| | | | | NCAT Legal Bulletin Issue 10 of 2020
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| The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal.
This issue features case summaries of recent decisions from the New South Wales Court of Appeal, the Victorian Court of Appeal and the Federal Court of Australia, including: - DRJ v Commissioner of Victims Rights (No 2) [2020] NSWCA 242 – in which the Court of Appeal refused a summons brought by the five appellants, alleging error on the face of the record in NCAT’s decision to refuse them payments and counselling under the Victims Rights and Support Act 2013 (NSW) (Victims Rights and Support Act). The Court found NCAT had correctly dismissed the applications under the Act, and found that, based on s 12 of the Interpretation Act 1987 (NSW) (Interpretation Act), on proper construction of the Victims Rights and Support Act, the act of violence central to the application under the Act must occur in New South Wales.
- Cooper v The Owners – Strata Plan 58068 [2020] NSWCA 250 – in which the NSW Court of Appeal granted an application for leave to appeal brought by Ms Johanna Anwar Cooper (Ms Cooper) and Mr Leo Bernard Cooper (Mr Cooper) against The Owners – Strata Plan No 58068. The Coopers kept a miniature schnauzer dog in the lot they owned, which the respondents asserted was a breach of the by-laws. The Court allowed the Coopers’ claim that the by-law was a contravention of s 139(1) of the Strata Schemes Management Act 2015 (NSW).
- Verraty Pty Ltd v Richmond Football Club Ltd [2020] VSCA 267 – in which the Victorian Court of Appeal upheld a decision by the Supreme Court of Victoria, rejecting an appeal by a landlord, Verraty Pty Ltd, regarding the status of a lease to the respondent, Richmond Football Club Ltd, and whether it ceased to be a retail premises lease under the Retail Leases Act 2003 (Vic).
- Allergan Australia Pty Ltd v Self Care IP Holdings Pty Ltd [2020] FCA 1530 – in which the Federal Court of Australia found that the respondent had not breached (in the majority of the applicant’s claims) the Trade Marks Act 1995 (Cth) or the Australian Consumer Law for its use of products bearing phrases used to associate and differentiate them from the applicant’s trademarked product “Botox”.
This issue also provides links to a number of summaries published separately by the NSW Court of Appeal Decisions of Interest Bulletin.
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New South Wales Court of Appeal
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| DRJ v Commissioner of Victims Rights (No 2) [2020] NSWCA 242
2 October 2020 - Bell P, Meagher JA, Leeming JA
In sum: The Court of Appeal refused a summons brought by the appellants, DRJ, DRK, DRL, DRM and DRN, alleging error on the face of the record in NCAT’s decision to refuse them payments and counselling under the Victims Rights and Support Act 2013 (NSW) (Victims Rights and Support Act). The Court found NCAT had correctly dismissed the applications under the Act, and found that, based on s 12 of the Interpretation Act 1987 (NSW) (Interpretation Act), on the proper construction of the Victims Rights and Support Act, the act of violence central to the application under the Act must occur in New South Wales.
Facts: The appellants are five women of Yazidi ethnicity, who allege to have been subjected to a series of violent acts at the hands of an Australian man. The alleged perpetrator lived in New South Wales, and was imprisoned for four years in an Australian gaol, following a guilty plea to a terrorism-related charge, before leaving Australia in 2013. The acts of violence occurred in Syria and Northern Iraq in 2014. The appellants have never been to Australia, and each now reside in countries where they have been accepted as refugees ([45]).
In July 2018 the applicants’ solicitor made an application on their behalf under the Victims Rights and Support Act for recognition payments and counselling. This application was dismissed on the basis that none of the acts occurred in New South Wales. Applications for internal review by a delegate of the Commissioner of Victims Rights were dismissed for the same reasons in November 2018 ([46]).
Pursuant to s 51 of the Victims Rights and Support Act, the applicants applied for administrative review by NCAT. NCAT dismissed the applications ([47]).
The applicants filed a summons invoking the Court of Appeal’s supervisory jurisdiction, alleging error on the face of the record by NCAT ([49]).
Held (dismissing the summons):
(i) Where a statute makes no express provision connecting it to New South Wales, the task is to identify the central focus or central conception of the legislation, and require that it bear a connection with New South Wales. This is a matter of construction, based on subject matter and scope, and with a regard to internal indications and to avoiding improbable and absurd outcomes. It will be relevant to have regard to the purpose of the statute, the likelihood that the statutory purpose will be evaded if made to depend upon something readily altered at the instance of the parties, and the need to avoid an unduly restrictive approach whereby more than one factum is required to bear a connection ([157]).
