MIGRATION – Review of decision by Registrar summarily dismissing judicial review application – application made out of time – extension of time refused

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to understand the meaning and effect of s 36(2A) of the Act – whether the Tribunal considered the applicant’s protection claims “erroneously and narrowly” – whether the Tribunal’s decision and credibility findings were illogical, irrational or unreasonable – whether the Tribunal failed to “investigate” the applicant’s protection claims – whether the Tribunal failed to comply with s 424A of the Act – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal erred by failing to consider the “changed situation” in Malaysia – no jurisdictional error – application dismissed.

MIGRATION – Judicial review application – Immigration Assessment Authority decision – citizen of Pakistan – whether failure to exercise jurisdiction – whether assessment of real chance of persecution in the reasonably foreseeable future – whether material jurisdictional error – writs issued

MIGRATION – Protection Visa – Adjournment to seek legal advice refused because the Applicant had ample time before trial to seek legal advice – Where Applicant claimed to fear harm because of past domestic abuse – Where it was open to Tribunal to reject the claim because the Applicant did not have ongoing concerns of domestic abuse and because the Applicant said the primary reason that she came to Australia was for economic reasons – Where the Tribunal found effective protection measures were available to the Applicant in the receiving country – Where the Applicant did not claim serious harm because of significant economic hardship that threatens her capacity to subsist – Application dismissed

MIGRATION – Protection visa – Application for an extension of time to commence judicial review proceeding – Where the Tribunal sent communications about its hearing to Applicant’s last provided email address in compliance with its statutory obligations – Where the Applicant failed to attend at the hearing before the Tribunal on the scheduled date – Where the Applicant filed the judicial review application some 393 days out of time – Where the underlying application has little or no prospects of success – Application for extension of time dismissed

 MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal – whether the Tribunal misconstrued reg 1.11A of the Migration Regulations 1994 (Cth) and asked itself the wrong question – no jurisdictional error – application dismissed

BANKRUPTCY – where the applicant failed to comply with Orders of the Court - where the proceeding has become stagnant – application dismissed.

INDUSTRIAL LAW – Admitted contraventions – First Respondent in liquidation – imposition of pecuniary penalties on Second Respondent – factors considered – penalties imposed.

INDUSTRIAL LAW – Admitted contraventions – imposition of pecuniary penalties – factors considered – penalties proposed by Applicant excessive – penalties imposed on the Respondents.

MIGRATION – Review of registrar’s decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed

MIGRATION LAW – Judicial Review – Protection visa – where Tribunal’s decision does not disclose any breach of s 424A or s 424AA of the Migration Act – where the Tribunal does not contravene s 425 – where the Tribunal’s decision is not irrational or illogical – application dismissed

BANKRUPTCY – where the applicant failed to comply with Orders of the Court - where the proceeding has become stagnant – application dismissed.

INDUSTRIAL LAW – Admitted contraventions – imposition of pecuniary penalties – factors considered – penalties proposed by Applicant excessive – penalties imposed on the Respondents.

INDUSTRIAL LAW – Admitted contraventions – First Respondent in liquidation – imposition of pecuniary penalties on Second Respondent – factors considered – penalties imposed.

MIGRATION LAW – Judicial Review – Protection visa – where Tribunal’s decision does not disclose any breach of s 424A or s 424AA of the Migration Act – where the Tribunal does not contravene s 425 – where the Tribunal’s decision is not irrational or illogical – application dismissed

MIGRATION – Review of registrar’s decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed

PRACTICE AND PROCEDURE – Pleading – embarrassing pleading – failure to disclose reasonable cause of action – failure to plead component elements of cause of action.

INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – General protections – workplace rights – requirement to identify source of ability to complaint or inquire – requirement to identify nature and source of benefit, role or responsibility imposed by workplace law or instrument

PRACTICE AND PROCEDURE – Application in a proceeding to set aside Registrar’s orders for substituted service of a bankruptcy notice on alleged debtor – where substituted service order obtained ex parte – whether solicitors for the Applicants complied with disclosure obligations on an ex parte application.

PRACTICE AND PROCEDURE – Application in a proceeding to set aside Registrar’s orders for substituted service of a bankruptcy notice on alleged debtor – where respondent’s location disclosed in affidavit filed in bankruptcy proceedings in the Federal Court to which the respondent was not a party – whether address for service obtained and used by applicants’ solicitor in breach of Harman undertaking – whether disclosed information filed pursuant to an obligation of compulsion.

BANKRUPTCY – Creditors petition application – application in a proceeding to set aside Registrar’s orders for substituted service of a bankruptcy notice on alleged debtor.

WORDS AND PHRASES – “must”  

FAIR WORK – where the applicant failed to comply with Orders of the Court – application dismissed.

