Special Leave Applications to the High Court - 2021 Judgments
29 Nov 2021
: Gupta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1494
Farrell J
MIGRATION - appeal from a decision of the Federal Circuit Court of Australia dismissing application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of a delegate of the Minister not to grant a Partner Residence (Class BS) visa - where notice of appeal filed before written reasons available - where notice of appeal states an amended notice of appeal will be filed when written reasons available - where appellant did not file…
Status of Appeal to High Court -
16 March 2022: HCA - Special leave application dismissed [2022] HCASL 50
19 Nov 2021
: Commissioner of Patents v Aristocrat Technologies Australia Pty Ltd [2021] FCAFC 202
Middleton, Perram and Nicholas JJ
(
163 IPR 231 ; 396 ALR 380
)
PATENTS - manner of manufacture - electronic gaming machines ('EGMs') - innovation patent for EGMs and methods for providing feature games - application for leave to appeal from decision of primary judge concluding claims were to a manner of manufacture within the meaning of s 18 of Patents Act 1990 (Cth) - patentability of 'computer-implemented inventions' - where primary judge applied a two-stage inquiry for patentability - whether two-stage inquiry correct
Status of Appeal to High Court -
10 March 2022: HCA - Special leave application granted [2022] HCATrans 25
11 Nov 2021
: Gillera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1396
Thomas J
MIGRATION - appeal from the Federal Circuit Court of Australia - where appellant purports that withdrawal of visa application was not valid - Where Federal Circuit Court found that it did not have jurisdiction to determine application and, in any event, found that withdrawal was valid - whether Federal Circuit Court had jurisdiction under the Migration Act 1958 (Cth) to determine application - consideration of whether withdrawal of visa application was a "migration decision" …
Status of Appeal to High Court -
10 March 2022: HCA - Special leave application dismissed with costs [2022] HCASL 37
28 Oct 2021
: EVQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1308
Nicholas J
MIGRATION - refusal of application for protection visa - issue as to whether appellant could relocate to avoid harm that may be inflicted by deceased roommate's family - whether Tribunal was required to consider appellant's religion and ethnicity for the purpose of assessing whether the appellant could be tracked down in any part of India - whether claim that appellant's religion and ethnicity made it easier to track him down was a claim or issue that clearly emerged from…
Status of Appeal to High Court -
10 March 2022 - HCA Special leave application dismissed [2022] HCASL 33
27 Oct 2021
: Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1305
Griffiths J
MIGRATION - decision to cancel appellants' temporary skilled work visas - appeal from Federal Circuit Court dismissing application for judicial review - where appellants' allege primary judge inhibited legal representative from adequately presenting case - where primary judge did not call on respondent's counsel and delivered ex tempore judgment - whether allegation of apprehended bias
Status of Appeal to High Court -
16 March 2022: HCA - Application dismissed with costs [2022] HCASL 60
19 Oct 2021
: Williams v Minister for Immigration and Border Protection [2021] FCAFC 182
Allsop CJ, White and Rofe JJ
MIGRATION - review of decision under s 501CA of the Migration Act 1958 (Cth) refusing to revoke cancellation decision - where Department failed to provide the appellant with police charge brief in relation to a pending charge despite attempts to obtain brief - where Department refused to grant extension of time to make representations in order that the appellant could obtain the brief - whether denial of procedural fairness - whether Minister obliged to have regard to most…
Status of Appeal to High Court -
16 March 2022: HCA - Special leave application dismissed [2022] HCASL 44
13 Oct 2021
: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EBD20 [2021] FCAFC 179
Perram, Thawley and Stewart JJ
MIGRATION - appeal from application for review of decision of Minister to refuse to grant a Protection (Class XA) visa - Minister not satisfied that the visa applicant passed the character test - Minister exercised discretion under s 501 of the Migration Act 1958 (Cth) to refuse visa - where visa applicant previously subject of cancellation of a Refugee and Humanitarian visa - where Administrative Appeals Tribunal had concluded in review of visa cancellation that there were…
Status of Appeal to High Court -
10 March 2022: HCA - Special leave application dismissed with costs [2022] HCASL 39
29 Sep 2021
: EGW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1177
Farrell J
MIGRATION - appeal from a decision of the Federal Circuit Court of Australia - where primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority to affirm a decision of a delegate of the Minister not to grant the appellant a Safe Haven Enterprise visa (subclass XE-790) - where the Authority's decision record states that it was satisfied that expert reports provided to it by the appellant concerning the risk to Shia/Hazaras …
