INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – construction of enterprise agreements – relevant principles.

MIGRATION – Whether Immigration Assessment Authority erred in manner identified in MZZJO – whether Authority failed to properly understand claim of applicant to have converted to Christianity

MIGRATION – Non-appearance of the applicant at the final hearing – Where the applicant was properly informed of the hearing – Application dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – refusal of a bridging visa application – whether the Tribunal failed to consider the circumstances in which the applicant was unable to meet the criteria for the visa – whether the Tribunal’s decision was affected by legal unreasonableness – whether the Tribunal’s decision was otherwise affected by relevant error – futility – application dismissed

PRACTICE AND PROCEDURE – where the applicant failed to appear at a listing before the Court relating to his judicial review application – application dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

PRACTICE AND PROCEDURE – where the applicant failed to appear at a listing before the Court relating to his judicial review application – application dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

INDUSTRIAL LAW – FAIR WORK – application for default judgment – consideration of rr 13.04 and 13.05 of the Federal Circuit and Family Court of Australia (Division 2) General Federal Law) Rules 2021 (Cth) – alleged contraventions of ss 45 and 323(1) of the Fair Work Act 2009 (Cth) – serious contraventions found – application granted.

MIGRATION – Application to set aside order dismissing judicial review application – judicial review application dismissed for non-appearance – applicant claims not aware of hearing date – email address not one used by primary applicant – email address created by person assisting with drafting of judicial review application – whether adequate reason for non-appearance – whether reasonably arguable prospects of success on proposed grounds of review – whether loan agreement in Malaysia – credibility – whether findings unreasonable or illogical – whether weight given to allegations made – whether fraud on Tribunal in relation to non-appearance.

PRACTICE AND PROCEDURE – Application to set aside order dismissing judicial review application – considerations relevant to exercise of discretion to set aside dismissal order – whether adequate reasons for non-appearance – whether delay in making set aside application – whether prejudice to respondent – whether reasonably arguable prospects of success on proposed grounds of review

PRACTICE AND PROCEDURE – Proposed further amended application for judicial review – whether orders sought – whether submissions or commentary – whether further orders sought relate to set aside of dismissal order or judicial review application – whether furthers sought are orders capable of being made.

PRACTICE AND PROCEDURE – Statutory declaration not accepted for filing – where identical (or substantially so) statutory declaration previously rejected for filing.

MIGRATION – application for student visa – primary applicant failed to satisfy ‘genuine temporary entrant criterion’ – criteria in cl 500.211 to cl 500.218 of the Migration Regulations 1994 (Cth) required to be satisfied by at least one of the applicants – Tribunal decision not affected by jurisdictional error – application dismissed.

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA’s reasoning was relevantly open to the IAA based upon the material before it – application dismissed

MIGRATION – application for judicial review – decision of the AAT to not grant Protection (Subclass 866) Visa – whether the Tribunal was acting under dictation of a previous decision maker – whether the Tribunal had an independent mind – whether the Tribunal acted unreasonably or illogically in conducting its research – whether the Tribunal made findings based on speculation – no jurisdictional error established – application dismissed

MIGRATION – judicial review – decision of the Administrative Appeals Tribunal refusing to grant a student visa – where the decision of the Tribunal to not reinstate the application was unreasonable – confirmation decision squashed – matter remitted to the Tribunal - application for judicial review allowed

MIGRATION – application for review of Administrative Appeals Tribunal’s decision – student visa – Public Interest Criterion 4020 – jurisdictional error established.

PRACTICE AND PROCEDURE – application in a proceeding seeking an adjournment of a hearing date to enable the applicant to seek legal representation –application for an adjournment dismissed.

INDUSTRIAL LAW – Contraventions of s 340(1) of the Fair Work Act 2009 (Cth) – Pecuniary penalties and compensation – Whether applicant has suffered compensable loss because of the contravention – Measure of compensation – Compensation and Penalties ordered.

MIGRATION – Protection visa - Protection (Class XA) (Subclass 866) visa – Application for judicial review – Whether Administrative Appeal Tribunal failed to consider a claim that was tolerably clear from the materials – Whether well-founded fear of persecution – No jurisdictional error – Application dismissed.

