MIGRATION – Judicial review – Administrative Appeals Tribunal decision – Business Skills (Residence) (Class DF) visas – where business is a family partnership – whether calculation of business turnover should include or exclude the Goods and Services Tax when determining if threshold amount was reached in the relevant period – whether Tribunal determined ordinary meaning of turnover – whether Tribunal had regard to context and purpose of use of turnover – whether error material - whether jurisdictional error - writs issued WORDS AND PHRASES – “turnover

MIGRATION – refugees – refusal to grant applicant a safe haven enterprise visa – whether Administrative Appeals Tribunal considered applicant’s representations regarding the risk of psychological harm to the applicant posed by indefinite detention

MIGRATION – Application for writ of habeas corpus and declaration that item 4 of Sch 1 to Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Amending Act) is invalid – where previous Full Court judgment held cancellation of applicant’s visa invalid as applicant’s aggregate sentence of 12 months’ imprisonment not within scope of s 501(7)(c) of Migration Act 1958 (Cth) (Act) – where Act subsequently amended by Amending Act with retrospective effect to treat aggregate sentence as equivalent to sentence for single offence for purposes of s 501(7)(c) CONSTITUTIONAL LAW – Whether impugned provisions of Amending Act constitute usurpation of, or interference with, Commonwealth judicial power – whether Amending Act impermissibly purports to “reverse” Full Court judgment – whether Amending Act has effect of withdrawing or fettering entrenched jurisdiction of High Court under s 75(iii) and (v) of Constitution CONSTITUTIONAL LAW – Whether Amending Act extinguishes a cause of action for false imprisonment such that it effects an acquisition of property other than on just terms contrary to s 51(xxxi) of Constitution – where s 3B of Act creates right to receive compensation where “this Act” would otherwise not be valid as a result of an acquisition of property – whether acquisition of property resulting from Amending Act “results” from “this Act”

MIGRATION - Protection Visa – whether Immigration Assessment Authority decision affected by jurisdictional error – where no error established in Immigration Assessment Authority’s decision – application dismissed

Practice and procedure - appeal against registrar's decision granting security for costs - Application for security for costs

Burial rights - Person dying intestate - Where dispute arose between the deceased's sister and a person with whom he was in a relationship as to appropriate funeral arrangements - Whether it appeared that the person and the deceased lived as de facto partners for a period of at least two years immediately before the deceased's death so as to give her an entitlement to the intestate estate and ordinarily entitle her to a grant of administration of the estate - Whether it was appropriate to release the deceased's body to the person who appears most likely to be granted administration of the deceased's estate

MIGRATION – appeal from Federal Court of Australia dismissing application for judicial review of a decision of the Administrative Appeals Tribunal affirming decision not to revoke cancellation decision – application for judicial review also before the Full Court of decision by Minister’s delegate to cancel appellant’s visa under s 501(3A) of the Migration Act 1958 (Cth) on character grounds where applicant was sentenced to aggregate sentence of 12 months’ imprisonment for several offences –whether an “aggregate sentence of imprisonment” of 12 months imposed under s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act) is capable of triggering the mandatory visa cancellation requirement in s 501(3A) of the Migration Act – where Minister made formal submission only that decision in Pearson v Minister for Home Affairs [2022] FCAFC 203 is plainly wrong – decision in Pearson followed – where Bill to validate with retrospective effect any decision made under s 501(3A) on the basis of an aggregate sentence passed both houses of Parliament but Royal Assent not yet given – appeal allowed and application for judicial review granted with declaratory relief

MIGRATION – proper construction of subs 494D(1) of the Migration Act 1958 (Cth) – what is required for written notice – ascertainment of nature and scope of authorisation of migration agent with respect to “specified matters” in the particular circumstances of this case

MIGRATION – Judicial review – decision of Immigration Assessment Authority – citizen of Sri Lanka – Tamil ethnicity – involvement with the LTTE – sexual assault by Sri Lankan law enforcement – whether unreasonable refusal to adjourn or allow sufficient time to obtain psychological reports – whether wrong statutory question asked – whether jurisdictional error

