LAW - decision of the Administrative Appeals Tribunal (the Tribunal) - application under s 48 Freedom of Information Act 1982 (Cth) (the FOI Act) - appellant sought to have personal records held by the Department of Immigration and Border Protection (the Department) amended - appellant claimed records incorrectly recorded a person as appellant's son - Tribunal summarily dismissed appellant's application for review of her FOI application as no reasonable…

MIGRATION - Application for extension of time and leave to bring an appeal from a decision of the Federal Circuit Court - whether the merits of the case are such that leave to appeal should be granted - no demonstrable error in Federal Circuit Court decision.

MIGRATION - appeal from Federal Circuit Court - whether the Tribunal decision was affected by jurisdictional error - where the appellant did not attend the Tribunal hearing - whether the Tribunal's decision to proceed to determine the appellant's application in the appellant's absence was legally unreasonable - where there was no pattern of contact between the appellant and the Tribunal - where the appellant had experienced domestic violence in Australia

MIGRATION - application for protection (class XA) visa - appeal from Federal Circuit Court of Australia - whether primary judge denied appellant procedural fairness by refusing adjournment to seek legal advice

MIGRATION - application for protection (class XA) visa - appeal from Federal Circuit Court of Australia - whether primary judge committed jurisdictional error - whether Tribunal erred by failing to comply with requirements in s 424A and s 425 of the Act - whether Tribunal erred by failing to consider whether circumstances of appellant's likely detention upon return to his country of nationality might involve harm "intentionally inflicted"

MIGRATION - application for judicial review - decision of Refugee Review Tribunal to affirm decision of the Minister to refuse a protection visa application - Federal Circuit Court dismissed appeal - grounds of appeal unparticularised. Held: appeal dismissed.

MIGRATION - protection visa - whether primary Judge considered if the Tribunal had regard to s 91R of the Migration Act 1958 (Cth)

MIGRATION - protection visa - whether primary Judge failed to take into account s 91R

MIGRATION - whether the Federal Circuit Court (the Court) erred in finding that the appellant was given an opportunity to comment and respond in accordance with s 424AA(1)(b)(iii) and (iv) Migration Act 1958 (Cth) - whether the Court erred by failing to recognise that the Tribunal's decision was based on "misconception" - whether the Tribunal was biased in its assessment of the appellant's case - appeal dismissed

MIGRATION - protection visa - no basis upon which the primary Judge could have set aside Tribunal's decision

Bromwich J ( 245 FCR 308 )

SALE OF GOODS - appeal from Federal Circuit Court - advertisement of private sale of particular model of collectable car on Gumtree - application of ss 18 and 61 of the Goods Act 1958 (Vic) - meaning of "sale by description" - inspection of car by purchaser - contract for private sale of collectable car - common mistake that car was particular model - post-settlement inspection revealed car was a different model and worth $110,000 less than purchase price - whether vendor or …

North, Jessup and White JJ ( 244 FCR 344; 264 IR 192 )

INDUSTRIAL LAW - industrial association of pilots alleged adverse action - appellant company challenged association's standing to bring action - standing subject to whether industrial association "entitled to represent industrial interests" of the pilots - no evidence that appellant's pilots were members of association - whether standing extended to non-members. INDUSTRIAL LAW - meaning of "entitled to represent industrial interests" - phrase undefined in relevant…

ADMINISTRATIVE LAW - appeal from a decision of the Administrative Appeals Tribunal to affirm a decision of the Migration Agents' Registration Authority refusing application by the applicant for registration as a migration agent - whether AAT erred by failing to identify relevant sections of Migration Act - whether AAT erred by taking into account spent convictions - whether AAT applied incorrect standard of proof - AAT did not so err - appeal dismissed

Robertson J ( 155 ALD 113 )

MIGRATION - appeal from orders of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the then Refugee Review Tribunal (Tribunal) - whether the primary judge erred in failing to hold that the Tribunal impeded the first appellant from giving evidence and thereby breached s 425 of the Migration Act 1958 (Cth) - whether the primary judge erred by not holding that the Tribunal failed to highlight the issues of concern or express…

APPEAL - whether the appeal is incompetent because the grounds of appeal are defective - whether the appeal should be summarily dismissed on the grounds of incompetency.

MIGRATION - appeal from Federal Circuit Court of Australia - whether denial of procedural fairness by Tribunal - whether Tribunal failed to have regard to appellant's evidence

MIGRATION - application for a Protection (Class XA) Visa on basis of Tamil ethnicity, Hindu religion and religious involvement, suspected support for the LTTE, support for a Tamil political candidate and being a Tamil man who departed Sri Lanka illegally - refusal by a delegate of the Minister for Immigration and Border Protection - review of the delegate's decision by the Refugee Review Tribunal - application for judicial review in Federal Circuit Court of Australia -…

Robertson, Davies and Wigney JJ ( 341 ALR 353; 250 FCR 287 )

TAXATION - allocation of taxing rights - interaction between Art 7 and Art 12 of the Agreement between the Government of Australia and the Government of the Republic of India for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income 1991 [1991] ATS 49 - operation of Art 7 "business profits rule" - operation of Art 12 "the royalties provision" - whether Art 12(4) on its proper construction applied to royalties - whether source…

Dowsett, Kenny, Siopis, Besanko and Mortimer JJ ( 244 FCR 366 )

MIGRATION - Refugee Review Tribunal (Tribunal) affirmed delegate's decision not to grant SZVCH a protection visa - Federal Circuit Court of Australia (FCCA) held the Tribunal was obliged to consider the applicability of both s 36(2)(a) and (aa) of the Migration Act 1958 (Cth) where delegate had considered both criteria - FCCA held that the Tribunal fell into jurisdictional error by failing to consider both criteria - whether FCCA erred in holding that the Tribunal fell into…

Allsop CJ, Jessup and Bromberg JJ ( 248 FCR 414 )

INDUSTRIAL LAW - Fair Work Act 2009 (Cth), s 340(1) - appeal of primary judge's holding that adverse action was taken because of the exercise of a workplace right - where respondent employee refused a direction to 'upgrade' and perform the work of a higher grade - where appellant employer dismissed the employee for reasons including the employee's refusal to upgrade - whether primary judge erred in construing the applicable enterprise agreement as providing the employee a…

MIGRATION - Appeal from judicial review of decision of Migration Review Tribunal - application for partner visa - whether genuine spousal relationship - allegation of refusal to allow an adjournment - allegation of lack of procedural fairness - appeal dismissed

MIGRATION - appeal from a decision of Federal Circuit Court of Australia - no error identified in the decision - appeal dismissed

MIGRATION - appeal from the Federal Circuit Court of Australia - Protection (Class XA) visa - no appealable error

MIGRATION - Where appellants allege fear of persecution due to opposition to religious conversion - Whether Tribunal erred in considering number of converts being targeted - Whether Tribunal's decision regarding risk was unreasonable given earlier findings - Appeal dismissed.

