PRACTICE AND PROCEDURE – application for an extension of time to seek judicial review of the Administrative Appeals Tribunal (Tribunal) decision – extension of time granted

MIGRATION – application for judicial review of a decision of the Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal decision was affected by apprehended bias – jurisdictional error established – writs issued.  

CONSUMER LAW – Consumer protection – where respondent refused to engage in process – default judgment entered – damages assessed 

INDUSTRIAL LAW -where applicant made a complaint to a body not involved in employer/employee relationships or workplace health and safety matters – whether there was a workplace right that was exercised – where no workplace right existed – application dismissed – cost order  

HUMAN RIGHTS – EVIDENCE – parties jointly seek a determination on the admissibility of material filed in the proceeding as evidence under the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) – where the parties seek to rely on documents which are deemed inadmissible under section 37(1) of the Act – determination that the documents are admissible as evidence pursuant to the exception in section 37(2) – finding that section 93(1)(e)(i) applies to the extent that either party seeks to rely on information which would otherwise fall within section 92 of the Act. 

PRACTICE & PROCEDURE – Death of applicant – abatement of proceeding.  

COSTS – Proceeding under the Fair Work Act 2009 (Cth) - quantification of costs entitlement – assessment pursuant to the Federal Circuit and Family Court of Australia (Division 2) general federal law scale of costs 

PRACTICE & PROCEDURE – Death of applicant – abatement of proceeding.  

FAIR WORK – application in a proceeding seeking summary judgment in respect of various parts of the applicants’ claim – whether the applicants’ statement of claim is misconceived to the extent it alleges contravention of a ‘workplace right’ under s 340(1) of the Fair Work Act 2009 (Cth) – whether the applicants’ claim is misconceived to the extent it seeks protection under s 346 – whether the applicants’ claim there was a contravention of s 350B(1) can be sustained as a matter of law. 

BANKRUPTCY – application to discharge examination summonses issued on the application of trustee in bankruptcy (Trustee) purportedly pursuant to s 81 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) – whether each of the summonses on their face show the books each summons seeks to be produced are documents the trustee is entitled to have produced – whether addressee of one of the summonses has standing to apply to discharge the summonses addressed to other persons – whether bankrupt had been discharged and for that reason examination summonses are not liable to be issued pursuant to s 81 of the Bankruptcy Act – bankrupt has not been discharged and in any event discharge of bankrupt is not a bar to the issue of a summons under s 81 of the Bankruptcy Act - order made discharging part of one of the summonses but application to discharge summonses otherwise dismissed.

BANKRUPTCY – application for an order under s 33A of the Bankruptcy Act that the bankrupt’s statement of affairs be treated as having been filed at a time before it was actually filed – whether bankrupt is a necessary party to an application for an order under s 33A of the Bankruptcy Act – whether evidence of bankrupt in support of application should be accepted – application for an order under s 33A dismissed. 

MIGRATION – application for review of decision of Immigration Assessment Authority (IAA) – parties seeking issue of writ of certiorari against IAA where IAA now disestablished – approach where orders sought by consent – decision quashed

MIGRATION – application to extend time where application to Court nearly four months out of time – where Tribunal found it had no jurisdiction to entertain review application made out of time and had no discretion to extend time – no arguable jurisdictional error – application to extend time dismissed

MIGRATION – application for review of a decision of the Administrative Appeals Tribunal – protection visa – application dismissed. 

MIGRATION LAW – application for judicial review of a decision of the Immigration Assessment Authority to not grant a protection visa – fast track review – claims relating to family’s involvement in Liberation Tigers of Tamil Eelam activities, family being imputed with a pro-LTTE political opinion and harassment by Sri Lankan officials – IAA’s findings were reasonably open to it – application dismissed with costs 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal required to consider whether applicant might become businessman and face extortion on return to Iran - whether unarticulated claim emerged, arose or was raised on materials before Tribunal – whether Tribunal’s finding that applicant would not return to Iran as businessman involved assumption that applicant would modify or change behaviour - application dismissed 

MIGRATION – Review of a Registrar’s decision to summarily dismiss the application – Application for review filed out of time – Oral application for extension of time - Where applicant applied to Tribunal out of time – Where Tribunal determined that it had no jurisdiction to review the matter – application for extension of time to file review dismissed – Costs to follow the event 

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether the delegate failed to take into account relevant considerations – whether the Tribunal failed to apply the correct test for degrading treatment or punishment – no jurisdictional error – application dismissed. 