MIGRATION & SUPERANNUATION – Judicial review – decision of the Administrative Appeals Tribunal – nomination of an occupation for a Temporary Skill Shortage (class GK) (subclass 482) visa – whether constructive failure to exercise jurisdiction or irrelevant consideration taken into account by reason of incorrect understanding of meaning of “adverse information” and “contravention” of a law of the Commonwealth – whether obligation to pay superannuation – whether failure to pay superannuation a contravention of a law of the Commonwealth – whether constructive failure to exercise jurisdiction by failure to consider whether adverse information relevant to suitability as nominator of the nominee for visa – whether finding as to the alleged failure to comply with Commonwealth superannuation guarantee illogical – whether constructive failure to exercise jurisdiction by asking the wrong question as to favourable employment conditions and entitlements – whether test as to less favourable employment conditions directed to past or future conditions – whether jurisdictional error – writs issued SUPERANNUATION – whether obligation to pay superannuation – whether failure to pay superannuation a contravention of a law of the Commonwealth EMPLOYMENT – whether test as to less favourable employment conditions directed to past or future conditions WORDS AND PHRASES – “adverse information” – “contravened” – “contravention” – “contravened a law of the of the Commonwealth, a State or a Territory” – “will apply”

Partnership - Facilitative provisions - Whether dissolution due to business becoming unlawful - Whether dissolution due to inferred agreement - RBA deficit debt - Judgment against other alleged partner - Whether judgment transformed the RBA deficit debt into a 'secondary tax debt'

Migration – application for review of Tribunal’s decision that power to consider whether to revoke mandatory cancellation of visa under s 501CA(4) not enlivened because representations not received within 28 days – where Minister issued two invitations to make representations about revoking character cancellation decision under s 501(3A) – invitations identical but for date – representations made within 28 days of second invitation but not first – invitations informed applicant that representations must be “received” within 28 days contrary to reg 2.25(2)(b) – invitation not “within the period…ascertained in accordance with the regulations”: s 501CA(3)(b) – Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174 and EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 applied.

MIGRATION – proper construction of subs 494D(1) of the Migration Act 1958 (Cth) – what is required for written notice – ascertainment of nature and scope of authorisation of migration agent with respect to “specified matters” in the particular circumstances of this case

MIGRATION – appeal from a judgment of the Federal Circuit Court of Australia in judicial review proceedings – decision of the Immigration Assessment Authority affirming a decision not to grant the appellant a protection visa – whether, in the appeal, leave should be granted to the appellant to rely on grounds not raised in the proceeding below – whether the Immigration Assessment Authority evaluated new information against the criteria of s 473DD(b)(i) and (ii) of the Migration Act 1958 (Cth) before reaching a conclusion under s 473DD(a) on whether exceptional circumstances exist to justify considering that information

MIGRATION – protection visa – appeal from the Federal Circuit Court – where appellants allege denial of procedural fairness by Administrative Appeals Tribunal (Tribunal) – where delay of fourteen months between Tribunal hearing and making of decision – whether effect of delay on Tribunal decision occasioned procedural unfairness to the appellants – NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 considered – no jurisdictional error established – appeal dismissed

MIGRATION — appeal from decision of Federal Circuit Court of Australia — application by family of three for Safe Haven Enterprise visas — where Immigration Assessment Authority affirmed decision of Minister’s delegate to refuse to grant the visas and primary judge dismissed application for judicial review of Authority’s decision — where second appellant indicated that she did not advance independent claims for protection but where there was also material before Authority, which, if accepted would indicate that she had experienced harm in her country of nationality, whether primary judge erred in finding that Authority did not fail to consider a clearly articulated claim for protection raised by the material — where second appellant was not interviewed by delegate and Authority had concerns about evidence given by the other appellants, whether primary judge erred in not finding that Authority unreasonably failed to exercise, or consider exercising, its discretion to invite her to give further evidence under s 473DC(3) of the Migration Act 1958 (Cth) PRACTICE AND PROCEDURE — where appellants legally represented in court below, whether leave should be granted to allow appellants to rely on ground of appeal not raised before primary judge

Special leave.

