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Federal court judgments

Every Issue

Cite as: April 2015 89 (4) LIJ, p.59

fedcjudg@liv.asn.au

Migration

Tribunals – what is “information” that may lead tribunal to refuse review

In SZTGV v Minister for Immigration and Border Protection [2014] FCAFC 3 (23 January 2015) a Full Court considered how the Refugee Review Tribunal was to identify “information” that could provide a reason for rejecting the review for s424A and 424AA of the Migration Act 1958 (Cth). The Court considered when answers to questions from the RRT constituted “information” and whether there was any obligation on the RRT in asking questions concerning complex information. In one of the appeals the Court concluded the RRT had not made an unreasonable decision by failing to call for a mental health report on the applicant and had not acted contrary to the RRT Guidelines on Vulnerable Persons.

Migration

Visa application – fraud – applicant not entitled to visa but seeking relief from exclusion period – utility of orders

In Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 (29 January 2015) the Migration Review Tribunal found P was not entitled to a visa holding the qualification as a cook because the documents claiming this were fraudulent. The MRT found the agent had acted fraudulently and P was indifferent to this. This was affirmed by the Federal Circuit Court. P appealed. The Full Court of the Federal Court noted the appeal was brought to set aside the finding that false documents had been provided by P and thus remove the three year exclusion on public interest grounds from him making further application for a visa. The Full Court found the FCC had erred by applying s140 of the Evidence Act 1995 (Cth) (civil proceedings – standard of proof) in finding P had failed to prove the fact of fraud when that fact was not in dispute. The Full Court concluded that there was no utility in granting relief as P did not contest he was not entitled to the visa. The Full Court concluded that setting aside the orders of the FCC and removing the decision of the MRT as one it did not have jurisdiction to make and would leave the decision of the delegate in place. The Full Court found that as the delegate was not named as a party and permission to add the delegate would be refused (as by s476 of the Migration Act it was not a decision the FCC or the Federal Court had jurisdiction to consider) no orders could be made against that decision anyway. The Full Court concluded that while the FCC had erred the appeal would be dismissed.

Patents

Inventive step

In Garford Pty Ltd v DYWIDAG Systems International Pty Ltd [2015] FCAFC 6 (30 January 2015) a Full Court rejected an appeal where it was asserted the primary judge’s conclusions as to “obviousness” of the claimed patentable invention focused impermissibly on the obviousness of the individual integers and not the combination.

Sport

Anti doping inquiry – whether ASADA can rely on information obtained by state body under its compulsive powers

In Hird v CEO Australian Sports Anti-Doping Authority [2015] FCAFC 7 (30 January 2015) a Full Court in a joint judgment concluded the primary judge did not err in holding nothing in the Act or the anti-doping scheme prevented ASADA from relying on evidence gathered by a state football competition from players under compulsive powers the state body possessed.

Tax

CGT – “settlement event”

In Taras Nominees Pty Ltd v Commissioner of Taxation [2015] FCAFC 4 (28 January 2015) a Full Court considered whether the taxpayer made a “settlement” of land (for s104-10 in Part 3-1 of ITAA 1997 (Cth)) when it transferred the title to a joint venture entity in which the taxpayer (as one of the joint venturers) continued to hold a beneficial interest and did not receive any proceeds. The appeal was generally dismissed save for findings as to valuation of the land to determine the cost base. l

THOMAS HURLEY is a Victorian barrister, ph 9225 7034, email. The full version of these judgments can be found here.

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