MIGRATION – Migration Act 1958 (Cth) – Application for Protection (Class XA) (Subclass 866) visa – Administrative Review Tribunal not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s 36(a) or (aa) and affirmed Delegate’s decision to refuse the application for the Protection (Class XA) (Subclass 866) visa – application for judicial review – no meaningful ground of jurisdictional error asserted – no jurisdictional error established – application for judicial review dismissed.

MIGRATION - Application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to the decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision not to grant a protection visa – whether the Tribunal failed to take into account relevant considerations or whether the Tribunal took into account irrelevant considerations – whether the Tribunal acted unreasonably in not accepting the applicant’s claims that he is a homosexual – application dismissed.   

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicants protection visas – whether the Tribunal denied the applicants procedural fairness – where the applicants consented to the Tribunal making a decision without holding a hearing – where the applicants seek Australia’s compassion to allow them to stay in Australia – no jurisdictional error established – application dismissed. 

MIGRATION – Judicial Review – Administrative Appeals Tribunal – Protection visa - Malaysia – Whether Tribunal failed to consider claims – Weight given to country information – Tribunal not obliged to uncritically accept claims – No question of principle – Application dismissed  

MIGRATION – protection (class XA) (subclass 866) visa – decision of the (then) Administrative Appeals Tribunal – no appearance by or on behalf of the applicant – oral application to dismiss pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – application for judicial review dismissed with costs

MIGRATION – student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal considered the applicant’s progression and intention to study – whether the Tribunal took irrelevant considerations into account – allegations of bias – no jurisdictional error established – application dismissed 

MIGRATION – judicial review – student visa – whether the Tribunal failed to consider relevant evidence – whether the Tribunal acted unreasonably – procedural fairness – whether weight given to certain evidence reveals jurisdictional error – no jurisdictional error found – application dismissed. 

FAIR WORK – Whether the first respondent contravened provisions of the Fair Work Act 2009 – where first respondent found to have contravened provisions of the Act – whether the second to tenth respondents were accessorily liable in respect of the Club’s contraventions – where the second to tenth respondents were found to have been accessorily liable – where the first respondent’s contraventions were serious contraventions – where adverse action found to have been taken against the applicant – Orders accordingly. 

MIGRATION LAW – whether the Tribunal had taken into account irrelevant considerations when arriving at its decision – whether the Tribunal had properly failed to identify and consider a relevant claim – no jurisdictional error established – application dismissed.  

MIGRATION – application for judicial review – Partner (Temporary) (Class UK) (Subclass 820) visa – where Administrative Appeals Tribunal affirmed decision of the first respondent – whether the Tribunal failed to have regard to information before it – whether the Tribunal failed to consider statutory declarations supporting the applicant’s claims – where the Tribunal did not expressly refer to the statutory declarations in its reasons – found it can be inferred that the Tribunal had regard to all of the evidence  – found no jurisdictional error on behalf of the Tribunal – application dismissed. 

MIGRATION – application for review of a Registrar’s decision – hearing de novo of first respondent’s application for summary dismissal – where applicant applied for judicial review of decision of Administrative Appeals Tribunal – Student (Temporary) (Class TU) (Subclass 500) visa – where Registrar summarily dismissed the applicant’s application for judicial review – where grounds unparticularised – application dismissed. 

FAIR WORK – General Protections – Whether the employer dismissed the employee from employment because he had made workplace complaints – Whether the employer dismissed the employee from employment because he was temporarily absent from work because of illness – Where the employer dismissed the employee because of concerns about the employee’s performance and not because of workplace complaints or because he was temporarily absent – General protections claim dismissed

FAIR WORK – Section 323(1) – Requirement for an employer to pay an employee amounts payable to the employee in relation to the performance of work in full at least monthly – Whether employer did not pay the employee’s salary for the final week of his employment during the relevant period – Application as to contravention of s. 323(1) dismissed

FAIR WORK – National employment standards - Where the employer made admissions that it had not made a payment in lieu of notice, paid redundancy pay or paid accrued and unused annual leave to the employee as at the date of dismissal – Where the employer paid those entitlements at a later date –Declarations as to contraventions made

FAIR WORK – Accessorial liability – Where the Second Respondent was not an intentional participant in the primary contravener’s contraventions - Claim against the Second Respondent for accessorial liability dismissed  

MIGRATION LAW – whether the Authority ought to have conducted an interview with the first applicant to clarify aspects of his claims – whether the decision of the Authority not to conduct an interview was legally unreasonable – no jurisdictional error established – application dismissed. 