For successful plaintiff in interlocutory skirmish –Joinder - Whether shareholder who is not directly affected by proposed 'buy-out' order ought be party to proceedings

MIGRATION – appeal from a decision of the Federal Circuit Court, which dismissed an application for judicial review of a decision of the Immigration Assessment Authority not to grant the appellant a visa – whether the accepted errors made by the Authority in its evaluation of new information for the purposes of s 473DD of the Migration Act 1958 (Cth) were material – realistic possibility of a different outcome found – appeal allowed.

Property law - Purchase of property by father for 'family' - Presumption of advancement - Turns on own facts

MIGRATION — appeal from an order made by the Federal Circuit Court of Australia quashing a decision of the Immigration Assessment Authority — where the Authority affirmed a decision of the delegate of the Minister to refuse the first respondent’s application for a Safe Haven Enterprise visa — consideration of new information pursuant to s 473DD of the Migration Act 1958 (Cth) — requirement that new information be capable of being believed — new information will only fail to meet the credibility requirement where it is evidently not credible — whether the Authority made a finding about whether the new information was not capable of being believed — the Authority’s finding that a document was not genuine was a finding that the document is not capable of being believed — matter also considered on the basis that the Authority proceeded directly to a rejection of the new information and did not ask itself whether the information was capable of being believed — consideration of the correctness of previous authority of the Court where the Court held that the Authority is required under s 473DD(b)(ii) to determine whether the information is capable of being believed before considering the information for the purposes of the review — previous

MIGRATION – appeal from Federal Circuit Court of Australia – whether the Immigration Assessment Authority engaged in jurisdictional error in concluding that the appellant is not a person to whom Australia owes protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth) – where appellant survivor of sexual assault – whether social stigma arising from sexual assault can amount to persecution or serious harm – whether Authority mischaracterised the particular social group by impermissibly splitting into two sub-groups without considering why the appellant might want to keep the sexual assault a secret in relation to persecutory harm – appeal allowed

PRACTICE AND PROCEDURE — application for a stay of a costs order pending the hearing and determination of an appeal to the Full Court of the Federal Court of Australia — whether the grounds of appeal are reasonably arguable — whether there is no reasonable probability of recovering the costs paid to the first respondent in the event that a stay is not granted and the appeal is successful — whether the appellant has engaged in any disentitling conduct

MIGRATION – Protection Visa – Whether the Delegates’ decision was affected by jurisdictional error – where findings and reasons are exactly the same notwithstanding that they are made by two different Delegates – where the decision lacks independent intellectual assessment of the claims – where jurisdictional error has been established in Delegate’s decision – writs issued.

MIGRATION - appeal from decision of Federal Circuit Court dismissing application for judicial review of migration decision - where Administrative Appeals Tribunal affirmed the delegate's decision to refuse appellant's application for protection visa - whether Tribunal's decision was legally unreasonable on basis that it failed to exercise discretion to take evidence from witnesses - whether there was a duty to consider whether to take evidence from witnesses - where appellant did not make request for evidence to be taken from particular person within seven days of hearing notice - appeal dismissed

JUDICIAL REVIEW – Warrants– Whether magistrate was misled – Meaning of ‘for other good cause’ for issue of warrant under Criminal Procedure Act 2009 s 12(5)(c) – Whether fact suspect is interstate and requires extradition provides ‘other good cause’ – Whether magistrate’s decision was unreasonable or illogical – Whether warrant and summons can be issued on same form – Dismissed – Criminal Procedure Act 2009 ss 5, 6, 12, 13, 14, 80, 81 – Service and Execution of Process Act 1992 (Cth) ss 24, 82, 83 – Crimes Act 1958 ss 323, 324, 458, 459 – Magistrates’ Court Act 1989 ss 29, 57, 61, 63, 64 – Magistrates’ Court Criminal Procedure Rules 2009 rr 10 and 11 – The Constitution s 117.