PRACTICE AND PROCEDURE - application for security for costs - application made in the context of an appeal - power of the Court to order security for costs

MIGRATION - appeal from a decision of the Federal Circuit Court of Australia dismissing an application for review of a decision of the Migration Review Tribunal - whether the primary judge erred by failing to find the Tribunal reached conclusions not based on evidence - whether leave should be granted to raise a ground that the primary judge erred in failing to find the Tribunal denied the applicant procedural fairness manifest by alleged bias on the part of the Tribunal -…

Tracey, Perry and Charlesworth JJ ( 152 ALD 478 )

MIGRATION - application for extension of time under s 477(2) of the Migration Act 1958 (Cth) - whether primary judge ruled in the exercise of discretion not to permit new ground of application to be raised - whether error in the exercise of discretion established - whether Federal Circuit Court erred in misconstruing power to extend time - principles as to the proper disposition of an application for an extension of time within which to seek judicial review - leave to amend…

Besanko, Nicholas and Beach JJ

PATENTS - appeal against decision of primary judge that appellants' claims were invalid for lack of novelty and lack of inventive step - where primary judge held respondent would have infringed appellants' claims had they been valid - where patent concerns carbostyril compound called aripiprazole and its use in treatment of schizophrenia - where primary judge held features of claims accretions to knowledge or arbitrary not sufficient to give rise to novelty - whether primary …

Rares, Collier and Markovic JJ

BANKRUTPCY AND INSOLVENCY - appeal from a decision of the Federal Court of Australia allowing a creditor's petition - where resolution passed at meeting of creditors in favour of debtor executing a personal insolvency agreement over the opposition of the applicant creditor and Deputy Commissioner of Taxation - where applicant creditor and respondent sought to have the appeal allowed by consent and the sequestration order set aside - where the Deputy Commissioner of Taxation…

Siopis, Barker and Charlesworth JJ ( 151 ALD 399; 244 FCR 76 )

EXTRADITION - surrender determination made for extradition - surrender determination made under s 22(2) of the Extradition Act 1988 (Cth) - construction of Articles V and XIII of Treaty on Extradition between Australia and the United States of America of 14 May 1974, as amended by the Protocol done at Seoul on 4 September 1990 - whether Australian nationality of surrendered person requires positive satisfaction by the decision-maker that it is proper to surrender that person …

MIGRATION - Refugee Review Tribunal - Protection (Class XA) visa - whether the Tribunal failed to consider the appellant's medical evidence - whether the Tribunal failed to take into account the appellant's claims in relation to determining the risk of significant harm - whether the Tribunal's reasons were unreasonable or illogical - whether the Tribunal allowed the appellant to give evidence and present arguments - no jurisdictional error - appeal dismissed.

Siopis, Katzmann and Moshinsky JJ ( 246 FCR 508 )

BANKRUPTCY - creditor's petition - creditor's petition based on failure to comply with bankruptcy notice requiring payment of judgment debt - judgment debtor contended that court of bankruptcy should 'go behind' judgment - principles applicable to 'going behind' a judgment - where petitioning creditor accepted that there was an "open question" whether any debt owing

MIGRATION - appeal from Federal Circuit Court of Australia - where primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal - where Tribunal affirmed decision of a delegate of the Minister for Immigration and Border Protection not to grant a protection visa - Migration Act 1958 (Cth), s 5(1) - whether the Tribunal misconstrued the expressions "intentionally inflicted" and "intended to cause" in the definitions of "cruel or…

MIGRATION - appeal - whether Federal Circuit Court erred in failing to find that the Administrative Appeals Tribunal's (the Tribunal) decision was affected by error - Tribunal's reasons thorough and explanatory - no evidence to support allegation of bias on the part of the Tribunal - whether the Tribunal denied the appellant natural justice - no evidence that the Tribunal proceeded with hearing despite the appellant's request for adjournment due to ill health - whether the…

North, Rangiah and Moshinsky JJ

MIGRATION - appeal from decision of the Federal Circuit Court of Australia - application for protection visa - whether Tribunal's decision affected by jurisdictional error - whether Tribunal failed to consider claim that it would be unreasonable to relocate because of lack of traditional support mechanisms - whether reasonable apprehension of bias

Farrell J ( 155 ALD 346 )

MIGRATION - appeal from decision of the Federal Circuit Court of Australia dismissing the appellant's application for judicial review - where Tribunal affirmed a decision of the Minister's delegate to refuse the appellant a Long-Stay Temporary Business (UC) subclass 457 visa - where nominated occupation is customer service manager - where appellant employed at a Caltex retail franchise outlet with four employees - where Tribunal not satisfied that the position associated…

MIGRATION - appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a Refugee Review Tribunal decision - where appellant raised new grounds of appeal that were not before the Federal Circuit Court - where no clear merit in the proposed new grounds of appeal - appeal dismissed

MIGRATION - appeal from Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the then Refugee Review Tribunal - Tribunal affirmed decision not to grant the appellant a Protection (Class XA) visa - whether jurisdictional error on the part of the Tribunal - whether Tribunal proceeded without taking into account the appellant's dizziness or injury - whether Tribunal failed to take into account the appellant's fear of persecution and…

MIGRATION - appeal from a decision of the Federal Circuit Court - appellant, an Albanian citizen, applied for a partner visa under the family violence provisions of the Migration Regulations 1994 (Cth) - Migration Review Tribunal not satisfied appellant suffered family violence and referred claims to independent expert for assessment - whether independent expert failed to consider correct test for relevant family violence

