Please select a judgment type from the filter below to view relevant judgments. On the AustLii website you can access previous judgments types FCoA (Appeals) judgments, FCoA First instance judgments, and FCC judgments.
Division 2 - General federal law
MIGRATION –Student (Temporary) (Class TU) (Subclass 500) Higher Education Sector visa - application for judicial review – consent to review without a hearing – no duty to inquire about applicant’s consent – decision of Tribunal reasonable and logical - no jurisdictional error shown - application dismissed.
PRACTICE & PROCEDURE – where orders made requiring the respondents to enter an appearance and file a defence – where the respondents failed to comply with orders of the Court – where it was appropriate for judgment to be entered in default – orders accordingly.
MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA failed to apply correctly s 473DD of the Migration Act 1958 (Cth) in the manner contended by the applicant – whether the IAA failed to consider a claim or an integer of a claim – application dismissed
MIGRATION – application for review of a registrar’s decision – review application filed out of time – whether an extension of time should be granted – length of delay and explanation for that delay – any prejudice caused – merits of the underlying application for review – application dismissed.
MIGRATION – protection visa – application for judicial review of decision of Administrative Appeals Tribunal not to grant visa - claim of involvement with Malaysian gang members and illicit drug trafficking - whether Malaysian police and authorities can provide adequate protection - whether applicant a person of interest to authorities - where Tribunal found fear of persecution not well-founded - whether reasons of Tribunal internally incoherent - whether reasons legally unreasonable - reasons ambiguous but no jurisdictional error established
MIGRATION – Application for judicial review – cancellation of student visa – Convention of the Rights of the Child – whether claim was explicitly made or arose from material – whether Tribunal erred in considering – best interests of child – application allowed.
MIGRATION – Administrative Appeals Tribunal - student visa (class TU) (subclass 500) visa – Whether the applicant was enrolled in a course of study at the time of the Tribunal decision – Where the grounds of judicial review are not supported by particulars – No merit – Application dismissed.
MIGRATION – Where it was a pre-condition for the grant of the visa that there be an approved nomination in respect of the position the nominee sought to be employed in – where there was no approved nomination – no jurisdictional error established – application dismissed.
MIGRATION – Administrative Appeals Tribunal – Whether the Tribunal’s findings of a breach of condition 8202 were contrary to s 119 of the Migration Act 1958 (Cth) – Whether there was an obligation to put information to the applicant pursuant to s 359A – whether the Tribunal’s use of the term “fundamental breach” in relation to the student visa was legally unreasonable – no merit – application dismissed.
MIGRATION – Costs – Leave to file a Notice of Discontinuance – Costs consequent on filing of Notice of Discontinuance – Order for costs in a fixed amount
BANKRUPTCY – Consequential issues following decision where creditor’s petition dismissed and sequestration order made by Registrar set aside – Order for unsuccessful creditor to pay the Trustee’s reasonable remuneration and expenses of administering the estate – Order for unsuccessful creditor to pay the Trustee’s costs of the proceeding – Whether costs of the respondent debtor should be taxed on an indemnity or standard basis – Order for unsuccessful creditor to pay the respondent debtor’s costs of the proceeding on a standard basis
HUMAN RIGHTS – Application filed two days out of time – complaint terminated by Australian Human Rights Commission – extension of time granted
MIGRATION – Registrar review application – where Applicant has requested multiple adjournments – whether a medical certificate provided by the Applicant is in accordance with Court orders – whether the matter should be summarily dismissed for non-compliance with orders – where Applicant’s case is hopeless in any event – application dismissed with costs.
MIGRATION – Administrative Appeals Tribunal – protection visa – whether a claim arose on the materials that the Tribunal did not consider – whether the Tribunal failed to afford the applicant procedural fairness.
MIGRATION – whether the Tribunal failed to carry out a proper review – whether the Tribunal misconstrued or misapplied the regulations – no jurisdictional error established – application dismissed.