MIGRATION - appeal from decision of Federal Circuit Court of Australia dismissing application for judicial review of a decision of the Immigration Assessment Authority - protection visa - Authority's discretion to get and consider 'new information' under s 473DC and s 473DD of the Migration Act 1958 (Cth) - determination by the Authority that s 473DD prohibited it from considering 'new information' - jurisdictional error by reason of failure to exercise the discretion whether to get the information under s 473DC(1) - appeal allowed

MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to properly consider new information – whether the Authority misunderstood the meaning of credible personal information – jurisdictional error made out – application upheld – costs awarded against the first respondent.

MIGRATION – Protection Visa – whether Immigration Assessment Authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment Authority’s decision – application dismissed.

BANKRUPTCY - application for interim relief restraining the production of documents pursuant to a notice under s 77A of the Bankruptcy Act 1966 (Cth) - where it is claimed that the documents the subject of the notice were privileged - where it is claimed that the notice is an abuse of process - where grounds relied upon to set aside the notice lacked merit - where balance of convenience against the grant of relief - application refused

PRACTICE AND PROCEDURE - application for summary dismissal of proceeding - judicial review of alleged decisions by respondent concerning tax related liabilities of the applicant - characterisation of decisions - whether decisions susceptible to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and Judiciary Act 1903 (Cth) - decision to commence proceedings under s 255-5 in Schedule 1 to the Taxation Administration Act 1953 (Cth) - alleged refusal to enter into 50/50 arrangement under Subdivision 255-B of Schedule 1 to the Taxation Administration Act - alleged refusal to remit general interest charge under s 8AAG of the Taxation Administration Act - reliance on superseded policy statement and fettering of statutory discretion - garnishing of accounts and third party payments under Subdivision 260-A of Schedule 1 to the Taxation Administration Act - application successful in part

MIGRATION – Judicial review – decision of the former Refugee Review Tribunal – decision of delegate to not grant a protection visa affirmed – whether jurisdictional error.

Rectification of Register of Titles and removal of Retirement Villages Act memorial –Retirement Villages Act 1992 (WA) - Requirement to lodge a memorial under s 15(3) - Definition of 'Retirement Villages' and 'Retirement Village Scheme' pursuant to s 3 - Memorial lodged in error over separate 'retirement villages' and 'retirement village schemes' - Transfer of Land Act 1893 (WA) - Correction of error under s 188(3)

BANKRUPTCY AND INSOLVENCY - application seeking access to application for issue of examination summonses and affidavit in support

Procedure - Summary relief - Application for summary judgment against second defendant by counterclaim - Declaration sought as to deemed admissions and to the legal relationship between the parties - Declarations sought relate to contentious matters which are triable issues - Summary judgment refused – Procedure - Summary relief - Application to strike out portions of second counterclaim - Issues of proper construction - Second limb of Barnes v Addy raised - Accessorial liability - No proper basis for striking out the pleading. Strike-out application refused

MIGRATION – appeal from Federal Circuit Court dismissing appeal from Immigration Assessment Authority – whether Authority had jurisdiction to review delegate’s decision to refuse visa – whether Appellant properly notified of refusal to grant visa – whether Appellant was a ‘fast track applicant’ – whether Appellant entered migration zone at Territory of Ashmore and Cartier Islands – whether Western Lagoon of Ashmore Reef validly proclaimed to be a port

MIGRATION – protection visa – fast-track review decision – appeal from a decision of the Federal Circuit Court of Australia – whether the Immigration Assessment Authority erred in its application of the test in s 473DD(a) of the Migration Act 1958 (Cth) – consideration of new information by the Authority – whether there were “exceptional circumstances” warranting the consideration of new information – what constitutes “exceptional circumstances” – where no jurisdictional error identified in the Authority’s approach