MIGRATION – protection (subclass 866) visa – where application to the (then) Administrative Appeals Tribunal to review delegate’s decision was made outside the time prescribed – where Tribunal found it had no jurisdiction – applicant’s judicial review application summarily dismissed by Registrar – application for review of Registrar’s decision – where application for review was made outside the time prescribed – whether the applicant was notified of the time frame to lodge an application to the Tribunal – whether the delegate’s notification letter was defective – where there is no acceptable explanation for the delay – where the judicial review grounds have no reasonable prospects of success – where application for review of Registrar’s decision has no reasonable prospects of success – application to extend the time prescribed to apply for a review of the Registrar’s decision refused

MIGRATION LAW – application for extension of time – decision of delegate of Minister for Immigration – safe haven enterprise (XE-790) visa – where the application was filed 1 year and 11 months out of time – consideration of whether it is in the interests of justice to grant the extension of time – where applicant claims to have not been aware of the Immigration Assessment Authority decision – where numerous attempts had been made by the delegate to arrange a Safe Haven Enterprise Visa interview with the applicant to no avail – application dismissed with costs.

MIGRATION – reinstatement application – application for review of a Registrar’s decision – whether reasonable explanation for non-attendance – prejudice – no arguable case – application dismissed.

PRACTICE & PROCEDURE – default, undue delay and improper conduct – overarching purpose of the Court’s civil practice and procedure provisions – order for costs against lawyer – referral to Victorian Legal Services Board and Commissioner.

FAIR WORK - penalty judgment– where the respondent contravened s 45 of the Fair Work Act 2009 (Cth) – no loss or damage occasioned to the applicant – need to ensure - necessary to ensure specific and general deterrence – assessment of penalty.

INDUSTRIAL LAW – Where applicant alleged adverse action taken for a prohibited reason – where adverse action conceded – whether first respondent was involved in a contravention of the Fair Work Act – whether the second respondent was knowingly concerned in or a party to a contravention of the Fair Work Act – where the claim against the first respondent had been established – where the claim against the second respondent had not been established – orders accordingly.

PRACTICE AND PROCEDURE – application in a proceeding seeking the adjournment of a hearing date to enable the applicant to obtain legal representation – where the applicant took steps to obtain legal representation in a timely manner after being notified of the listing for hearing – where the applicant engaged a lawyer who then had to go overseas for personal reasons – adjournment granted.

MIGRATION – Judicial Review – Where applicant was granted a refugee permit and permanent residence in third country prior to seeking protection in Australia – Where Administrative Appeals Tribunal (Tribunal) found that Australia did not have protection obligations by operation of s 36(3) – Where Tribunal considered incorrect test as to the meaning of s 36(3) – Error but not materiality conceded by Minister - Where possible that had Tribunal engaged with correct test outcome could have been different – Materiality established – writs issued

FAIR WORK - penalty judgment– where the respondent contravened s 45 of the Fair Work Act 2009 (Cth) – no loss or damage occasioned to the applicant – need to ensure - necessary to ensure specific and general deterrence – assessment of penalty.

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to assess a protection claim or an integer of a claim – whether the Tribunal should have investigated the applicant’s protection claims for itself – whether the Tribunal’s approach to credibility was “unreasonable” – whether the applicant was denied procedural fairness – whether the Tribunal relied on incorrect information or decided using facts from another case – whether the Tribunal failed to comply with the mandatory requirement under s 424A of the Migration Act 1958 (Cth) (read with s 424AA of the Act) to give the applicant particulars of information it considered would be part of the reason for affirming the decision under review – no jurisdictional error – application dismissed.

MIGRATION – Temporary Business Entry visas – decision of the then Administrative Appeals Tribunal – whether the Tribunal fell into jurisdictional error by making a finding contrary to a “concession” made by the Department – whether the applicants were denied an opportunity to address the Tribunal in that regard and thereby denied procedural fairness – jurisdictional error established – writs issued.

MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – whether the IAA failed to give adequate consideration to material before it – whether the IAA decision was legally unreasonable – no jurisdictional error established – application dismissed

MIGRATION – application for judicial review – protection visa – whether well-founded fear of harm – complementary protection – whether Tribunal considered applicant’s child in context of claims – application dismissed.

MIGRATION – protection visa – application for judicial review of a decision of the Administrative Appeals Tribunal – where applicant claimed fear of harm due to knowledge of corruption within the ranks of Sepah – where applicant provided further statutory declaration in response to request from delegate – where Tribunal made no reference in its statement of reasons to the statutory declaration – whether proper inference that Tribunal failed to consider the statutory declaration – where statutory declaration involved a restatement of information contained in an earlier statutory declaration – no jurisdictional error – application dismissed with costs in fixed amount

MIGRATION – Judicial review application – citizen of Pakistan – decision of the Immigration Assessment authority – refusal of Safe Haven Enterprise visa – where admitted breach by Secretary of the Minister’s department of requirement to provide to the Immigration Assessment Authority material provided to the Delegate of the Minister prior to the Delegate making a decision – whether material not provided to the Immigration Assessment Authority was new information – whether failure to exercise discretion to rectify breach by considering material not provided was unreasonable – whether material jurisdictional error

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal –– whether Administrative Appeals tribunal breached s 359A or s 359AA of the Migration Act – whether obligation to put information to applicant – whether Tribunal could rely upon common knowledge or common sense – irrationality – no jurisdictional error established – application dismissed

MIGRATION – costs – application for costs fixed in an amount above scale – fixed costs order made

MIGRATION – Costs judgment.