PRACTICE AND PROCEDURE - raising new arguments on appeal - same grounds previously abandoned - leave to raise new grounds refused ADMINISTRATIVE LAW - place at which a hearing is held - appearance by way of video link and telephone

Logan, Pagone and Davies JJ ( 243 FCR 302 )

TAXATION - appeal from Federal Circuit Court affirming respondent's decision to disallow the applicants' objections against amended assessments and notices of assessment of shortfall penalty - where applicants entered purported loan agreement transaction - where loan agreement transaction facilitated by agent - whether transaction was a sham - whether court erred in not confining its assessment of whether sham existed to an inquiry into applicants' subjective intentions -…

Allsop CJ, Greenwood, Besanko, Nicholas and Katzmann JJ ( 120 IPR 1; 244 FCR 557 )

TRADE MARKS - application for removal of trade mark based on non-use - whether use by licensee is 'authorised use' - whether licensee used the trade mark under the control of the owner of the trade mark - whether owner of trade mark exercised quality control - whether mere contractual power or bare licence sufficient to establish control - whether trade mark must indicate connection in the course of trade with the registered owner - interpretation of Trade Marks Act 1995…

MIGRATION - scope of obligation under s 425(1) of the Migration Act 1958 (Cth)

Allsop CJ, Kenny and Bromwich JJ ( 240 FCR 143 )

ADMINISTRATIVE LAW - alleged breach of s 425 of the Migration Act 1958 (Cth) - no obligation to receive further evidence on a fact that is accepted by the Tribunal -use of adverse credit findings by the Tribunal

MIGRATION - protection visa under s 36(2)(aa) of the Migration Act 1958 (Cth) - complementary protection grounds - whether the Refugee Review Tribunal erred in not granting the appellant a protection visa - appeal dismissed

Jagot, Edelman and Moshinsky JJ ( 114 ACSR 33; 243 FCR 516 )

CORPORATIONS - power of attorney - construction of general power of attorney - whether exclusion of liability for conflict of interest or direct or personal interest authorises transfer of company assets for director's private purposes - whether recipients can rely upon assumptions in ss 128 and 129 of the Corporations Act 2001 (Cth) EQUITY - unjust enrichment - constructive trust - receipt of company assets without authority - irrelevance of recipient's knowledge to prima…

Buchanan J ( 258 IR 85 )

INDUSTRIAL LAW - construction of enterprise agreement provision concerning cashing out of personal/carer's leave - where shifts of three different lengths are worked by employees - reduction of credit for leave taken reflected 8.5-hour shift length - 12.5-hour and 10.5-hour shift workers have greater effective entitlement to take leave if expressed as hours rather than days - cashing out provisions of the Fair Work Act 2009 (Cth) and enterprise agreement require payment to…

Allsop CJ, Pagone and Davies JJ ( 247 FCR 40 )

TAXATION - Appeal from Administrative Appeals Tribunal - Income Tax - Whether appellant holder of an office in an international organisation within meaning of International Organisations (Privileges and Immunities) Act 1963 (Cth)

Allsop CJ, Kenny and Bromwich JJ

MIGRATION - decision from the Federal Circuit Court of Australia affirming the decision of a delegate of the Minister not to grant a protection visa - where a Tribunal has found an applicant has been persecuted - where a Tribunal has found that an applicant can relocate within his or her country - how relevant country information is used by a Tribunal to assess an application for a protection visa - whether a judge's questioning of counsel amounts to a denial of procedural…

BANKRUPTCY AND INSOLVENCY - Appeal from decision of Federal Circuit Court dismissing application for review of decision of Registrar to make a sequestration order - whether primary judge failed to conduct a hearing de novo - whether primary judge erred in declining to go behind consent judgment - whether primary judge disregarded debtor's evidence - whether debtor's evidence sufficient to discharge evidential burden

MIGRATION - failure to disclose information that may be a reason for affirming the decision - information not identified - no unreasonableness in manner in which Tribunal proceeded to affirm delegate's decision PRACTICE AND PROCEDURE - leave to raise new argument on appeal refused

MIGRATION - appeal from Federal Circuit Court - whether the Federal Circuit Court erred in failing to adjourn the hearing - whether the Tribunal decision was affected by jurisdictional error in that it failed to consider a claim or an integer of a claim - no error by Federal Circuit Court in dismissing application for review

Siopis, Buchanan and Bromberg JJ ( 258 IR 396; 245 FCR 39 )

INDUSTRIAL LAW - construction of s 418 of the Fair Work Act 2009 (Cth) - powers of the Fair Work Commission under s 418 - such orders are limited to the scope of identified industrial action - primary judge held that orders of the FWC lacking in specificity were invalid - no error in the approach of the primary judge INDUSTRIAL LAW - Fair Work Commission ordered that "de-isolation of equipment" was protected industrial action - dispute between parties as to the practical…

MIGRATION - application for a protection visa - citizen of Bangladesh - fear of persecution because homosexual - claim rejected by Tribunal - whether information about gay venues was s 424A information - whether s 424A(3)(a) exception applied

MIGRATION - finding by Federal Circuit Court of errors in Migration Review Tribunal's factual findings - whether Tribunal made factual errors - whether any factual errors would be jurisdictional errors

Kenny, Perram and Davies JJ ( 118 IPR 211; 241 FCR 1 )

TAXATION – whether penalty notices issued to taxpayer liable to be set aside – whether payment a royalty within the meaning of Art 12(3) of Agreement between Australia and Switzerland for the Avoidance of Double Taxation with respect to Taxes on Income [1981] ATS 5 – payment for digital signal for use in connection with exclusive broadcasting in Australia of Olympic Games – not consideration for use of, or right to use, copyright – future copyright – not for “other like…

MIGRATION - application for judicial review of a decision of the Federal Circuit Court of Australia - alleged failure to issue a notice under s 424A of the Migration Act 1958 (Cth) - alleged misconstruction and misapplication of the proper test relating to persecution - adjournment request refused - application dismissed.