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal engaged with the case put by the applicants in considering whether there were compelling reasons for not applying the criteria in Schedule 3 of the Migration Act 1958 (Cth) – writs issued 

MIGRATION – application for review of a Registrar’s decision – hearing de novo of first respondent’s application for summary dismissal – where applicant applied for judicial review of decision of Administrative Appeals Tribunal – Student (Temporary (Class TU) (Subclass 500) visa – where Registrar summarily dismissed the applicant’s application for judicial review – found grounds of substantive application had no reasonable prospects of success – application dismissed. 

INTELLECTUAL PROPERTY – copyright – whether copyright of which the applicant employer is the owner subsists in data contained in files (RAMA Keycap template files) which when accessed by a computer program generates 2D and 3D representations of keycap design and keycap collaboration templates – copyright subsists - whether information the employee downloaded from the employer’s server to a device or devices the employee controlled included the RAMA Keycap template files – whether having downloaded the RAMA Keycap template files the employee infringed copyright that subsists in the RAMA Keycap templates – employee infringed employer’s copyright in the RAMA Keycap templates - whether the employee reproduced a substantial part of the RAMA Keycap design templates to create keycap design templates which the employee on her own behalf and as the controller of a company used to create keycap design templates which in turn the employee and the company used to manufacture and sell artisan keycaps in competition with the employer – employee and company reproduced a substantial part of the RAMA Keycap design templates and for that reason infringed the employer’s copyright in the RAMA Keycap design templates. 

INTELLECTUAL PROPERTY – breach of confidence – where the employee downloads files from the applicant employer’s server which the employer alleges is confidential to the employer – whether the employer has identified the information the employee downloaded which the employer alleges is confidential – whether the information the employer has identified is confidential – employee downloaded information that is confidential to the employer – whether the employee’s downloading of the information was a breach of confidence – to the extent the information the employee downloaded included the RAMA template files whether the employee and through the company the employee established and controlled, misused the RAMA template files – the employee and through her the company misused the confidential information contained in the RAMA Keycap design template files to manufacture artisan templates which the company sold in competition with the employer. 

EMPLOYMENT LAW – whether the employee breached terms of her employment contract, fiduciary duties, and statutory duties imposed by s 182(1) and s 183(1) of the Corporations Act 2001 (Cth) by downloading information that included the RAMA Keycap template files that were confidential to the employer for the purpose of establishing a competing business to the business of the employer and using that information to manufacture artisan keycaps which a company the employee established and controlled sold in competition with the employer – the employee breached her employment contract and the fiduciary and statutory duties – whether the company established by the employee to undertake the competing business knowingly assisted the employee in breaching her fiduciary duties and was involved in the employee’s contraventions of her statutory duties – the company knowingly assisted in the employee’s breaches of her fiduciary duties and was involved in the employee’s breaches of statutory duty.

MIGRATION LAW – whether the Tribunal had erred in the way in which it considered the applicant’s claims – whether the Tribunal had acted unreasonably in making findings – no jurisdictional error established – application dismissed.    

MIGRATION LAW – whether the provision of two BAS statements under cl. 888.224 of Schedule 2 to the Regulations was required to be undertaken at the time of the making of a visa application to the Minister – where such a requirement would be capricious – jurisdictional error established – application granted. 

COSTS – Proceedings under the Fair Work Act 2009 (Cth)- proceedings dismissed summarily as abuse of process – application for costs – relevant considerations.

FAMILY LAW – contravention application – contraventions conceded – reasonable excuse 

PRACTICE & PROCEDURE – Application for dismissal of second and third proceedings where the applicant seeks to raise matters that could have been or once had been raised in the first proceeding – whether abuse of process – relevant considerations – second and third proceedings dismissed 

PRACTICE & PROCEDURE – Application to reinstate proceeding summarily dismissed for non-appearance – relevant considerations.  

