MIGRATION- Student (Temporary) (Class TU) (Subclass 500) visa - decision of Administrative Appeals Tribunal – whether the Tribunal ought to have provided a hearing or granted an adjournment – whether the Tribunal failed to take into account relevant considerations – no jurisdictional error – application dismissed

MIGRATION- Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence- whether findings unsupported by evidence – whether the applicant failed to properly apply the law – no jurisdictional error-application dismissed

MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant applicant protection visa – whether no evidence to support finding made by IAA – whether IAA ought to have considered whether Iranian authorities would become aware upon applicant’s return to Iran that passport used to depart Iran in 2012 was fraudulent – whether IAA erred in non-satisfaction that new information was credible within meaning of s 473DD(b)(ii) - application dismissed

MIGRATION – regional employer nomination visa –application for review of a summary dismissal decision made by a Registrar – where applicant did not have an approved nomination or indeed a sponsor at the relevant times – application can not succeed and is dismissed with costs

MIGRATION LAW – judicial review of a decision of the Administrative Appeals Tribunal to not grant a protection visa – Applicants raised new protection claims concerning a loan shark and discrimination of adoptive child – credibility concerns – largely unparticularised grounds of review and Applicants seeking impermissible merits review – no jurisdictional error identifiable – application dismissed with costs

MIGRATION LAW – extension of time of 428 days required – substantial delay – Applicant’s attempts to file application 233 days out of time – interpreter slang – grounds of review seek impermissible merits review – no reasonable prospects of success – extension not granted – application dismissed with costs

MIGRATION LAW – judicial review of a decision of the Administrative Appeals Tribunal to not grant a protection visa – Falun Gong practitioner – no jurisdictional error established – application dismissed with costs

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 had not complied with condition 8202(2) – whether Tribunal erred by failing to take into consideration the Applicant’s circumstances – both parties invited to make further written submissions to address whether the Tribunal was obliged to consider the fact the applicant had re-enrolled in a course of study after the NOICC - found no jurisdictional error on behalf of the Tribunal – Application dismissed.

MIGRATION – Migration Act 1958 (Cth) – application for Regional Employer Nomination (Subclass 187) (Regional Sponsored Migration Scheme) visa – Administrative Appeals Tribunal not satisfied that the applicant had an approved standard business sponsor as required by cl 187.311 of Schedule 2 to the Migration Regulations 1994 (Cth) and affirmed Delegate’s decision to refuse the application – application for judicial review – no meaningful ground of jurisdictional error asserted – no jurisdictional error established – applicants’ application for an extension of time to review the Registrar’s decision and the Applicants’ review application dismissed

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal was required to make finding as to why militia group issued threat letter to applicant’s family - application dismissed

MIGRATION – Injunction to prevent removal – relevant considerations.   

 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. 

MIGRATION – Judicial review – decision of Immigration Assessment Authority – citizen of Pakistan – whether misapplication of real chance test – whether constructive failure to exercise jurisdiction by failure to consider relevant integers of applicant’s claimed risk of harm – whether country information misconstrued and reasoning illogical or irrational – whether jurisdictional error – writs issued.  

MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizen of Sri Lanka – whether proper consideration given to whether exceptional circumstances existed to justify considering new information – whether assessment of whether new information was credible personal information – whether legally unreasonable to fail to utilise powers to obtain information from the applicant or other sources – whether legally unreasonable determinations concerning the applicant’s credibility and alleged failure to raise issues – whether jurisdictional error – writs issued

WORDS AND PHRASES – “reliable”  

MIGRATION – application for review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a Partner (Residence) (Class BS) Visa – Tribunal found the applicant did not meet Public Interest Criterion 4020(1) and there were no relevant compassionate or compelling circumstances to justify granting the partner visa – unrepresented litigant – explanation by the Court of practice and procedure as to adjournment and requirement to adduce evidence – whether the Tribunal ignored relevant material or decision was legally unreasonable – no jurisdictional error established – application dismissed 

MIGRATION – extension of time – four days out of time – student visa – inadequate explanation for the delay – no reasonably arguable case for jurisdictional error – application dismissed.

MIGRATION – protection visa – judicial review of a decision of the former Administrative Appeals Tribunal – where applicant alleges that she was assisted by an interpreter in the Chinese Mandarin language who did not faithfully interpret her evidence – where apart from one example the applicant did not identify any errors in the interpretation – where applicant did not produce a transcript of the hearing –  where Tribunal recorded adverse credit findings that reflected in part changes to the applicant’s evidence - where Tribunal recorded independent finding that Malaysian authorities could protect the applicant from the harm she allegedly suffered – no jurisdictional error – application dismissed with costs 

MIGRATION – Administrative Appeals Tribunal –Protection visa – Whether the Tribunal’s adverse credibility findings on critical issues amounted to jurisdictional error – sole ground of judicial review upheld –Tribunal decision quashed – matter remitted to the Tribunal 

PRACTICE AND PROCEDURE – Application for transfer of proceeding to the Federal Court of Australia – relevant considerations. 