(ii) The general or apparently universal language employed in s 12 has led to numerous questions about the form and extent of the necessary connection to New South Wales, and many surrounding questions. The answers to none of these questions are explicitly answered in the statute ([3]-[5]).
(iii) The weakness of the presumption to which s 12 of the Interpretation Act gives effect and the multiplicity of connecting factors upon which a particular statute may be “hinged”, coupled with the scope for differences of opinion as to that matter, calls for far greater, more explicit and more regular attention to be paid to this matter by legislative drafters in the discharge of their important responsibilities ([37]).
(iv) Proper construction of the Victims Rights and Support Act shows that the central act of violence must occur in New South Wales. Even if an act of violence is committed by a New South Wales resident overseas, or even if the act of violence amounts to an offence contrary to New South Wales law, the victim is not eligible under the scheme ([184]).
(v) The Court assessed the meaning of s 12(1) of the Interpretation Act. It found that “New South Wales” was used in paragraph (a) to refer to the polity within the Australian federation, and in paragraph (b) to refer to a place within the Australian continent. In examining the usage in paragraph (b), the Court cited Dixon J in R v Sharkey (1949) 79 CLR 121 at [153] speaking of “the territory occupied by New South Wales”. As s 12(1)(b) applies to intangible things, such as laws and obligations, the words “in and of” denote an association with New South Wales ([97], [99]. [104]).
(vi) The Court found that s 12(1)(b) is not an inflexible rule, as it is expressly defeasible by s 5(2) when a contrary intention is discerned ([114]).
(vii) A further difficulty exists where there is more than one “locality, jurisdiction or other matter or thing” to which s 12 is capable of applying. The Court cited Dixon J in Barcelo v Electrolytic Zinc Co of Australasia Ltd (1932) 48 CLR 391 at [422]; [1932] HCA 52, observing that when there are two expressions in a statute to which a section like s 12 is capable of applying, then “as soon as this restriction is applied to one of these expressions, the prima facie need for a territorial limitation is met and to that extent there is less reason for the other” ([116]).
(viii) It is well established that the operation of statutes is generally limited to within a State’s territorial limits. The Court cited the rule of construction referenced by Dixon J in Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society (1934) 50 CLR 581; [1934] HCA 3:
“The rule is that an enactment describing acts, matters or things in general words, so that, if restrained by no consideration lying outside its expressed meaning, its intended application would be universal, is to be read as confined to what, according to the rules of international law administered or recognized in our Courts, it is within the province of our law to affect or control. The rule is one of construction only, and it may have little or no place where some other restriction is supplied by context or subject matter. But, in the absence of any countervailing consideration, the principle is, I think, that general words should not be understood as extending to cases which, according to the rules of private international law administered in our Courts, are governed by foreign law. As the present statute deals with the discharge pro tanto of obligations, it ought to be understood as confined to those obligations which arise under the law of New South Wales” ([122], [123]).
Read the decision on the NSW Caselaw website.
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| Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250
12 October 2020 - Basten JA, Macfarlan JA, Fagan J
In sum: The Court of Appeal granted an application for leave to appeal brought by Ms Johanna Anwar Cooper and Mr Leo Bernard Cooper (the Coopers) against The Owners – Strata Plan No 58068, regarding a contravention of s 139(1) of the Strata Schemes Management Act 2015 (NSW).
Facts: The appellants, the Coopers, own a lot in a freehold strata scheme, constituted by a 43-storey apartment building in Darlinghurst, Sydney, known as The Horizon. The strata scheme by-laws prohibit owners or occupiers of lots from keeping or permitting any animal on any lot or on the common property. Ms and Mr Cooper keep an animal (a miniature schnauzer dog) in their apartment, in contravention of by-law 14 ([1], [3], [4]).
The issue of the ongoing contravention led the appellants to commence proceedings at NCAT, seeking a declaration that by-law 14 was invalid. The Coopers’ case was that the blanket ban on animals on a lot or common property contravened s 139(1) of the Strata Schemes Management Act 2015 (NSW), which provides that “a by-law must not be harsh, unconscionable or oppressive”, and as such provided grounds for NCAT to declare by-law 14 invalid, under s 150 of that Act ([4]).