MIGRATION - application for judicial review of a decision of the Federal Circuit Court of Australia - alleged failure to issue a notice under s 424A of the Migration Act 1958 (Cth) and to take into account full gravity of appellant's circumstances - application dismissed.

Kenny, Buchanan and Nicholas JJ ( 243 FCR 556 )

MIGRATION - three appeals from Federal Circuit Court of Australia heard together - judicial review of Refugee Review Tribunal decisions each refusing a protection visa - appellants claimed to fear significant harm if returned to Sri Lanka as persons who left Sri Lanka illegally - risk of arrest and remand in Sri Lankan prison - meaning of "intentionally inflicted" in definitions of "torture" and "cruel or inhuman treatment or punishment", and of "intended to cause" in…

2015 delivered judgments

MIGRATION - alleged denial of procedural fairness and a failure to consider relevant materials by the Refugee Review Tribunal - application for judicial review dismissed - appeal dismissed

Jessup, Tracey and Reeves JJ ( 256 IR 355; 243 FCR 386 )

INDUSTRIAL LAW - Collective bargaining - Organisation of employees a bargaining representative of a limited number of employees in relevant group - Whether organisation competent to apply for majority support determination - Relevance of eligibility rule of organisation

TAXATION - whether notices of assessment issued to taxpayer liable to be set aside - whether use of documents by the Commissioner which were said to be privileged constituted conscious maladministration for purposes of ss 175 and 177 of the Income Tax Assessment Act 1936 (Cth) - whether penalty assessments infected by same alleged maladministration ADMINISTRATIVE LAW - whether notices of assessment affected by jurisdictional error - whether conscious maladministration…

Jessup, Logan and Perram JJ ( 236 FCR 499 )

TAXATION - customs and excise - appeal from decision of the Administrative Appeals Tribunal - whether tariff concession order in respect of wind turbine gearboxes could be made - meaning of substitutable goods in s 269B(1) of the Customs Act 1901 (Cth) considered - operation of s 269E of the Customs Act considered STATUTORY INTERPRETATION - legislative history of Pt XVA of the Customs Act considered - whether definition of substitutable goods in s 269B(1) and ss 269C, 269D…

PRACTICE AND PROCEDURE - application for extension of time and leave to appeal against order of judge exercising appellate jurisdiction under s 25 Federal Court of Australia Act 1976 (Cth) - consideration of court's power to make orders after proceeding finalised - no basis for perfection of order under r 39.05 or slip rule - consideration of power to set aside or vary order under s 25(2B)(bc) - court functus officio with no power to reopen entered order - where applicant…

MIGRATION - judicial review - Migration Review Tribunal - Skilled (Residence) (Class VB) visa - bogus document provided in order to satisfy the criterion of competent English - public interest criterion 4020 - Tribunal not satisfied that grounds for waiver had been made out - applicant failed to appear at hearing in Federal Circuit Court - primary judge proceeded to hear and determine the application in his absence - whether to do so constituted a denial of procedural…

Jessup, Pagone and Edelman JJ ( 239 FCR 359 )

TAXATION - Meaning of a "unit trust" in Division 6C of Income Tax Assessment Act 1936 (Cth) - Whether definition of "unit" for the purposes of a "prescribed trust estate" can inform the meaning of a "unit trust" - Functional understanding of a "unit trust" - Whether Electrical Industry Severance Scheme is a unit trust

Kenny, Nicholas and Beach JJ ( 116 IPR 54; 240 FCR 85 )

PATENTS - innovation patents - product claims for garden hose - construction of claims - use of ordinary words - plain meaning - infringement - indirect infringement - supply of product with instructions for use - s 117(2)(c) of Patents Act 1990 (Cth) - invalidity - lack of innovative step - ss 7(4) and 18(1A)(b)(ii) of the Act - leave to appeal - leave granted - appeal dismissed

MIGRATION - appeal from Federal Circuit Court - refusal to grant protection visa - where Administrative Appeals Tribunal ("Tribunal") rejected appellant's credibility - whether Tribunal erred in refusing to obtain telephone evidence - where Tribunal found corroborative evidence would not affect outcome - whether finding capricious or unreasonable - no jurisdictional error - appeal dismissed

Robertson, Pagone and Davies JJ ( 329 ALR 385; 236 FCR 520 )

INCOME TAX - whether companies residents of Australia - place of central management and control - relevant principles INCOME TAX - profits from sale of shares - whether on revenue or capital account - where shares agreed to be trading stock INCOME TAX - trading stock - construction of s 70-40(2) of the Income Tax Assessment Act 1997 (Cth) - whether items taken into account for purposes of Division 70 - relevant principles INCOME TAX - shares - whether proved to be held…

Kenny, Bennett and Nicholas JJ ( 115 IPR 461; 328 ALR 458; 238 FCR 27 )

PATENTS - whether leave to appeal under s 158(2) of the Patents Act 1990 (Cth) in respect of judgment of single judge determining an appeal from a decision of the Commissioner - where claimed invention a method and system for computerised collection of information relevant to assessment of a person's competency for recognised qualification standard - whether a patentable invention - whether a manner of manufacture within the meaning of s 6 of the Statute of Monopolies -…

MIGRATION - appeal from the Federal Circuit Court of Australia - partner visa - visa refusal - whether compelling reasons to waive criteria - whether Tribunal failed to consider a claim - Migration Regulations 1994 (Cth) Sch 2, cl 820.211

Dowsett, Kenny and Nicholas JJ ( 116 IPR 21; 237 FCR 483 )

PATENTS - where patentees obtain Australian Register of Therapeutic Goods ("ARTG") registrations for therapeutic goods having particular active components - where such goods are later listed on the Schedule of Pharmaceutical Benefits ("PBS Sch") - where suppliers of generic medicines provide certificates under s 26B(1) of the Therapeutic Goods Act 1989 (Cth) after expiration of data exclusivity period in order to obtain ARTG registrations in respect of their own products…

North Acj, Collier and Flick JJ ( 235 FCR 150 )

MIGRATION - s 48A Migration Act 1958 (Cth) - prior unsuccessful application for protection visa - further application following introduction of complementary protection regime by Migration Amendment (Complementary Protection) Act 2011 (Cth) and Migration Amendment Act 2014 (Cth) - whether further application barred by s 48A where previous application was not based on new criterion - decision of Full Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 …