HUMAN RIGHTS – DISCRIMINATION – application by the respondent for summary dismissal – where the applicant is in default – where the applicant failed to attend a court ordered mediation and comply with orders – application for the statement of claim to be summarily dismissed or struck out – whether the statement of claim is evasive or ambiguous – orders made striking out portions of the statement of claim – orders made for the applicant to re-plead the statement of claim and for the parties to attend a mediation 

MIGRATION – Protection Visa – Administrative Appeals Tribunal – Whether the Tribunal misapprehended the applicants claims and failed to give them proper, genuine and realistic consideration – Whether the Tribunal reasoned with the applicants claims in an irrational, illogical or legally unreasonable way – Proposed grounds of judicial review have no merit – Application dismissed 

MIGRATION – Persecution – Review of Administrative Appeals Tribunal (“Tribunal”) decision – visa – protection visa – refusal.  

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider every claim and made incorrect findings of fact.   

MIGRATION – application for an extension of time to seek judicial review – decision of the Administrative Appeals Tribunal of a lack of jurisdiction to hear the matter – where applicant failed to apply to the Administrative Appeals Tribunal within the prescribed timeframe – explanation for delay in lodging application for judicial review unsatisfactory – proposed grounds of review lacking in merit – not necessary in the interests of the administration of justice to extend time – application for an extension of time refused with costs

MIGRATION – Safe Haven Enterprise (Class XE) (Subclass 790) visa – Whether an unreasonable failure to exercise discretion under s 473DC(1) of the Migration Act 1958 (Cth) – Whether jurisdictional error material - Authority unreasonably exercised discretion – Informational gap – Jurisdictional error - Application allowed - Writs to issue.

MIGRATION – review of a decision of the Administrative Appeals Tribunal – protection visa – exercise of the discretion to proceed pursuant to s 426A(1A)(a) of the Migration Act 1958 – application dismissed. 

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider a claim clearly emerging on the material – membership of a particular social group – illogicality, irrationality or unreasonableness – no jurisdictional error established – application dismissed. 

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal was illogical, irrational or unreasonable – whether the Tribunal failed to exercise jurisdiction – whether the Tribunal failed to put information to the applicant – no jurisdictional error established – application dismissed 

MIGRATION - Protection (Class XA) (Subclass 866) visa – Application for judicial review –– Gender dysphoria claims for protection - Whether material jurisdictional error by the Tribunal – Whether Tribunal considered irrelevant evidence or failed to consider any material facts – No error – Application dismissed - Related proceedings. 

MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa – Whether the Authority’s assessment of new information under s 473DD of the Migration Act 1958 (Cth) is affected by jurisdictional error – Whether the Authority unreasonably failed to exercise the discretionary power under s 473DC of the Act – Whether  the Authority engaged in reasoning, and made findings, that were legally unreasonable – application allowed 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether applicant denied procedural fairness – whether Tribunal’s reasoning process was illogical and unreasonable - no jurisdictional error established – application dismissed.  

MIGRATION – Application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision made by the Immigration Assessment Authority (Authority) affirming decision not to grant the applicant a Safe Haven Enterprise Visa – whether the Authority failed to properly assess the applicant’s claims of harm – whether the Authority otherwise properly considered the applicant’s claims and country information that was relevant to the applicant’s claims – application dismissed.  

MIGRATION – Administrative Appeals Tribunal –Protection visa – Whether the Tribunal’s adverse credibility findings on critical issues amounted to jurisdictional error – sole ground of judicial review upheld –Tribunal decision quashed – matter remitted to the Tribunal 

MIGRATION - Protection (Class XA) (Subclass 866) visa – Application for judicial review – Fear of genital mutilation of sibling–- Claims of persecution or significant harm arising from failure to register applicant’s birth in Malaysia – Fear of discrimination and persecution due to gender dysphoria of sibling – Fear of forced disclosure of protection claims to authorities of receiving country – No jurisdictional error – Application dismissed. 

MIGRATION – Protection (Class XA) (Subclass 866) visa – Application for judicial review – Fear of harm due to genital mutilation – Persecution or significant harm arising from failure to register applicant’s birth in receiving country – Fear of discrimination and persecution due to gender dysphoria of sibling – Fear of forced disclosure of protection claims to authorities of receiving country – No jurisdictional error – Application dismissed. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) was satisfied – whether applicant genuinely intended to stay temporarily in Australia – no jurisdictional error established – application dismissed. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing student visa – whether Tribunal failed to give “genuine and realistic consideration” to applicant’s circumstances – whether Tribunal’s reasoning process was illogical and unreasonable - no jurisdictional error established – application dismissed. 