PRACTICE AND PROCEDURE – Jurisdiction – Whether the Applicant had standing to seek a declaration of a contravention of the whistleblowers protections in Part 9.4AAA of the Corporations Act 2001 – Whether the court has original jurisdiction under s. 131 of the Federal Circuit and Family Court of Australia Act 2021 to decide claims under the whistleblower protections of Part 9.4AAA of the Corporations Act– Alternatively, whether the court has jurisdiction as to the whistleblower protection claims under s. 134 of the FCFCOA Act because those matters are associated with matters in which the jurisdiction of the court is invoked – Held the applicant did not have standing to bring an application for a declaration – Held that the court did not have original jurisdiction as to the whistleblower protection claims – Held because the court did not have original jurisdiction the court did not have jurisdiction to grant a declaration under s. 141 of the FCFCOA Act – Held that the court had associated jurisdiction to grant other remedies as to the whistleblower protection claims  

INTELLECTUAL PROPERTY – Copyright – whether the applicant is the owner of copyright in floor plans contained in brochures the applicant published – whether the respondent provided to a draftsperson a plan (copy plan) that combined parts of two separate floor plans contained in the brochures and by doing so authorised the draftsperson to design and prepare plans on the basis of the copy plan and therefore infringed the applicant’s copyright in the floor plans – not satisfied respondent provided the copy plan to the draftsperson or was otherwise aware the draftsperson used the copy plan to design plans for the constructions of a house – claim for infringement of copyright dismissed.  

MIGRATION – Application for judicial review – Protection (Class XA) (Subclass 866) visa – where the Administrative Review Tribunal affirmed decision not to grant the Applicant the visa as the Applicant did not satisfy a person whom Australia has protection obligations of s36(2)(b) or s36(2)(c) of the Migration Act 1958 (Cth) – whether the Tribunal erred by making an adverse inference with respect to credibility – found no credibility on behalf of the Tribunal – Application dismissed 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant applicant student visa – whether Tribunal required to exercise its power to obtain visa refusal decision concerning applicant’s wife – whether Tribunal made inconsistent findings – whether Tribunal made findings concerning courses, laws and policies in Nepal without evidence – whether Tribunal relied on personal or specialised knowledge to make findings – whether Tribunal made unwarranted assumption - application dismissed 

MIGRATION – student (class TU) (subclass 500) visa – where delegate cancelled visa under s 116(1)(b) of the Migration Act 1958 (Cth) for non-compliance with visa condition – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – whether Tribunal misapplied policy guidance when affirming delegate’s decision – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed

MIGRATION - application for judicial review – student (Temporary) (Class TU) (Subclass 500) visa – where Administrative Appeals Tribunal affirmed decision not to grant applicant the visa as applicant did not satisfy cl 500.212(a) of Sch 2 of the Migration Regulations 1994 (Cth) – whether Tribunal erred by failing to provide genuine consideration to mandatory relevant considerations and the applicant’s immigration history – found no jurisdictional error on behalf of the Tribunal – application dismissed.

MIGRATION – partner (temporary) (subclass 820) and partner (residence) (subclass 801) visa – decision of the (then) Administrative Appeals Tribunal – no appearance by or on behalf of the applicant – oral application to dismiss pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – application dismissed with costs

MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence provided by the applicants – whether there were problems with the interpretation provided at the Tribunal hearing or the way in which the first applicant was questioned by the Tribunal – whether the first applicant met the criteria for the grant of the visa – no jurisdictional error – application dismissed.

MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to have regard to relevant information or evidence – whether the Tribunal’s decision was affected by bias – whether the Tribunal failed to afford the applicant procedural fairness – whether the applicant was entitled to legal representation – whether the Tribunal erred by proceeding to determine the matter based on the evidence before it (without inviting the applicant to attend a hearing before it) – no jurisdictional error – application dismissed.

MIGRATION - application for judicial review – student (Temporary) (Class TU) (Subclass 573) visa – where Administrative Appeals Tribunal affirmed decision not to grant applicant the visa as applicant did not comply with condition 8202(2)(a) – whether Tribunal erred by failing to provide genuine consideration to applicant’s personal circumstances – found no jurisdictional error on behalf of the Tribunal – application dismissed.

MIGRATION – judicial review of decision of Administrative Appeals Tribunal – refusal of adjournment application relying on inadequate medical certificate - dismissal for non-appearance at court hearing – costs ordered 

MIGRATION – student (class TU) (subclass 500) visa – review of decision of the (then) Administrative Appeals Tribunal – judicial review – genuine temporary entrant criterion – whether Tribunal considered irrelevant consideration – whether Tribunal’s decision irrational or illogical – whether Tribunal’s decision legally unreasonable – Tribunal’s decision attended by jurisdictional error – writ of certiorari issued – writ of mandamus issued