MIGRATION - Protection (Class XA) (Subclass 866) visa – Application for judicial review – Whether Administrative Appeals Tribunal failed to consider relevant evidence – Whether Administrative Appeals Tribunal failed to give the applicant opportunity to present evidence – Whether well-founded fear of persecution – No jurisdictional error – Application dismissed.

MIGRATION – application for judicial review – Safe Haven Enterprise visa – where Immigration Assessment Authority affirmed decision of first respondent – whether the Authority considered irrelevant country information – whether the Authority failed to consider relevant extracts of country information – found the Authority had regard to relevant country information – found no jurisdictional error – application dismissed.

MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa – Summary dismissal - Application for review of Registrar’s decision – Application for an extension of time – Extension granted – Rule 21.02(2) – Review allowed - Application for judicial review reinstated.

MIGRATION - Elderly female applicant whose only child now lives in Australia, with allegedly no next of kin in country of origin - whether Tribunal erred in considering existence of exceptional circumstances in assessing whether met cl 600.215 of Schedule 2 to the Migration Regulations – where no error even if Court may have concluded differently on facts – Ministerial intervention

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa to applicant from Iran – Direction No 84 given by Minister under s 499 of Act – obligation of Tribunal pursuant to Direction No 84 to take into account DFAT country information assessment where relevant – Tribunal did not take into account or consider most recent DFAT country information assessment concerning Iran – whether information in DFAT assessment was relevant to Tribunal’s decision – whether any failure by Tribunal to comply with Direction No 84 and s 499 of Act was material – whether Tribunal’s decision could realistically have been different if Tribunal had considered DFAT assessment. 

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

MIGRATION – Judicial Review – whether the period of notice for a rescheduled hearing given by the Administrative Appeals Tribunal (the Tribunal) was reasonable – whether the Tribunal erred in making a decision on the papers – whether there was fraud on the Tribunal by the applicant’s legal representative – no jurisdictional error – application dismissed.

MIGRATION– Whether the Tribunal failed to consider a claim said to have been advanced on behalf of the applicant – whether any claim was clearly articulated – whether the Tribunal ought to have raised an unarticulated claim on behalf of the applicant – no jurisdictional error established – application dismissed.  

INDUSTRIAL LAW - where there was evidence of a failure on the part of each respondent to comply with a duly issued compliance notice - where the respondents have failed to participate in the proceedings – where declarations and pecuniary penalty orders made accordingly. 
 

MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Protection (subclass 866) visa – where applicant was granted a protection visa which was subsequently cancelled – where applicant had returned to Iraq on two occasions following grant of protection visa notwithstanding claimed fears of harm – consideration of whether Tribunal engaged in illogical or irrational reasoning – where it was open for the Tribunal to conclude that the applicant had provided incorrect information – consideration of whether Tribunal failed to comply with ss 424A and 424AA of the Migration Act 1958 (Cth) – finding that applicant was put on notice of and did respond to the Tribunal’s concerns – consideration of whether Tribunal acted unreasonably in refusing two adjournment requests – finding that first refusal of adjournment not unreasonable and applicant has not established on balance of probabilities that second adjournment request was made – no jurisdictional error established – application dismissed with costs. 

MIGRATION -  protection visa - application for judicial review of decision of Immigration Assessment Authority refusing visa – where applicant bore scars relating to alleged torture – where scars visually inspected and described by the delegate – where Authority relied on delegate’s description – whether there was an informational gap in the review – whether Authority should have invited applicant to interview – where Authority obtained recent country information not available to delegate – whether Authority failed to properly consider later information regarding monitoring of social media activities by Iranian authorities – whether Authority relied on outdated country information – no error found 

MIGRATION –  protection visa – where applicant claims to fear harm due to conversion to Christianity – testing of applicant’s religious beliefs - whether the Immigration Assessment Authority erred by applying an arbitrary and unexplained standard of doctrinal knowledge in considering applicant’s commitment to Christianity – whether the Authority considered the particular circumstances of the applicant – whether the Authority erred in relying upon findings recorded by the delegate without interrogation of the source material  – whether the Authority made findings without a probative basis –  no jurisdictional error - application dismissed with costs  

MIGRATION – Where Tribunal failed to comply with section 359A obligation in relation to information which would have been a potential basis for affirming the decision, by ultimately finding on an alternative basis 
 

MIGRATION – Review of Registrar decision made out of time – where applicant fails to seek extension of time, elect for oral hearing and make written submissions – review application is susceptible to dismissal as incompetent  
 

MIGRATION – Application for an extension of time for judicial review of a decision of the Administrative Appeals Tribunal – where substantive application lodged 9 days after expiry of the statutory timeframe – where substantive application is futile and lacks merit – extension of time ought not be granted – application refused.
 