Mansfield, Kenny, Rares, Jagot and Mortimer JJ ( 328 ALR 637 )

PRACTICE AND PROCEDURE - interlocutory application - whether Full Court should reconsider its original reasons for judgment - application dismissed NATIVE TITLE - right to exclusive possession - whether evidence regarding non-Aboriginal people is relevant - not relevant to the issue of the existence and continuity of traditional laws and customs - right of exclusive possession established based on the evidence of observance of traditional laws and customs by Aboriginal…

Siopis, Flick and Murphy JJ ( 148 ALD 1; 238 FCR 373 )

WORKERS' COMPENSATION - the operation of the exclusion in s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) - causation of injury, disease or aggravation under the Act - whether injury, disease or aggravation suffered as a result of administrative action - whether administrative action taken in a reasonable manner - whether only one result is possible - matter remitted to the Tribunal for rehearing PRACTICE AND PROCEDURE - role of Court hearing an appeal…

MIGRATION - s 36(2)(a) Migration Act 1958 (Cth) - impermissible merits review - no sustainable arguments - appeal dismissed

MIGRATION - appeal from Federal Circuit Court of Australia - whether error on the part of the judge of that Court in finding that no jurisdictional error by the Refugee Review Tribunal had been established

MIGRATION - appeal from decision of Federal Circuit Court - whether jurisdictional error demonstrated

MIGRATION - appeal against Federal Circuit Court decision refusing application for judicial review of decision by Refugee Review Tribunal - whether Tribunal fell into jurisdictional error in failing to consider claims or denying the appellant procedural fairness - where no error in the Court below in finding that claims were not raised by the appellant in the Tribunal, but that Tribunal considered those claims in any event - where no error in the Court below finding that the …

MIGRATION - appeal from decision of the Federal Circuit Court of Australia dismissing application for judicial review of Refugee Review Tribunal decision - Protection (Class XA) visa - no error of law - appeal dismissed PRACTICE AND PROCEDURE - proposed new 'grounds' raised by self-represented appellant without notice in written submissions - proposed grounds lacking any prospects of success - leave to amend refused.

Robertson J ( 238 FCR 251 )

MIGRATION - aged dependent relative visa - finding of fact by Migration Review Tribunal (Tribunal) that at the time of the application for the visa the appellant had been sponsored by only one person - whether appellant dependent on sponsor for a reasonable period - whether the appellant was wholly or substantially reliant on the sponsor for financial support where financial support provided equally by two nieces of the appellant MIGRATION - whether request to Tribunal to…

MIGRATION - appeal from the Federal Circuit Court of Australia - application for a protection visa - claims of fear of persecution in Turkey on the basis of race and imputed political opinion - whether the primary judge erred in not finding that the Tribunal committed jurisdictional error by reaching its conclusions based on speculation or guesswork - whether there is a need for reasonable probative evidence to support the Tribunal's dismissal of claims - whether the primary …

Allsop CJ, Flick and Perram JJ ( 235 FCR 1; 328 ALR 600 )

CONSTITUTIONAL LAW - whether appellants' property acquired contrary to s 51(xxxi) of the Constitution - whether decision of Minister to decline approval constituted acquisition - whether any deprivation and corresponding receipt established - whether claims made in respect of a spes bearing a proprietary character - whether funding agreement between the Commonwealth and New South Wales was an attempt to avoid s 51(xxxi) - whether just terms provided in any event…

Siopis, Flick and Katzmann JJ ( 238 FCR 332 )

PRACTICE AND PROCEDURE - leave to raise new argument on appeal - grounds relied upon before primary Judge abandoned - leave refused - appellant bound by the conduct of his case PRACTICE AND PROCEDURE - duty on primary Judge to go beyond factual and legal issues identified by the parties in public law litigation EXTRADITION - departmental brief - claim for privilege over parts - no denial of procedural fairness ADMINISTRATIVE LAW - public law litigation - duty placed on Judge …

MIGRATION - grounds of appeal raising new matters which were not in issue in the Federal Circuit Court - credibility findings by Tribunal - whether Tribunal acted in a manifestly unreasonable way - whether Tribunal made legal and factual errors

MIGRATION - appeal from a decision of the Federal Circuit Court of Australia ('FCCA') dismissing an application for review of a decision of the Refugee Review Tribunal ('Tribunal') to affirm the first respondent's refusal to grant the appellant's protection visa application - where the appellant claims the FCCA failed to consider if the Tribunal acted in a 'manifestly unreasonable way' and failed to consider the appellant's circumstances

MIGRATION - appeal from Federal Circuit Court on grounds concerning Tribunal decision that were not raised in the application before the Federal Circuit Court - credibility findings by Tribunal - whether the appellant was given clear particulars of information relevant to the Tribunal's decision - whether the decision of the Tribunal was unreasonable

MIGRATION - Appeal from Federal Circuit Court of Australia - no appellable error - no jurisdictional error - s 351 of the Migration Act 1958 (Cth)

MIGRATION - application for extension of time - nature of the right conferred by the India-Nepal Treaty of Peace and Friendship 1950 - correct test under s 36(3) of the Migration Act 1958 (Cth)

Logan, Robertson and Kerr JJ

ADMINISTRATIVE LAW - appeal from decision of a judge of the Court refusing an application for judicial review of decision of the Federal Circuit Court to refuse to extend time under s 477(2) of the Migration Act 1958 (Cth) - whether decision of the Federal Circuit Court involved jurisdictional error - whether appellant was denied procedural fairness in the Federal Circuit Court - relevance of absence of right of appeal - whether the primary judge or the Federal Circuit Court …

Jessup, Buchanan and Rangiah JJ ( 238 FCR 273 )

INDUSTRIAL LAW - Adverse action - Dismissal of employee - Reasons for dismissal - Onus of disproof of existence of proscribed reasons cast upon employer - Whether discharged - Direct evidence of decision-maker - Significance of employer's failure to call some persons who conferred with decision-maker - Whether this meant that onus had not been discharged - Finding at trial that onus had been discharged - Decision-maker's evidence as to his reasons accepted - Whether primary…