Status of Appeal to High Court -
16 March 2022: HCA - Special leave application dismissed with costs [2022] HCASL 56
27 Sep 2021
: Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Yates, Griffiths and Moshinsky JJ
(
394 ALR 347
)
MIGRATION - appeal from a decision of a single Judge of the Federal Court of Australia dismissing the appellant's application for judicial review of a decision of the Administrative Appeals Tribunal - where Administrative Appeals Tribunal upheld a decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs under s 501CA(4) of the Migration Act 1958 (Cth) to refuse to revoke the cancellation of the appellant's visa - meaning of the words…
Status of Appeal to High Court -
10 February 2022: HCA - Special leave to appeal dismissed with costs [2022] HCASL 9
27 Sep 2021
: EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Yates, Griffiths and Moshinsky JJ
(
395 ALR 36
)
MIGRATION - judicial review of decision of Administrative Appeals Tribunal holding that it did not have jurisdiction to review decision not to revoke visa cancellation decision under s 501CA(4) of Migration Act 1993 (Cth) - where representations were not "received" by Minister within 28 days under r 2.55 of Migration Regulations 1994 (Cth) - where Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 held "made…
Status of Appeal to High Court -
10 February 2022: HCA - Special leave application dismissed with costs [2022] HCASL 9
27 Aug 2021
: Kareem v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 1016
Bromwich J
MIGRATION - appeal of from decision of Federal Circuit Court of Australia to dismiss an application for judicial review of a decision of the Administrative Appeals Tribunal - Tribunal affirmed a decision of a delegate of the Minister to refuse the grant of a Partner (Provisional) (Class UF) (subclass 309) visa - where appellant is sponsor of partner visa applicant - where decision to affirm delegate's decision made principally upon the basis of not being satisfied that the…
Status of Appeal to High Court -
4 November 2021: HCA - Special leave application dismissed [2021] HCASL 211
27 Aug 2021
: FNV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1025
Nicholas J
MIGRATION - where appellants failed to appear at hearing of application for review of delegate's decision refusing to grant appellants protection visas - where application dismissed on basis of non-appearance - where the appellants' migration agent did not see invitation due to administrative mistake - where Administrative Appeals Tribunal sent SMS reminders to first appellant notifying her of hearing date - where no explanation provided to Tribunal in relation to failure to …
Status of Appeal to High Court -
9 December 2021: HCA - Special leave application dismissed with costs [2021] HCASL 248
17 Aug 2021
: CGS19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 968
Rangiah J
MIGRATION - Migration Act 1958 (Cth) - application for judicial review of a decision of the Federal Circuit Court of Australia - whether the Tribunal conflated membership of an ethnic group with membership of a criminal group - whether the Tribunal misapplied the statutory criteria and relevant principles when making an adverse credibility finding against the appellant - whether the Tribunal conflated its findings under the refugee criterion and the complementary protection…
Status of Appeal to High Court -
17 February 2022: HCA - Special leave application dismissed [2022] HCASL 14
12 Aug 2021
: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BOA18 [2021] FCA 943
Besanko J
MIGRATION -- appeal from orders made by Federal Circuit Court of Australia granting respondents' amended application for judicial review of a decision of Immigration Assessment Authority -- where Authority affirmed a decision of a delegate of Minister to refuse to grant protection visas to respondents -- where first respondent made late claims relating to involvement with Liberation Tigers of Tamil Eelam -- where respondents brought successful application for judicial review …
Status of Appeal to High Court -
17 February 2022: HCA - Special leave application dismissed with costs [2022] HCASL 25
5 Aug 2021
: Zhang v Yan [2021] FCA 905
O'Bryan J
BANKRUPTCY AND INSOLVENCY - appeal against a decision of the Federal Circuit Court of Australia dismissing an application for review of a sequestration order made by a registrar of the Federal Circuit Court - where sequestration order based on a judgment debt obtained in the Supreme Court of Victoria - where primary judge determined that it was appropriate to "go behind" the judgment debt to assess whether the debt was owing - circumstances in which a bankruptcy court is…
Status of Appeal to High Court -
2 December 2021: HCA - Special leave application dismissed [2021] HCASL 228
5 Aug 2021
: TechnologyOne Limited v Roohizadegan [2021] FCAFC 137
Rangiah, White and O'Callaghan JJ
(
309 IR 262 ; 174 ALD 224
)