In November 2019, the Tribunal, upheld the applicant’s claim, and declared by-law 14 to be invalid. The owner’s corporation successfully appealed that decision, and in May 2020 the Appeal Panel of NCAT set aside the orders made by the Tribunal. The Coopers sought leave to appeal from the Appeal Panel to the Court of Appeal on a question of law ([4]-[7]).
Held (granting leave to appeal and allowing the appeal):
(i) A lot owner in a freehold strata scheme holds a freehold estate, the rights and obligations of which are those attaching to a well-known form of real property. In identifying the attributes of a particular title, including, as in the present matter, the constraints imposed by by-laws, the fundamental indefeasibility of title to real property under the Torrens system is significant (Basten JA at [9], [76]).
(ii) Section 139 of the Act focuses on the character of the particular by-law, rather than the state of knowledge of any particular lot owner. The phrase “harsh, unconscionable or oppressive” is better understood as a triune, three words conveying a single criterion, invoking the application of values. The standard requires consideration of contemporary community standards. The power to make by-laws is not unconstrained. It is necessary to identify the purpose for which the power is conferred, as a conferral of power can only be exercised for the purpose for which it was created (Basten JA at [26], [28]-[29], [45], [56]-[57]).
(iii) A by-law which restricts the lawful use of each lot, but on a basis which lacks a rational connection with the enjoyment of other lots and the common property, is beyond the power to make by-laws conferred by s 136. A by-law which restricts the rights of all owners where the prohibited use would not interfere with the use and enjoyment of any other lot is not a by-law which has regard to the interests of all lot holders; nor is it “for the benefit of the lot owners” (Basten JA at [61], [63]).
(iv) The possible administrative convenience that might result from a blanket ban could not justify interference with the ordinary rights of lot owners. The making of evaluative judgments in response to individual lot owners is a common incident of the management of strata schemes (MacFarlan JA at [82]).
(v) By-law 14.1 was oppressive contrary to s 139(1) because it prohibited an aspect of the use of lots in the strata plan that is an ordinary incident of the ownership of real property and provided no material benefit to other occupiers of the building in their use or enjoyment of their own lots or the common property (Fagan JA at [88]).
Read the decision on the NSW Caselaw website.
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| Victorian Court of Appeal
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| Verraty Pty Ltd v Richmond Football Club Ltd [2020] VSCA 267
16 October 2020 - Kyrou, Kaye, Sifris JJA
In sum: The Victorian Court of Appeal upheld a decision by the Supreme Court of Victoria, rejecting an appeal by a landlord, Verraty Pty Ltd, regarding the status of a lease to the respondent, Richmond Football Club Ltd, and whether it ceased to be a retail premises lease under the Retail Leases Act 2003 (Vic).
Facts: In 1998, the applicant, Verraty Pty Ltd (the Landlord), leased a property to the respondent, Richmond Football Club Ltd (the Tenant), for a term of 10 years commencing on 7 May 1998, with an option to renew for a further term of 10 years (the 1998 Lease). By a Deed of Variation dated 30 January 2004 (the Variation), the parties agreed to vary the 1998 Lease by extending its term to 20 years, commencing on 7 May 1998 and to other variations as set out in that deed. The Variation effected the grant of a new lease (the 2004 Lease) ([1]-[3]).
The lease entitled the Landlord to reimbursement for land tax payments (cl 5.2(b)), and a rent review which precludes the reduction of rent and provides for a minimum rental increase of 4 per cent per annum (cl 15.1(b)(i)). However ss 50 and 35(3) of the Retail Leases Act 2003 (Vic) (RLA) void these clauses if the lease is a retail premises lease. It is common ground that, at its commencement, the 2004 Lease was a retail premises lease ([4]).
At the Victorian Civil and Administrative Tribunal (VCAT), the Landlord argued that the 2004 Lease ceased to be a retail premises lease on 7 May 2016, at which time the occupancy costs under the 2004 Lease exceeded the prescribed amount of $1m per annum, and the premises ceased to satisfy the definition of “retail premises” in s 4 of the RLA. Consequently, the Landlord claimed it was entitled to be reimbursed for land tax payments and receive rent for the renewed term at the current rent plus 4 per cent. The Landlord was successful at VCAT ([6]), [12]).