MIGRATION – partner visa – where Applicant did not meet Schedule 3 (cl.3001) criterion – whether the Tribunal erred in its consideration not to apply the criterion for compelling reasons – where Tribunal mistakenly considered policy as a mandatory consideration – material error established – application allowed with costs.

FAIR WORK – SMALL CLAIM – reasons for judgement delivered ex-tempore

FAIR WORK – Application to strike out Statement of Claim – Statement of Claim does not comply with the Rules and the fundamental principles of pleadings such that the Respondent knows the case it has to meet – Statement of Claim struck out – Opportunity for the Applicant to replead

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether Tribunal failed to understand meaning and effect of s 36(2A) of the Migration Act 1958 (Cth) – whether Tribunal considered applicant’s protection claims erroneously and narrowly – whether Tribunal made an illogical, irrational or unreasonable decision – whether Tribunal failed to “investigate” the applicant’s claims for protection – whether Tribunal failed to comply with s 424A of the Act – no jurisdictional error – application dismissed

PRACTICE AND PROCEDURE – application for review of an exercise of power by a Registrar – where a Registrar summarily dismissed the applicant’s judicial review application – application dismissed

MIGRATION – where the Administrative Appeals Tribunal found it had no jurisdiction to review a decision of a delegate of the Minister that it had already reviewed

MIGRATION – Protection (Class XA) (Subclass 866) visa – alleged fraud by migration agent upon Tribunal – allegation of fraud unsupported by evidence – no particulars of jurisdiction error – no error apparent - application dismissed with costs

MIGRATION LAW – application for extension of time – decision of delegate of Minister for Immigration – safe haven enterprise (XE-790) visa – where the application was filed 1 year and 11 months out of time – consideration of whether it is in the interests of justice to grant the extension of time – where applicant claims to have not been aware of the Immigration Assessment Authority decision – where numerous attempts had been made by the delegate to arrange a Safe Haven Enterprise Visa interview with the applicant to no avail – application dismissed with costs.

MIGRATION - Immigration Assessment Authority - Safe Haven Enterprise Visa (class XE) (subclass 790) visa refused – whether the Authority failed to correctly construe and apply s 463DD or engaged in illogicality – whether the Authority acted unreasonably by failing to exercise its statutory power under s 473DD – no jurisdictional error arises – application dismissed.

MIGRATION – Protection Visa – Where the Tribunal did not fail to consider relevant material – Where there was no evidence that the Tribunal made its decision in bad faith –  Where there was no error in the Tribunal taking into account the delay in the application for protection and drawing an inference unfavourable to the Applicant’s credibility because of the delay – Where the Tribunal was not required to put the Applicant on notice about doubts it had about inconsistencies in the Applicant’s evidence – Where the Tribunal had no duty to make further inquiries – Application dismissed

MIGRATION– Application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise visa – where the applicant claims that the Authority did not consider relevant or new information under section 473DD of the Act – finding that the Authority gave proper consideration to the information before it – jurisdictional error not established – application dismissed with costs.

MIGRATION – Protection visa – decisions of the then Administrative Appeals Tribunal – whether the applicant was properly invited to attend a Tribunal hearing – whether the Tribunal acted reasonably in exercising its discretion under s 426A of the Migration Act 1958 (Cth) – whether the Tribunal ignored the potential harm the applicant would face if returned to his home country – whether the Tribunal dismissed his application without complying with its procedural fairness obligations – whether the conduct of the applicant’s agent or solicitor amounted to a fraud on the Tribunal – no jurisdictional error – application dismissed

MIGRATION - Administrative Appeals Tribunal - Student (Temporary) (Class TU) (subclass 500) visa – s 359 request - allegation that the Tribunal should have requested ‘specific’ information rather than ‘general’ information – illogicality or irrationality in the Tribunal decision – no jurisdictional error established – application dismissed – costs.

MIGRATION - Administrative Appeals Tribunal - Student (Temporary) (class TU) (subclass 500) visas refused – whether the Tribunal committed jurisdictional error by failing to take into account relevant considerations – whether the Tribunal misconstrued or misapplied genuine temporary entry criteria pursuant to cl 500.212 – no jurisdictional error occurred – application dismissed.

MIGRATION – Administrative Appeals Tribunal - Temporary Graduate (Post-Study Work) (class VC) (subclass 485) visa – whether the Tribunal misinterpreted and misapplied case law – whether there is an inconsistency between regulations and the Migration Act 1958 (Cth)- whether the nature of the visa application affects cl 485.212 – no jurisdictional error made out – application dismissed.