INDUSTRIAL LAW - adverse action - where primary judge found that respondent was dismissed in contravention of s 340(1) of the Fair Work Act 2009 (Cth) - appeal against order to that effect on the grounds that the judge failed to provide adequate reasons for his conclusion and did not answer the question whether the appellants had established that the adverse action was not taken for a reason proscribed by the Fair Work Act 2009 (Cth), or for reasons which included such a…
Status of Appeal to High Court -
9 December 2021: HCA - Special leave application dismissed with costs [2021] HCASL 249
4 Aug 2021
: Advanced Holdings Pty Limited as Trustee for The Demian Trust v Commissioner of Taxation [2021] FCAFC 135
Logan, McKerracher and Perram JJ
TAXATION - income tax - deductibility of borrowings and related fees - whether repayments of borrowings and fees were on revenue or capital account - where company is in the business of property development and property is the company's trading stock - where original loans obtained for the purchase of the properties were repaid from a facility agreement - where liabilities under the facility agreement were then repaid from the proceeds of sale of the properties - whether a…
Status of Appeal to High Court -
9 December 2021: HCA - Special leave dismissed with costs [2021] HCASL 251
30 Jul 2021
: Frugtniet v Secretary, Department of Social Services [2021] FCAFC 127
O'Callaghan, Wheelahan and Snaden JJ
(
173 ALD 22 ; 285 FCR 159
)
SOCIAL SECURITY - appeal from the primary judge's order dismissing an appeal from a decision of the Tribunal which affirmed a decision of a delegate of the Secretary to apply an amount of family tax benefit due to the appellant in partial discharge of the appellant's indebtedness to the Commonwealth - where the appellant's entitlement to family tax benefit arose from the Secretary's failure to give the required notice to the appellant prior to the recovery of overpayments of …
Status of Appeal to High Court -
9 December 2021: HCA - Special leave application dismissed [2021] HCASL 240
26 Jul 2021
: SZQKE v Minister for Immigration and Border Protection [2021] FCA 833
Davies J
MIGRATION - Independent Treaties Obligations Assessment (ITOA) - duty to put appellant on notice of information and sources of information - whether there was a denial of procedural fairness in failing to put country information to the appellant for comment during an ITOA interview - appeal dismissed PRACTICE AND PROCEDURE - application for leave to adduce fresh evidence on appeal - new evidence that constitutes a departure from the case below where appellant was represented …
Status of Appeal to High Court -
9 December 2021: HCA - Special leave application dismissed with costs [2021] HCASL 246
16 Jul 2021
: Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Katzmann, Derrington and O'Bryan JJ
(
285 FCR 187
)
MIGRATION LAW - decision of the Administrative Appeals Tribunal not to revoke mandatory cancellation of visa under s 501CA(4) of the Migration Act 1958 (Cth) - whether Tribunal erred in formation of state of satisfaction for the purpose of s 501CA(4) - whether primary considerations stated in Ministerial Direction 79 were mandatory considerations in forming state of satisfaction - whether mandatory considerations included best interests of appellant's child - whether best…
Status of Appeal to High Court -
10 March 2022; HCA - Special leave application dismissed with costs [2022] HCASL 38
8 Jul 2021
: ALO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 760
Anderson J
MIGRATION - appellant is a citizen of Pakistan - claimed to fear harm, including death, assault, harassment and discrimination on account of his religion - claims were accepted by the Tribunal MIGRATION - ground 1 - whether Federal Circuit Court fell into error by failing to find that the Tribunal misapprehended or misapplied test in relation to "complementary protection" - no error - ground dismissed MIGRATION - ground 2 - whether the Federal Circuit Court fell into error…
Status of Appeal to High Court -
11 November 2021: HCA - Special leave application dismissed with costs [2021] HCASL 220
1 Jul 2021
: Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (No 2) [2021] FCAFC 120
Katzmann, Beach and Markovic JJ
PRACTICE AND PROCEDURE - appeal - form of remitter to primary judge COSTS - whether in relation to the appeal there is any reason to apportion costs taking account of the parties' success or failure on certain issues - costs of interlocutory application at first instance - orders made
Status of Appeal to High Court -
7 October 2021: HCA - Special leave application dismissed with costs [2021] HCASL 197
29 Jun 2021
: Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 713
Nicholas J
MIGRATION - where appellant failed to appear at hearing of application for review of delegate's decision cancelling his visa - where Administrative Appeals Tribunal dismissed application for review pursuant to s 362B(1A)(b) of the Migration Act 1958 (Cth) ("the Act") - where applicant applied for reinstatement of dismissed application - whether the Tribunal's decision confirming dismissal under s 362B(1C)(b) was unreasonable - whether Tribunal failed to have regard to…