MIGRATION – extension of time – 13 days out of time – protection visa – inadequate explanation for delay – no reasonably arguable case for jurisdictional error – application dismissed.
MIGRATION – Judicial Review of a decision of the Tribunal to refuse the applicant a student visa – Genuine temporary entrant criteria – application dismissed
MIGRATION – application for review of decision made by registrar – where registrar summarily dismissed application for judicial review of decision of Administrative Appeals Tribunal – no appearance by applicant – application dismissed – costs ordered
MIGRATION – Judicial review of a decision of the Administrative Appeals Tribunal affirming a refusal to grant student visa - Whether Tribunal misconstrued clause 500.212(a) of Sch 2 to the Migration Regulations 1994 – Where applicant wanted to support a family member in Australia for the duration of their, not indefinite, legal proceedings - Where Tribunal found applicant did not satisfy cl 500.212 on the basis of cl 500.212(a) – Error of the kind identified in Eros - Jurisdictional error established
CONSUMER LAW – COSTS – dismissal of Application in a Proceeding seeking orders for forensic imaging and access – Respondents seek party-party costs up to 12 June 2024 and costs on an indemnity basis thereafter – costs awarded according to scale
FAIR WORK – assessment of pecuniary penalties as against the second respondent – nature and extent of loss – specific and general deterrence - payment of penalty to be made.
MIGRATION – Student (Temporary) (Class TU) visa – decision of the Administrative Appeals Tribunal – judicial review – procedural fairness – whether the Tribunal had provided the applicant an opportunity to give evidence & present argument relating to the issues arising in relation to the decision under review under s360 of the Migration Act 1958 (Cth) (“the Act”) – whether the Tribunal had a statutory obligation under s 359AA or s 359A of the Act to give the applicant notice – whether the Tribunal complied with obligation to give reasons under s 368 of the Act – apprehended bias – whether the Tribunal identified a wrong issue – whether the Tribunal failed to take into account relevant considerations or took into account irrelevant considerations – unreasonableness – no jurisdictional error established – application dismissed.
MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Student (Temporary) (class TU) visa – whether applicant satisfied genuine temporary entrant criterion – no jurisdictional error established – application dismissed – costs ordered
MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Student (Temporary) (Class TU) (subclass 500) visa – where applicant not enrolled in course of study – where cl 500.211 not met – no jurisdictional error established – application dismissed – costs ordered
MIGRATION – application for judicial review of the decision of the Administrative Appeals Tribunal to not grant a protection visa – Applicant afforded procedural fairness and no obligation to provide further hearing before Tribunal – Tribunal’s mistaken conclusion was not a material error – consideration of an invalid visa application was not information within the meaning of s 424A of the Migration Act 1958 (Cth) as it was not the matter that undermined or rejected the Applicant’s claim – application dismissed with costs
MIGRATION – judicial review – sch 2, cl 500.212 Migration Regulations 1994 (Cth) - genuine applicant for entry and stay as a student – court’s role in examining Tribunal’s reasons when self-represented litigant – no jurisdictional error established
MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizen of Pakistan – whether failure to consider the risk of harm to the applicant in Islamabad in the context of whether it was reasonable for him to relocate from Parachinar to Islamabad – whether material jurisdictional error.
MIGRATION – Contributory Parent (Migrant) visas -judicial review of decision of Administrative Appeals Tribunal not to grant visas – where applicants failed to disclose member of the family in visa application – where the applicants allege that daughter has been legally “disowned” and no longer part of family unit – whether failure to declare daughter is false and misleading – where failure to meet visa criteria established - whether there compassionate or compelling grounds for waiving public interest criterion – where no grounds for waiver established – application dismissed
MIGRATION – Whether Tribunal properly considered evidence of applicant’s cousin in related reviews – whether Tribunal failed to put information to applicant from cousin for comment pursuant to s 424A
MIGRATION - costs – where costs of the proceeding significantly exceed the event based “scale” amount at Schedule 2 of Division 1, Part 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – where the applicant was wholly unsuccessful in the proceeding – consideration of factors relevant to the exercise of the discretion to order costs – costs as agreed or taxed.