The Tenant contended that if the premises ceased to be retail premises as defined, the Act continued to apply to the retail premises lease provided that at the commencement of the lease it was a retail premises lease. Accordingly, in such a case, the provisions to which have been referred will, it was contended, continue to be void. The Tenant succeeded on appeal to a judge of the Trial Division ([7]).
The Landlord sought leave to appeal from the judge’s decision. Leave was sought with respect to three questions of law: (1) On the proper construction of the RLA, does a lease to which the Act applies when the lease is entered into, being a lease of retail premises, cease to be a lease to which the Act applies if during the term of the lease the premises cease to be retail premises as defined in s 4 of the Act? (2) On the proper construction of the RLA, if a landlord seeks to rely on an estimate of outgoings for the purposes of s 4(3)(b) of the Act, does the estimate have to be given to the tenant before the estimate can be taken into account as part of occupancy costs? (3) On the proper construction of the Act, if a lease to which the Act applies ceases to be a lease to which the Act applies during the term of the lease, do provisions of the lease which are made void at the time the lease was entered into by: (i) s 35(3); (ii) s 50 – cease to be void? ([7], [16])
Held (dismissing the appeal):
(i) The critical issue in this appeal is whether a retail premises lease, subject to the provisions of the Act at the time of commencement of the lease, can at some time in the future cease to be a retail premises lease if the premises are no longer ‘retail premises’ as defined in s 4 of the Act. If this is the case, the Landlord contended it was entitled to be reimbursed for land tax payments and receive rent for the renewed term at the current rent plus 4 per cent. If, on the other hand, the RLA continued to apply to the 2004 Lease, the Tenant would not be liable to pay land tax and the rent for the new term would be determined at a market rate. ([5], [12]).
(ii) Both the Landlord and the Tenant referred to the text, context and purpose of the Act in support of their respective contentions. Considering these contentions, the Court upheld the judge’s construction to the effect that if a lease is a retail premises lease at the commencement of the lease, it remains subject to the Act even if the premises cease to be retail premises. In short, the text, context and purpose of the Act strongly support the view that it is not possible to jump in and out of the Act from time to time depending on whether premises continue to fall within the definition of ‘retail premises’ ([8], [64]-[66]).
(iii) The Court accepted the Tenant’s construction, according to which the assessment under s 4 is a one-time assessment at the commencement of the lease, with no provision for annual review or an annual estimation of outgoings as contended by the Landlord. If at its commencement the lease is a retail premises lease, s 46 operates and there may be some overlap between s 4(3)(b) and s 46(3)(a) (which states that “The tenant must be given the estimate of outgoings – before the lease is entered into”). This is alluded to and arises out of the note to s 4(3)(b). However, this does not mean that s 46 is concerned with the anterior question as to the status of the lease. To this extent the note is unhelpful and a potential source of confusion. On this view, if at its commencement the lease is a retail premises lease, it remains so for its duration and under s 46, an annual estimate of outgoings must be given. ([103]).
(iv) The Court held that if, as the Landlord argued, the RLA no longer applied to the lease, there is no reason why any clauses to the lease negotiated and agreed to by the parties that were rendered void by the RLA (in this case cls 5.2(b) and 14.1(b)(i)) should not continue to operate. It is no answer to say that once the clauses are void they cannot be revived; rather, they would only be void in particular circumstances, and if those circumstances did (hypothetically) cease to exist, there would be no reason why the clauses should continue to be void ([90]).
Read the decision on the Australasian Legal Information Institute (AustLII) website.
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| Federal Court of Australia
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| Allergan Australia Pty Ltd v Self Care IP Holdings Pty Ltd [2020] FCA 1530
22 October 2020 - Stewart J
In sum: The Federal Court found in favour of the respondent, Self Care IP Holdings Pty Ltd, that the Trade Marks Act 1995 (Cth) was not breached by their product “Protox” and use of terms such as “Botox alternative,” for the similarity to the Botox products of the appellant, Allergan Australia Pty Ltd. Self Care’s cross claim seeking the removal of Allergan’s trade mark for Botox in class 3 of the 655 mark was allowed, however the cross claim seeking the cancellation of the 426 defensive mark was dismissed.
Facts: Allergan Inc is the manufacturer of Botox and the owner of trademarks, including for the word “Botox” (a portmanteau derived from the active ingredient botulinum toxin, type A), first registered as a trademark in the US in 1990. Allergan Australia is the Australian subsidiary of Allergan Inc (together referenced as Allergan), and the authorised user of “Botox” trademarks in Australia ([5], [6]).