MIGRATION - appeal against Federal Circuit Court decision refusing application for judicial review of decision by Refugee Review Tribunal - whether primary judge failed to find that the Tribunal fell into jurisdictional error in failing to consider whether there was a real risk that the appellant would suffer degrading treatment or punishment constituting "significant harm" by reason of the enactment of the Sri Lankan Immigrants and Emigrants Act - where argument was not…

Bennett, Katzmann and Davies JJ ( 115 IPR 421; 327 ALR 630 )

TRADE MARKS -- where primary judge made findings of trade mark infringement and consequential orders -- whether primary judge erred in considering the use of a logo in making his findings of infringement when that logo was not used in an actual sale -- "in physical or other relation to" in Trade Marks Act 1995 (Cth) s 7(4) -- whether primary judge failed to consider the "proviso" or qualification contained in s 120(2) -- whether primary judge erred in finding that the…

Kenny, Robertson and Pagone JJ ( 242 FCR 96 )

INCOME TAX - appellant participated in profit participation schemes as employee of company group in foreign countries and in Australia - employee allocated "profit participation units" (PPUs) and equal number of shares in holding company - amount payable to appellant on termination of employment - whether amount assessable as ordinary income or as a capital gain - whether amount deferred compensation - PPUs a mechanism for calculation of amount of profit share to be paid to…

Kenny, Besanko & Perram JJ

MIGRATION - appeal from decision of Federal Circuit Court of Australia - visa application made by migration agent said to be fraudulent - whether migration agent acted fraudulently or by mistake or on instructions - whether, in any event, s 48(1) of the Migration Act 1958 (Cth) would operate so as to render proceeding inutile

Rares, Logan and McKerracher JJ ( 234 FCR 458; 330 ALR 598 )

ADMIRALTY- legal consequences of entries relating to registration of ship on Australian Register of Ships under Shipping Registration Act 1981 (Cth) - closure of registration of ship on Register - whether Register serves as evidence of title or creates title - whether unlawful and erroneous entry on Register ought be rectified under s 59 - where primary judge made declaration that Registrar not entitled to close registration of vessel under s 66 and that entry doing so was…

MIGRATION - application for protection visa - whether error demonstrated in judgment of Federal Circuit Court in quashing decision of the Refugee Review Tribunal PRACTICE AND PROCEDURE - leave to adduce evidence on appeal - discussion of relevant principles - leave refused

Bennett, Nicholas and Yates JJ ( 114 IPR 479; 234 FCR 306 )

PATENTS - construction of claim - whether claim to a (+)-enantiomer includes a further integer or limitation of isolation or purity such that it is no longer to a pharmaceutical substance per se - whether extension of term of the Patent should be granted

MIGRATION - Protection (Class XA) visa - refusal of visa application by delegate of Minister - decision of delegate upheld by Refugee Review Tribunal - dismissal of application for judicial review of Tribunal decision by Federal Circuit Court - appeal from Federal Circuit Court - whether jurisdictional error in decision of Tribunal - consideration of complementary protection - real risk test - illogicality - appeal dismissed

Tracey, Murphy and Mortimer JJ ( 234 FCR 180 )

MIGRATION - conduct of joint hearing by Tribunal - joint hearing of the applications of the applicant and his brother - whether Tribunal erred by excluding the applicant from the joint hearing while his brother gave evidence - Tribunal has discretion to obtain evidence in the absence of an applicant subject to requirements of procedural fairness - exercise of discretion not legally unreasonable

Rares, Perram and Griffiths JJ ( 326 ALR 641; 234 FCR 1 )

MIGRATION - appeals from decisions of Federal Circuit Court - whether the processes adopted by the Department for considering consequences of release of personal information of protection visa applicants in immigration detention procedurally fair - whether s 197C of the Migration Act 1958 (Cth) prevents consideration of non-refoulement claims - whether s 197C applied in instant cases - whether Federal Circuit Court had jurisdiction to consider applications in question -…

Collier, Griffiths and Mortimer JJ

ADMINISTRATIVE LAW - appeal from primary judge's refusal to extend time in which to appeal from and seek review of purported decisions and conduct by Tribunal - whether primary judge erred in finding appellant failed to identify decisions for the purposes of an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) - whether primary judge erred in finding appellant failed to identify decisions for the purposes of judicial review PRACTICE AND PROCEDURE -…

MIGRATION - appeal from Federal Circuit Court - dismissal of applications for review of decision of Assistant Minister and extension of time - Migration Review Tribunal affirmed decision under review in absence of appellants - failure to provide evidence of competent English - no jurisdiction to hear appeal from Federal Circuit Court dismissing application for extension of time - no appealable error in Federal Circuit Court decision

Logan J ( 235 FCR 133 )

MIGRATION - judicial review - procedural fairness - appeal from Federal Circuit Court dismissing application for judicial review of Refugee Review Tribunal (Tribunal) decision refusing to grant appellant protection visa - leave granted to raise ground of appeal not raised below - where appellant claimed persecution based on marriage into higher caste - appellant's evidence as to having married shortly before travelling to Australia inconsistent with much earlier date on…

MIGRATION - appeal from Federal Circuit Court - protection visa - failure of Tribunal to consider various integers - appeal dismissed

MIGRATION - appeal from Federal Circuit Court - alleged error in failing to conclude that Refugee Review Tribunal decision unreasonable - material before Tribunal reasonably supported conclusion reached as to absence of bases claimed for fear of persecution if returned to India - appeal dismissed

PRACTICE AND PROCEDURE - where appellants seek stay of primary judge's order vacating interlocutory injunction granted to appellants in proceeding for patent infringement - where relevant claims of patent held invalid - principles governing application for stay pending appeal - consideration of strength of appeal and balance of convenience - relevant considerations where respondent is supplier of generic pharmaceutical product seeking to list its products on Pharmaceutical…

Beach J ( 238 FCR 509 )

BANKRUPTCY AND INSOLVENCY- appeal from Federal Circuit Court - appeal against dismissal of application for review of sequestration order - alleged irregularity of Magistrates' Court judgment concerning judgment debt - whether Court should go behind the judgment - warrant to seize property - return of warrant unsatisfied - act of bankruptcy - separate Running Balance Account deficit debt - whether owing - appeal dismissed

MIGRATION - Protection (Class XA) Visa - appeal from decision of Federal Circuit Court - no error of law - appeal dismissed

MIGRATION - appeal from Federal Circuit Court - whether jurisdictional error demonstrated in Refugee Review Tribunal's reasons - whether Tribunal properly dealt with complementary protection claims - whether Tribunal's findings as to appellant's credibility irrational

Besanko, McKerracher and Pagone JJ ( 327 ALR 602; 235 FCR 410; 151 ALD 206 )

PRACTICE AND PROCEDURE - application for leave to appeal - whether there was sufficient doubt about the correctness of the decision under challenge - whether the appellant would suffer substantial injustice if leave was refused and the decision was wrong.