MIGRATION – protection visa – application for judicial review of decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to properly consider corroborative evidence and therefore failed to complete its statutory task – jurisdictional error established – application allowed with costs.
FAIR WORK – interlocutory relief sought by way of injunction – current contract for service to end – injunction sought for parties to enter a further contract on the same terms – whether there is an arguable case – balance of convenience – application dismissed.
INDUSTRIAL LAW – Fair Work – penalties – the respondents were involved in contraventions by a corporation, which is now in liquidation – quantum of penalties agreed by the parties.
MIGRATION – Costs – Whether the Court ought to exercise its discretion to proportionally reduce the costs payable to the successful first respondent by 50% – where the applicant owed a duty to particularise the bases for such a claim – where the usual order as to costs being ordered on a party/party basis ought to apply – orders accordingly.
MIGRATION – Application for Review of a Registrar’s decision – Whether costs order can be set aside –Where the Applicant’s legal representative sought leave to file Notice to Withdraw as a Lawyer in Court – Leave not granted – Application refused.
PRACTICE AND PROCEDURE – oral application for a hearing to be adjourned – application granted.
BANKRUPTCY - review of Registrar’s decision to make a sequestration order – hearing de novo – validity of bankruptcy notice – section 41(5) applies – whether applicant debtor is insolvent – application dismissed
MIGRATION – protection – judicial review of decision of Immigration Assessment Authority to refuse a Safe Haven Enterprise Visa – where applicant sought to raise new information at the review – whether the new information was credible personal information – whether new information capable of being believed – where Authority obtained and relied on other new information to assess merit of the applicant’s information – misapplication of s 473DD conceded by Minister – whether error material – whether realistic possibility of a different outcome - applicant entitled to relief
MIGRATION – Safe Have Enterprise visa – application for judicial review of decision of the then Immigration Assessment Authority – where the Authority constructively failed to exercise its jurisdiction to determine if the Applicants met the criteria as members of the same family unit of a non-citizen who met the criterion at s.36(2)(a) and/or (aa) – application allowed with costs
MIGRATION – Safe Have Enterprise visa – application for judicial review of decision of the then Immigration Assessment Authority – whether the Authority was legally unreasonable in its findings of inconsistencies between evidence of the Applicant and his spouse – where the Authority constructively failed to exercise its jurisdiction to determine if the Applicants met the criteria as members of the same family unit of a non-citizen who met the criterion at s.36(2)(a) and/or (aa) – application allowed with costs.
MIGRATION – Safe Have Enterprise visa – application for judicial review of decision of the then Immigration Assessment Authority – where Applicant made new claims of sexual assault that were not before the delegate and the Authority was not satisfied that the new information was credible personal information and did not consider it pursuant to s.473DD – whether the Authority materially erred in its application of the credibility test – whether the Authority ought to have exercised its discretion pursuant to s.473DC to invite the Applicant to an interview – whether the Authority failed to exercise its jurisdiction to determine if the Applicant met the criteria as a member of the same family unit of a non-citizen who met the criterion at s.36(2)(a) and/or (aa) – application allowed with costs.