Self Care IP Holdings Pty Ltd and Self Care Corporation Pty Ltd (Self Care) produce anti-wrinkle and anti-ageing products called Freezeframe. The case revolves around Self Care’s use of their trade mark “Protox,” and various phrases such as “Botox alternative” and “prolong the look of Botox,” in marketing their topical anti-ageing products. Allergan alleges these phrases and the trade mark Protox infringe on their trade marks for “Botox” ([25], [28], [39], [62]).
Held (refusing the appeal, allowing part of the cross claim and allowing part of the appellant’s submissions under the ACL):
(i) The Court defined three main elements established in s 120 of the Trade Marks Act 1995 (Cth): (1) the impugned sign must be used “as a trade mark”; (2) it must be substantially identical with or deceptively similar to the registered trade mark; and (3) it must be used in relation to the registered goods (s 120(1)) or goods of the same description as the registered goods (s 120(2)(a)) ([157]).
(ii) The word Protox was not an infringement of Allergan’s Botox trademark. The intention of the play on words was not to deceive consumers into believing the Freezeframe Protox product was Botox, but rather to say the opposite – “this is not Botox”, and remind them of Botox as a distinct product. The products are not likely to be confused, as the packaging mentioned both trade marks, and Protox was identified as an alternative to Botox. The products were found not to be goods of the same description, due to the differing forms of the products (one cosmetic topical, the other pharmaceutical injectable), the absence of a common trade origin, and that Protox is an “alternative” to Botox in the sense that it is a different product, rather than a direct substitute ([208], [209], [212], [221]-[225]).
(iii) The use of the word “Botox” in composite sentences was not an infringement of Allergan’s trade mark, as the word was not used by Self Care as a trade mark. There was no deceptive similarity and the goods were not of the same description, one being cosmetic, the other pharmaceutical ([255], [258], [261]).
(iv) Self Care succeeded in its cross claim, regarding Allergan’s registration of Botox as a trade mark cosmetic (the 655 mark). Allergan failed to establish Botox as a cosmetic, finding it was a pharmaceutical product. Allergan had not used the 655 mark in respect of the goods covered by the registration. The Court found the unused trade marks should be removed ([281]-[284], [292]).
(v) Allergan had registered a defensive trade mark (the 426 defensive mark) that was also subject to Self Care’s cross claim. The Court dismissed this claim, as Self Care was unable to demonstrate that it was not likely that the use of the “Botox” trade mark in relation to the goods or services in respect of which it is registered in class 3 will be taken to indicate that there is a connection between those goods or services and Allergan ([294], [339]).
(vi) Allergan lodged an appeal against the decision of the delegate of the Registrar of the Trade Mark Office, allowing Self Care to register the trademark “Freezeframe Protox.” Allergan’s appeal was unsuccessful for several reasons:
(a) The products and trade marks were sufficiently dissimilar as to prevent the likelihood that they would deceive and cause confusion (under ss 60, 42(b) and 44 of the Trade Marks Act) ([340], [344]-[358]).
(b) Allergan claimed under s 58 that the trade mark “Freezeframe Protox” was not validly granted as Self Care Corp owns the trade mark, but the application was made by Self Care IP. Self Care IP claims to have been the owner of the trade mark at the time of the application for registration, and authorised (or intended to authorise) Self Care Corp to use the mark. This contention was rejected by the Court, which noted Allergan’s conscientious effort to avoid suggesting it accepted the existence of the “Freezeframe Protox” mark, by referring to the “Freezeframe” and “Protox” marks separately ([361]-[362], [386]).
(c) Allergan contended that, contrary to s 59, Self Care IP did not, at the priority date, intend to use the opposed mark. The Court rejected this submission, finding Self Care did intend to use the marks, and found that the fact that the applications for the “Freezeframe” and “Protox” marks were made separately did not show any intention to use “Protox” separately, but rather that they were intended to be used together as “Freezeframe Protox,” “Protox Freezeframe” or appear separately on the same packaging ([388]-[389], [397]-[400]).