Status of Appeal to High Court -
7 October 2021: HCA - Special leave application dismissed [2021] HCASL 193
15 Jun 2021
: Flageul v WeDrive Pty Ltd [2021] FCAFC 102
Flick, Murphy and O'Callaghan JJ
(
285 FCR 255
)
INDUSTRIAL LAW - claims made under ss 340 and 358 of the Fair Work Act 2009 (Cth) - whether primary judge erred in dismissing claims CORPORATIONS LAW - claim made under s 232 of the Corporations Act 2001 (Cth) - whether primary judge erred in dismissing claim APPEALS - findings of fact - not shown to be glaringly improbable - role of appellate court in reviewing findings of fact
Status of Appeal to High Court -
4 November 2021: HCA - Special leave application dismissed with costs [2021] HCASL 213 10 February 2022: HCA - Special leave application dismissed with costs [2022] HCASL 10
10 Jun 2021
: Peter Greensill Family Co Pty Ltd (Trustee) v Commissioner of Taxation [2021] FCAFC 99
Davies, Moshinsky and Colvin JJ
(
285 FCR 410
)
TAXATION - interaction between div 855 of the Income Tax Assessment Act 1997 (Cth) (1997 Act), sub-div 115-C of the 1997 Act and div 6 and div 6E of the Income Tax Assessment Act 1936 (Cth) (1936 Act) considered - where capital gains made by a resident trust estate from non-taxable Australian property distributed to non-resident beneficiary - where trustee assessed in respect of those gains pursuant to s 115-220 of the 1997 Act and s 98 of the 1936 Act - where foreign…
Status of Appeal to High Court -
21 February 2022: HCA - Special leave application refused with costs [2022] HCATrans 19
8 Jun 2021
: DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97
Collier, Markovic and Anastassiou JJ
(
285 FCR 1
)
MIGRATION - appeal from Federal Court of Australia - application for judicial review of decision of the Administrative Appeals Tribunal affirming decision not to revoke mandatory cancellation of Appellant's partner visa - whether the Tribunal failed to consider the impact on a victim of the cancellation of the visa - whether there was denial of procedural fairness to the Appellant - appeal dismissed
Status of Appeal to High Court -
9 December 2021: HCA - Special leave application dismissed [2021] HCASL 243
3 Jun 2021
: BHP Group Limited v Impiombato [2021] FCAFC 93
Middleton, McKerracher and Lee JJ
(
151 ACSR 634
)
REPRESENTATIVE PROCEEDINGS - shareholder class action - claims brought on behalf of non-resident shareholders - dual listed company structure - whether provisions of Pt IVA of the Federal Court of Australia Act 1976 (Cth) capable of application to group members not resident in Australia - procedure under Pt IVA - consideration of the meaning of "claim" under s 33C - question of jurisdiction better defined as whether Pt IVA permits an applicant to define group membership as…
Status of Appeal to High Court -
18 February 2022: HCA - Special leave application granted [2022] HCATrans 13
28 May 2021
: Ambrose v Commonwealth of Australia [2021] FCAFC 88
Collier, Griffiths and Abraham JJ
(
173 ALD 1
)
SOCIAL SECURITY - appeal from decision of primary judge to dismiss application for judicial review under Administration Decisions (Judicial Review) Act 1977 (Cth) - appellant's Newstart allowance suspended for non-compliance with mutual obligation requirements under s 42AF of Social Security (Administration) Act 1999 (Cth) -legislative scheme of Pt 3, Div 3AA considered - where suspension decision made under s 42AF(1)(a) - where allowance reinstated and appellant repaid…
Status of Appeal to High Court -
9 September 2021: HCA - Special leave application dismissed [2021] HCASL 178
21 May 2021
: Davidson v Official Receiver [2021] FCAFC 73
Allsop CJ, Markovic and Anastassiou JJ
(
286 FCR 148
)
BANKRUPTCY AND INSOLVENCY - appeal from Federal Circuit Court of Australia - where primary judge dismissed application for summary judgment to set aside notice issued pursuant to s 139ZQ of the Bankruptcy Act 1966 (Cth) by Official Receiver - where underlying basis for notice issued pursuant to s 139ZQ was to recover transfer at undervalue within meaning of s 120(1) of the Act - whether limitation period in s 127(3) of the Act requires a notice issued pursuant to s 139ZQ to…
Status of Appeal to High Court -
3 December 2021: HCA - Special leave application refused with costs [2021] HCATrans 208
14 May 2021
: DLB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 504
Markovic J
MIGRATION - appeal from a decision of the Federal Circuit Court of Australia dismissing the appellant's application for judicial review - where Immigration Assessment Authority (Authority) affirmed a decision of a delegate of the Minister to refuse a safe haven enterprise visa - whether Authority misunderstood "real chance" test - whether Authority failed to properly consider evidence and submissions relating to appellant's claim - appeal dismissed
Status of Appeal to High Court -
9 September 2021: HCA - Special leave application dismissed [2021] HCASL 183
14 May 2021
: EAI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 506
Katzmann J