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EVIDENCE - letter of request to take evidence issued to judicial authorities of Israel under s 7 of the Foreign Evidence Act 1994 (Cth) - implied obligation at common law not to use documents obtained by means of compulsory …

MIGRATION - appeal from the Federal Circuit Court of Australia - judicial review of a decision to refuse a Protection (Class XA) visa - leave sought to rely on additional ground not argued in the Federal Circuit Court

MIGRATION - appeal from Federal Circuit Court - refusal to grant protection visa - whether jurisdictional error - where appellant was self-represented - no necessary entitlement to legal representation - appeal dismissed

MIGRATION - Protection (Class XA) Visa - Appeal from decision of Federal Circuit Court - No error of law - Appeal dismissed

MIGRATION - application for protection visa - appeal from decision of the Federal Circuit Court of Australia - fear of persecution on basis of refusal to enter into an arranged marriage - whether Tribunal denied the appellant procedural fairness by failing to take into account a magazine article before making its decision - appeal dismissed.

MIGRATION - procedural fairness - decision by Migration Review Tribunal (Tribunal) that appellant did not satisfy criterion for a skilled residence visa because of false or misleading statement given in respect of skills assessment - where Tribunal refused appellant's application for disclosure of particular written materials on privacy and public interest grounds - judicial review application alleging breach of s 362A of the Migration Act 1958 (Cth) dismissed by Federal…

MIGRATION - judicial review - appeal from Federal Circuit Court dismissing application for judicial review of Refugee Tribunal (Tribunal) decision refusing to grant appellant protection visa - whether Tribunal filed to consider an integer of appellant's claim - whether Tribunal failed to comply with s 414 of the Migration Act 1958 (Cth) in no giving proper consideration to the appellant's mental health - Tribunal engaged with appellant's claim and evidence as to his mental…

Wigney J ( 238 FCR 577 )

MIGRATION - visas - refusal of visa application by a delegate of the Minister for Immigration and Border Protection - review of delegate's decision in the Migration Review Tribunal - where the Migration Review Tribunal held it did not have jurisdiction to entertain application as prescribed fee had not been paid pursuant to s 347(1) of the Migration Act 1958 (Cth) - application filed in Federal Circuit Court pursuant to s 476 of the Migration Act 1958 (Cth) - where primary…

Allsop CJ, Davies J and Wigney J ( 324 ALR 202; 234 FCR 367 )

COMPETITION - appeal - whether appellant travel agent attempted to induce specific airlines to make a contract, arrangement or arrive at an understanding which had the purpose or effect of substantially lessening competition in a market - consideration of relevant market - characterisation of relevant services supplied by airlines and travel agents - whether airlines and travel agents competed in a market for booking and distribution services, or whether the only relevant…

MIGRATION - appeal from decision of Federal Circuit Court dismissing application for judicial review of decision of Refugee Review Tribunal - decision of delegate of Minister to refuse Protection (Class XA) visa

North, Bromberg and White JJ ( 252 IR 69; 240 FCR 578 )

APPEAL AND NEW TRIAL - leave to argue ground of appeal not raised before primary judge - permission to raise argument not advanced at trial - when may new argument be advanced on appeal - expedient in interests of justice to allow new argument - failure to raise argument at trial INDUSTRIAL LAW - right to deduct payments made from award entitlements - set-off of payments - off-set of award entitlements against payments made - method of calculation of underpayment of award…

MIGRATION - appeal from decision of Federal Circuit Court dismissing application for review of Refugee Review Tribunal's decision - whether Tribunal's decision vitiated by jurisdictional error

Rangiah J ( 241 FCR 419 )

BANKRUPTCY AND INSOLVENCY - appeal against refusal of application to set aside bankruptcy notice - whether appellant should be permitted to raise new argument on appeal - whether transitional legislative provisions operate to transfer debt to respondent - where in truth and reality no debt is owed to respondent - appeal allowed

Edmonds, Logan and Pagone JJ

INCOME TAX - research and development ("R&D") expenditure - whether taxpayer eligible for tax offset under Div 3 of Pt III (repealed) of Income Tax Assessment Act 1936 (Cth) - whether relevant expenditure "incurred" for purposes of s 73B(14)(a) - competency of appeal from Tribunal's decision - whether that appeal was on a question of law - whether contingencies to which obligation was subject went only to timing of payment or to the existence of the obligation itself -…

Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ ( 322 ALR 330; 233 FCR 397; 148 ALD 238 )

WORKERS COMPENSATION - whether the appellant suffered an "injury" within the definition of s 4(1)(b) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) - whether the primary judge erred in failing to identify errors of law in the Administrative Appeals Tribunal's (Tribunal) decision - whether the Tribunal erred in the construction of the word "injury" by giving meaning to the word only by reference to certain specific remarks made in Kennedy Cleaning Services Pty…

Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ ( 322 ALR 254; 147 ALD 265; 233 FCR 315 )

ADMINISTRATIVE LAW - appeal from the Administrative Appeals Tribunal (Tribunal) - scope of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) - whether grounds of appeal to primary judge stated question or questions of law - whether appeal competent - whether question of law may include so-called mixed question of fact and law - whether in exercising its appellate jurisdiction on an appeal from a judge of the Court, the Court may deal with question or questions of…