MIGRATION – Application for review of a summary dismissal decision made by a Registrar – where an argument is available to the applicant that the Tribunal erroneously sent correspondence to a person believed to be the applicant’s authorised recipient – where that argument has reasonable prospects of success – KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4 – orders made by the Registrar set aside by consent – matter listed for final hearing with associated procedural orders

MIGRATION – Regional Employer Nomination visa – decision of the Administrative Appeals Tribunal –application of the waiver provision in PIC 4020 – whether applicant purposely provided false and misleading information in contravention of PIC 4020(1) – compassionate or compelling circumstances – whether requirement to disclose UK spent convictions – where Tribunal failed to consider relevant evidence - jurisdictional error established – writs issued 

MIGRATION – Return (Residence) (Class BB) visa – Whether the Administrative Appeals Tribunal fell into jurisdictional error by failing to construe or misconstruing  cl 155.212(3A) of the Migration Regulations 1994(Cth) – Consideration of the “substantial ties” and “benefit to Australia” criteria – Application dismissed 

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – Tribunal not satisfied applicant was witness of truth and rejected most of applicant’s claims concerning past harm - no point of principle - application dismissed 

MIGRATION – Subclass 457 visa – Whether as a result of failing to adjourn the review proceeding in the absence of a response to a s 359 letter the Administrative Appeals Tribunal fell into jurisdictional error – Whether the Tribunal unreasonably failed to enquire as to why there had been no response to a s 359 letter – Application dismissed 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – finding that applicant provided bogus document – finding that applicant did not satisfy genuine temporary entrant criterion - no jurisdictional error established – application dismissed

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – Tribunal made adverse credibility finding against applicant based on inconsistencies, vagueness and hesitancy in giving evidence – application claimed post-traumatic stress disorder affected his memory – whether Tribunal erred in considering applicant’s explanation - application dismissed 

INDUSTRIAL LAW – COSTS – Where the applicant discontinued the proceeding some months before a trial listed for a seven (7) day hearing – where the applicant failed to personally depose as to why he discontinued the proceeding – where substantial costs had been incurred by both the applicant and the respondent before the discontinuance of the proceeding – where a lawyer who provided an affidavit deposing on an information and belief basis what the applicant’s reasons for discontinuance were had failed to provide any explanation as to why the applicant had not personally deposed as to his reasons for discontinuing the proceeding – where the applicant’s lawyer had failed to depose as to why the applicant might have been unable to depose as to his reasons for discontinuing the proceeding – where no weight attached to the evidence of the applicant’s lawyer provided on an information and belief basis – where a costs order on a party/party basis was accordingly made in favour of the respondent. 

MIGRATION – application for review of decision made by Registrar to summarily dismiss judicial review application – where Tribunal found that it did not have jurisdiction to conduct review – where application for review made out of time – where no adequate explanation for delay – where there is no reasonable prospect of success of judicial review application – extension of time refused with costs

MIGRATION - application for judicial review of a decision of the (then) Immigration Assessment Authority – whether the Authority misinterpreted or misapplied s.473DD of the Migration Act 1958 (Cth) in the manner contended – whether the Authority failed to consider relevant claims or evidence – whether the Authority’s decision was attended by legal unreasonableness – jurisdictional error not established – application dismissed with costs. 

HUMAN RIGHTS – DISCRIMINATION – where the applicant alleges that the first respondent discriminated against him unlawfully in the course of his employment with the second respondent, in breach of sections 9 and 18C of the Racial Discrimination Act 1975 (Cth) – where the applicant claims that the second respondent is vicariously liable for those breaches – where the applicant also claims that the second respondent has independently breached section 9 of the Act by alleged underpayment of wages to the applicant – where the applicant seeks damages, declarations and an apology – consideration of whether the alleged conduct occurred and if so whether it was in breach of section 9 – consideration of whether any conduct was made otherwise than in private pursuant to section 18C of the Act – finding that the conduct did not breach sections 9 and 18C of the Act – application dismissed. 

MIGRATION – judicial review – partner visa – applicant alleged Tribunal was in error because it looked at whether the applicant was a member of the family unit of the primary person as at the time of the Tribunal’s decision whereas it should have considered that question as at the time of the application for the visa – no jurisdictional error disclosed as Tribunal needed to be satisfied of the relevant criteria at the time of the Tribunal decision on the material then before the Tribunal – application dismissed. 

MIGRATION – Judicial review – Protection visa – Administrative Appeals Tribunal – Whether the Tribunal failed to consider claims - Whether the Tribunal erred in making a decision instead of dismissing the matter under s 426A – application dismissed.   

MIGRATION – judicial review – protection visa – Tribunal accepted the applicant was a member of a particular social group being “persons being pursued by loan sharks” – Tribunal found on the country information the applicant would not be denied effective protection by the police from loan sharks – issue as to whether the Tribunal ignored or failed to have regard to relevant country information as to effective protection by the police from loan sharks – no jurisdictional error – application dismissed