MIGRATION -- appeal -- application for judicial review of decision of Immigration Assessment Authority to affirm decision of Minister's delegate to refuse to grant appellant a Safe Haven Enterprise Visa -- whether primary judge erred by finding Authority did not fail to comply with s 473DE of the Migration Act 1958 (Cth) -- whether statement made by appellant in support of invalid protection visa application to which Authority referred but which was not mentioned by delegate …
Status of Appeal to High Court -
9 September 2021: HCA - Special leave application dismissed [2021] HCASL 182
14 May 2021
: Mussalli v Commissioner of Taxation [2021] FCAFC 71
McKerracher, Thawley and Stewart JJ
(
284 FCR 516
)
TAXATION - income tax - deductibility - payments made upon entering into lease and license agreements of franchise restaurants - payments described as prepayments of rent - whether payments were capital in nature or on revenue account - characterisation of advantage sought - where the quantum of the prepayment was calculated without reference to the terms of the lease and license agreements
Status of Appeal to High Court -
12 November 2021: HCA - Special leave application refused with costs [2021] HCATrans 196
11 May 2021
: BDF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 489
Nicholas J
MIGRATION - procedural fairness - where the Secretary provided documents to the Administrative Appeals Tribunal - where the Minister by his delegate made a certificate pursuant to s 438 of the Migration Act 1958 (Cth) in respect of such documents - where the Tribunal did not disclose the existence of the certificate to the appellant and found that the documents were subject to legal professional privilege - where Minister accepted that such non-disclosure amounted to a…
Status of Appeal to High Court -
11 November 2021: HCA - Special leave application dismissed with costs [2021] HCASL 221
10 May 2021
: VicForests v Friends of Leadbeater's Possum Inc [2021] FCAFC 66
Jagot, Griffiths and SC Derrington JJ
(
389 ALR 552 ; 285 FCR 70 ; 174 ALD 1
)
ENVIRONMENT LAW - statutory interpretation of exemption from Part 3 of the Environmental Protection Biodiversity Act 1999 (Cth) (EPBC Act) set out in s 38(1) the Act - whether conduct of forestry operations must be undertaken in accordance with any restrictions, limits, prescriptions, and contents of the Central Highlands Regional Forest Agreement (CH RFA) and the Code of Practice for Timber Production 2014 (Code) to secure the benefit of the exemption ENVIRONMENT LAW -…
Status of Appeal to High Court -
10 December 2021: HCA - Special Leave application refused with costs [2021] HCATrans 215
4 May 2021
: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63
Perram, Moshinsky and Thawley JJ
(
285 FCR 667
)
MIGRATION - protection visa - where the first respondent entered Australia by boat and was taken to what was then thought to be a "proclaimed port" - where the first respondent's case was dealt with for several years on the assumption he was an "unauthorised maritime arrival" - where that assumption was incorrect - where, purportedly pursuant to s 195A of the Migration Act 1958 (Cth), the Minister granted the first respondent a temporary safe haven visa (for one week) and a…
Status of Appeal to High Court -
10 December 2021: HCA - Special Leave application refused with costs [2021] HCATrans 217
23 Apr 2021
: Coal of Queensland Pty Ltd v Innovation and Science Australia [2021] FCAFC 54
Logan, Griffiths and Moshinsky JJ
(
172 ALD 459 ; 285 FCR 286
)
TAXATION - research and development tax offset - where applicant held exploration permit for coal - where coal in the area had high level of ash content and the coal seams were banded - where applicant commenced a series of activities to investigate the nature and economic viability of mining the coal - where the Tribunal found that none of the registered activities were "core R& D activities" within the meaning of s 355-25(1) of the Income Tax Assessment Act 1997 (Cth)…
Status of Appeal to High Court -
2 September 2021: HCA - Application dismissed with costs [2021] HCASL 163
19 Apr 2021
: WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Kenny, Mortimer and Abraham JJ
(
285 FCR 463
)
MIGRATION - appeal from single Judge dismissing application for review of decision of Administrative Appeals Tribunal to refuse to revoke mandatory cancellation of visa on character grounds under s 501A of the Migration Act - proper construction of ss 197C and 198 of the Migration Act - consistency of Ministerial Direction 79 with s 197C, considered - meaning of indefinite detention - appeal dismissed
Status of Appeal to High Court -
12 November 2021: HCA - Special leave application refused with costs [2021] HCATrans 195
9 Apr 2021
: CPQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 329
Kenny J
MIGRATION - appeal from decision of Federal Circuit Court dismissing application for judicial review of a decision of the Immigration Assessment Authority - leave to raise new grounds on appeal - insufficient merit to justify grant of leave - appeal dismissed
Status of Appeal to High Court -