Mansfield, Kenny, Rares, Jagot and Mortimer JJ ( 322 ALR 199; 231 FCR 456 )

NATIVE TITLE - right of exclusive possession - ability to effectively exclude other people - permission required to be or do things on country - observance of the custom of exclusion by the relevant society - where no enforcement of customs against non-indigenous persons - spiritual or physical sanctions for contravention - whether there can be no recognition of rights and interests under the common law of Australia - whether traditional rights and customs shared with…

MIGRATION - appeal from decision of Federal Circuit Court dismissing application for review of Refugee Review Tribunal's decision - whether Tribunal's decision vitiated by jurisdictional error

Allsop CJ ( 150 ALD 456 )

MIGRATION - whether the Refugee Review Tribunal impermissibly had regard to findings and evidence from an earlier Tribunal's decision record that had been quashed for reasonable apprehension of bias - whether the Tribunal erred in the characterisation and analysis of the "particular social group" - whether the primary judge erred in finding that the "real chance test" had been properly applied by the Tribunal - whether the Tribunal's findings sufficiently engaged s 36(3) of…

Jessup, Perram and Bromberg JJ ( 231 FCR 150 )

INDUSTRIAL LAW - adverse action - employer adversely changes employee's shift due to variable attendance record - variable attendance record largely constituted by instances of employee taking permissible leave under relevant industrial instrument - employer's subjective reasons for shift change related to variable attendance record rather than taking of permissible leave - whether trial judge correct to conclude no adverse action - whether open to trial judge to conclude…

MIGRATION - application for protection visa - whether error demonstrated in judgment of Federal Circuit Court dismissing application for judicial review

MIGRATION - application for protection visa - whether error demonstrated in judgment of Federal Circuit Court dismissing application for judicial review

MIGRATION - claimed perception of association of appellant with political and military organisation - claim for protection under Migration Act 1958 (Cth) - conceded error of Tribunal in discussion and description of detention order - view of Tribunal that detention order not authentic - view taken by Tribunal coloured its view of appellant's credibility - whether error of Tribunal in relation to this evidence so fundamental to decision that constituted jurisdictional error - …

MIGRATION - application for protection (class XA) visa - appellant a Sri Lankan citizen of Tamil ethnicity - claimed to fear serious harm if returned to Sri Lanka due to ethnicity, imputed affiliation with the Liberation Tigers of Tamil Eelam ('LTTE'), membership of social group of young, single Tamil men and membership of social group of failed Tamil asylum seekers - adverse credibility findings made - whether appellant mentally and physically fit to participate in hearing…

Tracey, Griffiths and Mortimer JJ ( 230 FCR 1 )

ADMINISTRATIVE LAW - appeal from the Federal Circuit Court of Australia - where application for judicial review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act') commenced in the FCCA - where notice of appeal could have been filed under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) in the Federal Court - whether the FCCA erred in dismissing the application under s 10(2)(b)(ii) of the ADJR Act - whether discretion under s…

Griffiths J ( 231 FCR 204 )

MIGRATION - appeal from the Federal Circuit Court of Australia - whether the FCCA erred by finding that the Refugee Review Tribunal had complied with s 424A(1)(b) of the Migration Act 1958 (Cth) - what constitutes "information" for the purposes of s 424A(1)

Flick J ( 232 FCR 433 )

MIGRATION - invitation to attend hearing - failure to attend - no denial of an opportunity to give evidence - no requirement to ensure attendance - no failure to consider claims made

Collier, Griffiths and Mortimer JJ

PRACTICE AND PROCEDURE - applications for stay or adjournment pending removal applications under s 40 Judiciary Act 1903 (Cth) - stay not necessary to preserve subject matter - consideration of prospects of success of removal applications - applications dismissed PRACTICE AND PROCEDURE - applications for adjournment for health-related reasons - consideration of s 37M Federal Court of Australia Act 1976 (Cth) - consideration of other relevant factors including persuasiveness…

MIGRATION - appeal from decision of the Federal Circuit Court of Australia - application for protection visa - fear of persecution on basis of involvement in political activities in India - whether decision of the Tribunal was unreasonable - consideration by the Tribunal of s 91R of the Migration Act 1958 (Cth) - leave to appeal in terms of a new ground of appeal refused - appeal dismissed

MIGRATION - appeal from the Federal Circuit Court of Australia - judicial review of decision to refuse a Sub-class 572 Student visa - no appellable error made out

MIGRATION - appeal from the Federal Circuit Court of Australia - judicial review of decision to refuse a further Subclass 572 Student Visa - no appellable error made out

Is standard multivariate analysis sufficient in clinical and epidemiological studies?

Clinical tests and epidemiological studies often produce large amounts of data, being multivariate in nature. The respective analysis is, in most cases, of importance comparable to the clinical and sampling tasks. Simple, easily interpretable techniques from chemometrics provide most of the ingredients to carry out this analysis. We have selected available data from different sources pertaining to cancer diagnosis and incidence: (1) cytological diagnosis of breast cancer, (2) classification of breast tissues through parameters obtained from impedance spectra and (3) distribution of new cancer cases in the United States. Hierarchical cluster analysis (HCA) is needed especially in cases where there is no a priori identification of classes, suggesting a structure of the data based on clusters. These clusters or the classes, are then further detailed and rationalized by principal component analysis (PCA). Partial least squares (PLS) and linear discriminant analysis (LDA) provide further insight into the systems. An additional step for understanding the data set is the removal of less characteristic data (NR) using a density-based approach, so as to make it more clearly defined. Results clearly reveal that breast cytology diagnosis relies on variables conveying mostly the same type of information, being thus interchangeable in nature. In the study on tissue characterization by electrical measurements, the distribution of the different types of tissues can be easily constructed. Finally, the distribution of new cancer cases possesses clear, easily unravelled, geographical patterns.

Graphical abstract

Highlights

► PCA and HCA techniques are clearly advisable in cancer diagnosis studies. ► A self-consistent noise reduction filter emphasizes the underlying patterns. ► Cytology-based indicators convey mostly the same type of information. ► Benign/malign discrimination depends on the type of tissue under analysis. ► The incidence of cancer types in the US presents clear geographical patterns.

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