MIGRATION - application for judicial review of decision by Administrative Appeals Tribunal to affirm Minister's decision to refuse visa under s 501 of the Migration Act 1958 (Cth) - where at late notice lawyer representing applicant did not appear at Tribunal hearing - whether applicant was denied procedural fairness by not being afforded more time - consideration of significance of 84 day period under s 500(6L)(c) of the Act - whether applicant had been notified of refusal to grant visa in accordance with s 501G(1) - whether Tribunal was in error in failing to dismiss the application on procedural grounds - no failure to afford applicant procedural fairness - no jurisdictional error - application dismissed

MIGRATION – Immigration Assessment Authority – protection visa – whether the Authority’s decision lacked an intelligible justification – whether the Authority properly considered an intention to inflict harm – whether the Authority’s decision was irrational or illogical – no jurisdictional error identified – application dismissed.

MIGRATION – Judicial review – decision of former Refugee Review Tribunal – Sri Lankan Tamil – whether lack of procedural fairness – whether bias – whether jurisdictional error.

MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka due to then pending criminal charges carrying the death penalty – Tribunal found that the applicant would not be harmed for a Convention reason and that he was not entitled to complementary protection – whether the Tribunal overlooked material indicating that the President of Sri Lanka was disposed to enforce the death penalty – jurisdictional error established – observations on the consequence of the acquittal of the applicant on the criminal charges following the Tribunal decision.

Administrative law - Appeal from Contaminated Sites Committee - Whether Committee erred in law - Statutory task of the Committee and procedures to be applied - Committee to act upon logically probative evidence, material and information - Principles of proof and establishing causation - Standard of proof - Briginshaw standard - Whether power to investigate - duty to make obvious inquiries - Power of Committee to require information - Mandatory considerations - Relevant considerations - Process and outcome unreasonableness - Whether error of fact can constitute an error of law - Procedural fairness - The requirement to provide adequate reasons - Pre-conditions to grant exemption certificate for liability

INCOME TAX – departure prohibition order – departure authorisation certificate – whether security given is satisfactory for the person’s return to Australia – decision under review is affirmed

MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority (IAA) – whether the IAA had authority to review decision – whether the applicant was an unauthorised maritime arrival – whether the purported appointment of a port as a proclaimed port an area of waters within the Territory of Ashmore and Cartier Islands by the Minister was a valid appointment – meaning of “port” – whether instrument a valid exercise of power – whether the IAA denied the applicant procedural fairness – whether the IAA erred by failing to raise adverse information – whether the IAA erred by failing to provide an opportunity for an oral interview – instrument invalid – declarations made – writ of certiorari issued.

MIGRATION – appeal from Federal Circuit Court of Australia – fast track reviewable decision of the Immigration Assessment Authority – where appellant claimed to fear harm due to his membership of the Tamil United Liberation Front (TULF) party – where Authority found as a fact that the appellant had stated that he was unaware of the TULF party’s history – where the appellant made no statement to this effect – whether Authority’s finding was a critical finding made without probative evidence giving rise to jurisdictional error MIGRATION – whether Authority’s finding that the appellant had failed to demonstrate sufficient knowledge of the TULF party’s history from 1976 to 2001 was arbitrary and formed on the basis of illogical reasoning – where appellant had not been fairly tested on the TULF party’s history – where Authority did not consider why a person in the appellant’s position would be expected to know the historical events identified, or why the appellant should have demonstrated knowledge of them without having been asked about them – where Authority’s finding of insufficient knowledge was based on the incorrect finding of fact that the appellant stated he was unaware of the TULF party’s history MIGRATON – whether adverse credibility finding affected by jurisdictional error in circumstances where the Authority had: (1) erred in finding that the appellant had stated he was unaware of the party’s history; and (2) adopted illogical reasoning when considering whether the appellant had demonstrated sufficient knowledge of the TULF party’s history from 1976 to 2001

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

Courts and judges - Contempt of court - Contempt by breaching injunction - Turns on own facts