9 September 2021: HCA - Special leave application dismissed [2021] HCASL 174
9 Apr 2021
: Dring v Telstra Corporation Ltd [2021] FCAFC 50
Flick, Rangiah and Wigney JJ
(
304 IR 408 ; 283 FCR 505 ; 172 ALD 305
)
COMPENSATION - claimant falls on wet floor - whether injury arising in course of employment - injury suffered during period of stay at hotel - place at which injury occurred - injury not connected to employment ADMINISTRATIVE LAW - appeal from Administrative Appeals Tribunal - question of law
Status of Appeal to High Court -
2 September 2021: HCA: Special leave application dismissed with costs [2021] HCASL 165
9 Apr 2021
: Epic Games, Inc v Apple Inc (Stay Application) [2021] FCA 338
Perram J
(
151 ACSR 444
)
PRIVATE INTERNATIONAL LAW - application for permanent stay of proceedings alleging contraventions of Competition and Consumer Act 2010 (Cth) ('CCA') Pt IV, Australian Consumer Law ('ACL') s 21 - where exclusive jurisdiction clause requires litigation relating to app developer agreement to occur in Northern District of California - where First Applicant has commenced proceedings against First Respondent in Northern District of California alleging contraventions of United…
Status of Appeal to High Court -
2 December 2021: HCA - Special leave application dismissed with costs [2021] HCASL 234
9 Apr 2021
: Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49
Wigney, Beach and O'Bryan JJ
(
151 ACSR 407 ; 284 FCR 24,
)
CONSUMER LAW - admitted contraventions of s 29(1)(a) of the Australian Consumer Law by appellant Volkswagen Aktiengesellschaft - where regulatory proceedings settled as between the regulator, Australian Competition and Consumer Commission, and Volkswagen and its subsidiaries and affiliates - where the parties jointly proposed an agreed pecuniary penalty as part of the settlement - where the primary judge found that the agreed pecuniary penalty was not appropriate within the…
Status of Appeal to High Court -
12 November 2021: HCA - Special leave application refused with costs [2021] HCATrans 194
9 Apr 2021
: SDCV v Director-General of Security [2021] FCAFC 51
Rares, Bromwich and Abraham JJ
(
389 ALR 372 ; 284 FCR 357 ; 173 ALD 450
)
CONSTITUTIONAL LAW - judicial power of the Commonwealth - challenge to the constitutional validity of s 46(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) - whether s 46(2) of the AAT Act requires the Court to act in a manner that is procedurally unfair - where the applicant appeals on a question of law - where s 46(2) of the AAT Act is to be read in the context of the legislative regime as a whole - whether a practical injustice results - held: s 46(2) of …
Status of Appeal to High Court -
21 February 2022: HCA - Special leave application granted [2022] HCATrans 20
1 Apr 2021
: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2021] FCAFC 48
McKerracher, Burley and O'Callaghan JJ
(
284 FCR 1
)
MIGRATION - refusal by delegate of protection visa on character grounds - where the Administrative Appeals Tribunal set aside the delegate's decision and substituted its own decision granting the respondent a visa - where Tribunal's decision was based on a statutory construction of the Migration Act 1958 (Cth) subsequently held to be erroneous - where the primary judge held that the Tribunal's decision was affected by jurisdictional error but refused to grant relief to the…
Status of Appeal to High Court -
12 November 2021: HCA - Special leave application refused with costs [2021] HCATrans 197
31 Mar 2021
: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46
Charlesworth, Burley and Jackson JJ
(
284 FCR 62
)
MIGRATION - Administrative Appeals Tribunal refusing to decide an application for merits review of a migration decision under s 348 of the Migration Act 1958 (Cth) on the grounds that the application had not been "properly made" - Tribunal finding that application was made after the prescribed statutory time limit expired - Tribunal finding the application was not accompanied by the prescribed fee - Tribunal calculating the time limit from the date upon which the appellant…
Status of Appeal to High Court -
10 December 2021: HCA - Special Leave application refused with costs [2021] HCATrans 218
26 Mar 2021
: AJL15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 289
Collier J
MIGRATION - protection visa - Sri Lanka - Tamil Hindu ethnicity - appeal against decision of Federal Circuit Court of Australia (FCCA) - where primary Judge dismissed the application - interlocutory application to file and rely on amended notice of appeal - interlocutory application to file further evidence - interlocutory applications dismissed - appeal dismissed
Status of Appeal to High Court -
11 November 2021: HCA - Special leave application dismissed with costs [2021] HCASL 222
25 Mar 2021
: Commissioner of the Australian Federal Police v Luppino [2021] FCAFC 43
Besanko, Wigney and Abraham JJ
(
388 ALR 603 ; 284 FCR 233
)