MIGRATION – Where application for judicial review of decision of Refugee Review Tribunal dismissed by a Registrar for non-appearance at first Court hearing – where Notice of Discontinuance subsequently filed in respect of dismissed proceedings – where subsequent judgment of the Full Court of the Federal Court in another matter that Registrar’s had no power to dismiss application for non-appearance at first Court hearing – whether Registrar’s order void from the beginning – where Court an inferior court of record – where Registrar’s order for dismissal of application subsequently set aside by consent – whether originating application still on foot
PRACTICE AND PROCEDURE – Notice of Discontinuance - application to set aside – whether Notice of Discontinuance inoperative or ineffective – effect of applicant’s illiteracy in native and English languages – date of effect of Notice of Discontinuance – whether mandatory requirement to serve Notice of Discontinuance - whether originating application still on foot – whether Notice of Discontinuance to be set aside
PRACTICE AND PROCEDURE – Extension of time in which to file a judicial review application – factors – where very substantial delay of more than four years and nine months – observations on effect of very substantial delay – whether adequate explanation for delay – effect of applicant’s illiteracy in native and English languages – effect of application for Ministerial intervention – whether prejudice – whether proposed grounds of review reasonably arguable
MIGRATION – Judicial review – decision of the Refugee Review Tribunal – application for an extension of time to file judicial review application –– citizen of Afghanistan of Tajik ethnicity – whether Refugee Review Tribunal constructively failed to consider whether applicant faced a real risk of significant harm as a necessary and foreseeable consequence of being removed to Afghanistan – whether erroneous construction that a person would not be exposed to a risk personally if the risk was one to which other persons in the same area of a country were exposed to the same degree – whether incorrect test applied for serious harm – use of phrase “systematic serious harm” – whether proposed grounds of review reasonably arguable – whether material jurisdictional error
INDUSTRIAL LAW — retail industry - failure to comply with compliance notice – application for default judgment against company operating adult retail store trading as La La Land and its sole director – where Respondents have not entered an appearance nor participated in proceedings despite numerous opportunities – default judgment as to contraventions of the Fair Work Act 2009 (Cth) – declarations made – remaining forms of relief sought to be subject of further programming.
INDUSTRIAL LAW – review of a decision of Registrar – hearing de novo – small claims – underpayment claim – employment period covers three days – whether engaged as a full-time employee or casual employee – evidence indicates casual employee – underpayment not demonstrated – application dismissed
MIGRATION LAW – where the applicant made a second application for extension of time in respect of a visa refusal decision – where such application was an abuse of the process of the Court – where application was made some 2.75 years out of time – application dismissed.
MIGRATION – extension of time application – dismissal of interlocutory application where applicant in default – non-attendance at hearing of extension of time application.
MIGRATION – Administrative Appeals Tribunal – Protection visa (subclass 785) – where the grounds of judicial review are not supported by particulars – whether the Tribunal decision was unreasonable – no merit – application dismissed.
MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal – whether the Tribunal failed to inform the applicant of the material covered by a certificate issued under s 375A of the Migration Act 1958 (Cth) – whether the Tribunal failed to give the applicant a document to which it was entitled under s 362A of the Migration Act – whether the Tribunal misunderstood Australian law – whether the Tribunal misconstrued the legal requirements under reg 2.86(2A) of the Migration Regulations 1994 (Cth) – jurisdictional error established – writs issued.
MIGRATION – Administrative Appeals Tribunal - Safe Haven Enterprise Visa (class XE) (subclass 790) – whether the Authority was required to exercise the power in s 473DC -whether the Authority assessed the applicant’s risk of harm – whether the Authority’s finding was unreasonable – no merit – application dismissed.
MIGRATION – protection visa (subclass 866) – visa refused – where first notification of a decision of a delegate of the (then) Minister for Immigration and Border Protection was invalid – where application for review to the (then) Administrative Appeals Tribunal not made within 28 days of the date of notification of the delegate’s decision – where first Tribunal dismissed the matter for want of jurisdiction – where second notice of the delegate’s decision given following BMY18 v Minister for Home Affairs [2019] FCAFC 189 – where second notification sent to incorrect email address – where applicant made a second application for review by the Tribunal more than 28 days after second notification where Tribunal found it had no jurisdiction to review the matter – judicial review – extension of time – applications for judicial review must be made by applicant within 35 days of the date of the Tribunal’s decision – where applicant made application for judicial review almost 3 years and 3 months after time elapsed – applicant in immigration detention – applicant given notice of involuntary removal from Australia – application for urgent injunctive relief to restrain removal of applicant from Australia – whether there is a serious question to be tried – whether balance of convenience favours the grant of relief – injunctive relief granted
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