(d) Allergan also alleged that the application for the trade mark was made in bad faith, contrary to s 62A of the Trade Marks Act, due to a reasonable assumption that Self Care was aware of Allergan’s reputation in the Botox trade marks, and its use of Allergan’s Botox marks on its website. As the Court had already decided that the Protox trade mark was not deceptively similar to the Botox mark, this claim was rejected ([405]-[412]).
(vii) The Court found against claims made by Allergan that Self Care had breached Australian Consumer Law for passing off their products as associated with Allergan and Botox for the same reasons cited above. Although the Court recognised that phrases such as “instant Botox alternative” and the packaging of Protox in a syringe style applicator was intended to invoke anti-wrinkle injections generally, or possibly Allergan’s specific Botox product, the Court found the point and effect to be to demonstrate Protox as an alternative to Botox, not to mislead consumers regarding the association of Protox to Botox and Allergan ([414]-[415], [471]-[472], [475]-[476]).
(viii) The Court found in favour of Allergan in their submission that Self Care made efficacy representations contrary to Australian Consumer Law, with regard to one of 35 statements complained of. The only representation accepted by the Court was one regarding the Freezeframe Night (tube) product, that asserted it could “deliver the results of a Botox injection in 4 weeks”, with no quantifiable study to support this claim. As such it was found to be misleading within the meaning of s 29(1)(g) of the ACL ([577]-[580]).
Read the decision on the Federal Court of Australia website.
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| | Decisions of Interest Bulletin |
| | DRJ v Commissioner of Victims Rights (No 2) [2020] NSWCA 242
CONSTITUTIONAL LAW - State Constitution - extra-territorial operation of legislation - power to provide for - drafting techniques - desirability of providing explicit legislative guidance as to intended territorial reach of laws
STATUTORY INTERPRETATION - legal presumptions - presumption of territoriality - Interpretation Act 1987 (NSW) s 12 - applicants were women of Yazidi ethnicity - plaintiffs claimed they were victims of acts of violence perpetrated upon them in Northern Iraq and Syria by a man who had previously lived in New South Wales - Commissioner and NCAT dismissed application for support because acts of violence did not occur in New South Wales - plaintiffs submitted sufficient connection with New South Wales - nature of territorial nexus of Victims Rights and Support Act 2013 (NSW) with New South Wales - consideration of history and construction of s 12 Interpretation Act, extraterritorial legislative capacity, counterparts and precursors to victims compensation schemes - displacement of legal presumptions - appeal dismissed |
| Lawrence v State of New South Wales [2020] NSWCA 248
CONSTITUTIONAL LAW – Commonwealth Constitution – Chapter III – Terrorism (High Risk Offenders) Act 2017 (NSW) – whether the Act is constitutionally invalid – involuntary detention of a citizen by the State – preventative detention orders – whether the Act directs the Supreme Court as to the manner of the exercise of its jurisdiction – judicial discretion – whether the Act creates procedural unfairness – whether the Act is inconsistent with the institutional integrity of the Supreme Court as a repository of federal jurisdiction
STATUTORY INTERPRETATION – departure from literal meaning - Terrorism (High Risk Offenders) Act 2017 (NSW) s 39(4) – meaning when read in context – meaning having regard to the purpose of the Act
STATUTORY INTERPRETATION – legislative purpose – Terrorism (High Risk Offenders) Act 2017 (NSW) s 10(1)(c)(ii) – necessary connection between the association or affiliation and the advocacy of terrorist acts or violent extremism |
| Arcidiacono v The Owners – Strata Plan No 17719; Arcidiacono v The Owners – Strata Plan No 61233 [2020] NSWCA 269
LAND LAW — Easements — Creation of easements — Creation by prescription – servient owners unknown – whether servient owners acquiesced in user – whether acquiescence a necessary element
LAND LAW – easements – creation of easements by order of court – Conveyancing Act 1919 (NSW) s 88K – whether easements reasonably necessary – whether easements not inconsistent with the public interest – evaluative decision in which appellate courts should exercise restraint |
| ADL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 178
MIGRATION – appeal from decision of Federal Circuit Court dismissing application for judicial review of decision of Immigration Assessment Authority (IAA) – proper application of s 5J(3)(a) of the Migration Act 1958 (Cth) – consideration of inter-relationship between s 5J(3)(a) and s 5L – whether IAA had found applicant to be a member of a particular social group as defined in s 5L and, if so, had applied that finding in the application of s 5J(3)(a) – appeal allowed
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| | DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Legal Bulletin should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication.
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