CRIMINAL LAW -- appeal from an order of the primary judge that an order of a magistrate made pursuant to s 3LA of the Crimes Act 1914 (Cth) is invalid -- where an order pursuant to s 3LA was made in respect of a smart phone seized during the execution of a warrant for the search of a person -- whether natural justice attaches to an application under s 3LA and the appellant was entitled to a hearing before the s 3LA Order was made -- statutory construction of s 3LA -- whether …
Status of Appeal to High Court -
5 August 2021: HCA - Special leave application dismissed [2021] HCASL 132
19 Mar 2021
: Commissioner of Taxation v Auctus Resources Pty Ltd [2021] FCAFC 39
McKerracher, Davies and Thawley JJ
(
388 ALR 553 ; 284 FCR 294
)
TAXATION - administrative overpayment made by the Commissioner of Taxation under taxation laws - construction of s 8AAZN of the Taxation Administration Act 1953 (Cth) - assessment power of Commissioner of Taxation - taxpayer "self-assessed" activities as capable of being registered as research and development ("R& D") activities - taxpayer claimed R& D tax offset refund - Innovation and Science Australia subsequently found taxpayer not engaged in R& D activities…
Status of Appeal to High Court -
12 August 2021: HCA - Special leave application dismissed with costs [2021] HCA 155
11 Mar 2021
: Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 197
Perram J
(
389 ALR 431
)
MIGRATION - appeal from Federal Circuit Court dismissal of judicial review application of Administrative Appeals Tribunal ('Tribunal') decision - where Appellant required internationally recognised record of exceptional and outstanding achievement for Distinguished Talent (Residence) (class BX) subclass 858 visa in arts - where evidence given at Tribunal hearing by musical production company that not familiar with Appellant before his audition - whether evidence…
Status of Appeal to High Court -
18 February 2022: HCA - Special leave application refused with costs [2022] HCATrans 17
5 Mar 2021
: Ethicon Sarl v Gill [2021] FCAFC 29
Jagot, Murphy and Lee JJ
(
387 ALR 494
)
CONSUMER LAW - defective goods - urogynaecological medical devices - whether primary judge erred in finding safety of devices not such as persons generally were entitled to expect - whether primary judge erred in finding devices not of merchantable or acceptable quality, or not reasonably fit for purpose within meaning of Trade Practices Act 1974 (Cth) or the Australian Consumer Law - whether primary judge erred in finding respondents' damage caused by defect CONSUMER LAW -…
Status of Appeal to High Court -
5 November 2021: HCA - Special leave application refused with costs [2021] HCATrans 187
4 Mar 2021
: Connor v State of Queensland (Department of Education and Training) [2021] FCAFC 21
Reeves, Perry and Snaden JJ
HUMAN RIGHTS - disability discrimination in education - where appellant alleges respondent discriminated against him in connection with his enrolment at a school, and did so contrary to the requirements of the Disability Discrimination Act 1992 (Cth) (DD Act) - where school suspended, physically restrained and secluded appellant, who exhibited disruptive and violent behaviour -- where behaviour was a consequence of disability - whether primary judgment was a product of an…
Status of Appeal to High Court -
5 August 2021: HCA - Special leave application dismissed [2021] HCASL 129
4 Mar 2021
: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24
Kenny, Bromberg and Anderson JJ
(
284 FCR 455
)
MIGRATION - appeal from Federal Circuit Court - whether primary judge erred in finding that Tribunal's decision was affected by jurisdictional error - appeal allowed - no material breach - notice of contention upheld on apprehended bias ground
Status of Appeal to High Court -
2 September 2021: HCA - Special leave application dismissed with costs [2021] HCASL 164
3 Mar 2021
: Leyonhjelm v Hanson-Young [2021] FCAFC 22
Rares, Wigney and Abraham JJ
(
387 ALR 384 ; 282 FCR 341
)
CONSTITUTIONAL LAW - whether s 16 Parliamentary Privileges Act 1987 (Cth) or Art 9 Bill of Rights 1688 (UK) precludes court hearing evidence or determining whether particular words were spoken in proceedings in Parliament - where dispute about words said by member in Chamber in course of proceedings in Parliament - whether lawful for court to take evidence of member of Parliament for purpose of deciding whether or what words were spoken in proceedings in Parliament - whether …
Status of Appeal to High Court -
17 June 2021: HCA - Special leave application dismissed with costs [2021] HCASL 114
26 Feb 2021
: Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 145
Beach J
MIGRATION - appeal from Federal Circuit Court - reasonable apprehension of bias by Administrative Appeals Tribunal - jurisdictional error - appeal dismissed
Status of Appeal to High Court -
17 June 2021: HCA - Special leave application dismissed [2021] HCASL 108
24 Feb 2021
: One Tree Community Services Inc v United Workers' Union [2021] FCAFC 15
Flick, Bromberg and Kerr JJ
(
387 ALR 193 ; 304 IR 57 ; 173 ALD 222 ; 284 FCR 489
)