INDUSTRIAL LAW – FAIR WORK – admitted contraventions by CFMMEU official who acted in an improper manner whilst exercising the right to enter private premises and by the CFMMEU through its involvement – consideration of relevant factors – common course of conduct principle applied – declaratory relief granted and pecuniary penalties with partial personal payment ordered.   

INDUSTRIAL LAW – Fair work – application for breaches of the provisions of the Fair Work Act 2009 (Cth) – employer failed to pay wages and commissions – termination of employment following provision on medical certificate – where the respondents have failed to take any steps in the proceedings – principles to be applied in undefended proceedings – assessment of damages – quantum of penalty to be imposed – to whom should the penalty imposed be paid – matters to be considered 
 

MIGRATION – Application for judicial review – decision of Immigration Assessment Authority – citizen of Pakistan – Pashto ethnicity – whether failure to have regard to new information – date of publication of decision of Administrative Appeals Tribunal in another matter – whether Administrative Appeals Tribunal decision made before decision of delegate – consistency in administrative decision-making – whether unreasonableness or illogicality or irrationality – whether material jurisdictional error

BANKRUPTCY – Creditor’s petition – No matter of principle

FAIR WORK – application for costs

MIGRATION -  judicial review – decision of Administrative Appeals Tribunal – protection visa – whether Tribunal failed to consider claims or documents - no jurisdictional error established – application dismissed.

MIGRATION – application for judicial review – matter listed for final hearing – no appearance by or on behalf of the applicant – application dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) 

PRACTICE AND PROCEDURE – Costs – Application for costs where the applicant was successful in the substantive proceeding – Where the criteria for costs ordered on an indemnity basis was not satisfied – Costs ordered in accordance with the Court’s scale

INDUSTRIAL LAW – FAIR WORK – on remittal from the Full Court of the Federal Court – lengthy procedural history – initial application filed in 2015 – Letter from company to prospective employees – Full Court found letter contained threats to take adverse action – whether the Letter was sent with an intention to prevent the exercise of workplace right – consideration of chief operating officer’s evidence both at the first trial and re-trial – witness found to be credible – finding that letter not sent for proscribed purpose – section 340 and 343 claims not made out

PRACTICE AND PROCEDURE – procedural issue – whether judgment can be delivered when court advised after judgment reserved the respondent was placed in administration – operation of section 440D of the Corporations Act 2001 (Cth) – liberty to apply

MIGRATION – application for judicial review – protection visa – review of a decision of the Administrative Appeals Tribunal – where the Tribunal made adverse credibility findings – whether the Tribunal’s findings were legally unreasonable – application dismissed

MIGRATION – application for judicial review – medical treatment visa – review of a decision of the Administrative Appeals Tribunal - whether the Tribunal acted unreasonably in relation to the request for an extension of time – whether the Tribunal’s decision was affected by apprehended bias – no jurisdictional error established - application dismissed.

MIGRATION – Extension of time application – Short delay and satisfactory explanation – no prospects of success – application dismissed

MIGRATION – Whether the Tribunal conducted a proper review – whether the decision of the Tribunal was attended with any irrationality or illogicality – no jurisdictional error established – application dismissed.

MIGRATION – Whether the Tribunal carried out a proper review – whether the Tribunal misdirected itself as to its consideration of the relevant criteria under PIC 4020 – no jurisdictional error established – application dismissed.

MIGRATION – urgent interlocutory application to restrain Minister from removing applicant from Australia – whether serious question to be tried – whether damages an insufficient remedy – where balance of convenience lies – application dismissed.

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.

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 – 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

FAIR WORK - Whether employee or independent contractor – accessorial liability – unchallenged evidence of applicant –entitlements pursuant to modern award