CONSTITUTIONAL LAW - judicial power of the Commonwealth - dispute resolution clause (cl 77) in an enterprise agreement made under the Fair Work Act 2009 (Cth) provided for binding arbitration - whether in resolving by arbitration a dispute involving the employer brought pursuant to cl 77, the Fair Work Commission was purporting to exercise judicial power - where employer was not involved in the making of the enterprise agreement but became bound by that agreement by reason…
Status of Appeal to High Court -
12 August 2021: HCA - Special leave application dismissed with costs [2021] HCASL 154
23 Feb 2021
: DAB16 v Minister for Home Affairs (No 2) [2021] FCA 120
Charlesworth J
MIGRATION - costs orders under s 486F of the Migration Act 1958 (Cth) - where previous finding that migration litigation had no reasonable prospect of success - whether contravention of s 486E of the Migration Act 1958 (Cth) by a legal practitioner - whether legal practitioner encouraged migration litigation - whether practitioner gave "proper consideration" to the prospect of success of an appeal - consideration of matters relevant to the exercise of the Court's discretion…
Status of Appeal to High Court -
17 June 2021: HCA - Special leave application dismissed [2021] HCASL 103
16 Feb 2021
: XAD (by her litigation guardian XAE) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 12
Flick, White and Charlesworth JJ
(
283 FCR 189
)
MIGRATION - judicial review - appeal from decision of a single judge of the Court concerning the application of s 46A of the Migration Act 1958 (Cth) in the case of a child born in Australia to unauthorised maritime arrivals - the criteria for the lifting of the bar required to exist at the time of the visa application - appeal dismissed. MIGRATION - the requirement for procedural fairness in the steps taken by the Department after a decision by the Minister to consider…
Status of Appeal to High Court -
12 August 2021: HCA - Special leave application dismissed with costs [2021] HCASL 151
15 Feb 2021
: Endresz v Commonwealth of Australia [2021] FCAFC 18
Griffiths, Thawley and O'Bryan JJ
BANKRUPTCY - appeal from order sequestrating appellant's estate - whether there was in truth and reality a debt owing to the Commonwealth - whether equitable jurisdiction of Supreme Court of the Australian Capital Territory engaged - whether liability under Barnes v Addy unavailable by reason of Auckland Harbour Board v The King - whether liability under Barnes v Addy available when moneys stolen in excess of authority - no error on part of primary judge demonstrated -…
Status of Appeal to High Court -
24 June 2021: HCA - Special leave application dismissed with costs [2021] HCASL 124
12 Feb 2021
: BXT17 v Minister for Home Affairs [2021] FCAFC 9
Markovic, O'Callaghan and Anastassiou JJ
(
283 FCR 248
)
MIGRATION - appeal from a decision of the Federal Circuit Court of Australia - where the Immigration Assessment Authority (Authority) affirmed a decision of a delegate of the Minister to refuse the appellant a protection visa - whether the designation of a person as an "unauthorised maritime arrival" pursuant to s 5AA of the Migration Act 1958 (Cth) (Act) can come to an end - whether the Authority assessed new information in accordance with s 473DD of the Act - whether…
Status of Appeal to High Court -
12 August 2021: HCA - Special leave application dismissed with costs [2021] HCASL 152
3 Feb 2021
: Singh v Fobupu Pty Ltd, in the matter of Singh [2021] FCAFC 14
Rares, Farrell and Stewart JJ
BANKRUPTCY AND INSOLVENCY - whether bankruptcy notice based on judgment of Local Court of New South Wales entered on filing of certificate recording assessment of costs pursuant to orders of New South Wales Civil and Administrative Tribunal valid - whether creditor required to make election between bankruptcy notices to pursue - whether judgments entered in Local Court pursuant to s 78 Civil and Administrative Tribunal Act 2013 (NSW) and ss 70, 71 Legal Profession Uniform…
Status of Appeal to High Court -
12 August 2021: HCA - Special leave application dismissed [2021] HCASL 142
3 Feb 2021
: Bob Brown Foundation Inc v Commonwealth of Australia [2021] FCAFC 5
Griffiths, Moshinsky, SC Derrington JJ
(
386 ALR 1 ; 283 FCR 225
)
ENVIRONMENTAL LAW - Species and habitat protection - Determination of separate question - Whether Tasmanian Regional Forest Agreement properly so characterised for the purposes of the Regional Forest Agreements Act 2002 (Cth), s 6(4) and the Environmental Protection and Biodiversity Conservation Act 1999 (Cth), s 38(1)
Status of Appeal to High Court -
24 June 2021: HCA - Special leave application dismissed with costs [2021] HCASL 125
27 Jan 2021
: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
Markovic J
MIGRATION - appeal from a decision of the Federal Circuit Court of Australia - where the Immigration Assessment Authority affirmed the decision of a delegate of the Minister not to grant the appellant a protection visa - whether the failure to exercise or to consider exercising the power under s 473DC of the Migration Act 1958 (Cth) to get up-to-date country information was unreasonable - whether failure was material - appeal dismissed
Status of Appeal to High Court -
17 June 2021: HCA - Special leave application dismissed with costs [2021] HCASL 118
