Judgments

MIGRATION – protection visa – decision of the Administrative Review Tribunal – failure to appear before the Tribunal – where Tribunal dismissed the application pursuant to s 99 of the Administrative Review Tribunal Act 2024 (Cth) – whether the applicant was afforded sufficient time to prepare materials – whether the Tribunal failed to consider the applicant’s grounds – no jurisdictional error established – application dismissed. 

MIGRATION – Judicial review – Administrative Appeals Tribunal (as it then was) – whether the Tribunal erred in finding that there was a ground of cancellation under s 116(1AA) – whether the Tribunal failed to give proper, genuine and realistic consideration to the risk of harm to the applicants if returned to home country – whether the Tribunal failed to consider the best interests of the applicants’ Australian citizen children and the harm they would face if returned to Sri Lanka – Court finds no jurisdictional error made by the Tribunal – Application dismissed 

MIGRATION – Application for a Student (Temporary) (Class TU) visa – Review of Administrative Appeals Tribunal (“Tribunal”) decision – Allegation that the Tribunal’s decision was affected by jurisdictional error – Where the applicant alleges that the Tribunal did not place significant weight on certain key facts – Where the applicant was found not to be a genuine temporary entrant – Application dismissed 

MIGRATION – Safe haven enterprise (subclass 790) visa – judicial review – decision of the former Immigration Assessment Authority (IAA) – where IAA affirmed decision of delegate of the first respondent refusing the applicant a visa – whether IAA’s decision attended by jurisdictional error – IAA’s decision not attended by jurisdictional error – application for judicial review dismissed 

MIGRATION – Application for a Student (Temporary) (Class TU) visa – Review of Administrative Appeals Tribunal (“Tribunal”) decision – Allegation that the Tribunal’s decision was affected by jurisdictional error – Where the application was found not to be a genuine temporary entrant – Application dismissed 

MIGRATION – Protection (class XA) (subclass 866) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – extension of time – where there is no acceptable explanation for the delay – where there is no arguable case of jurisdictional error – not satisfied that it is in the interests of administration of justice to grant an extension of time – application to extend the 35-day period is dismissed

MIGRATION – Distinguished talent (Residence) (class BX) (subclass 858) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – judicial review – application for extension of time – merit of proposed application – where Tribunal determined it had no jurisdiction to hear review application pursuant to s 348 of the Migration Act 1958 (Cth) – whether application ‘properly made’ – application form contained credit card details to facilitate payment of application fee – where Tribunal’s attempts to process application fee failed – where payment successful after prescribed period elapsed – whether application ‘accompanied by’ prescribed fee – meaning of ‘accompanied by’ – whether fee was ‘paid’ – whether Tribunal erred in finding application not properly made – application for extension of time refused  

MIGRATION – Safe haven enterprise (class XE) (subclass 790) visa – review of decision of the Immigration Assessment Authority (Authority) – judicial review – where Authority affirmed decision refusing applicant a visa – where Authority did not exercise discretion under s 473DC of the Migration Act 1958 (Cth) to obtain ‘new information’ – information gap – whether failure to exercise s 473DC discretion was unreasonable – whether Authority failed to consider relevant material – Authority overlooked relevant information – failure to exercise discretion legally unreasonable – Authority’s decision attended by jurisdictional error – writ of certiorari issued – writ of mandamus issued 

CHILD SUPPORT – Amended Notice of Appeal dismissed – increase in child support payment – applicant pay first respondent’s costs  

MIGRATION – Temporary Graduate (Class VC) Subclass 485 visa – application for review of a Registrar’s decision – application of the English language test requirement – where visa application not accompanied by evidence that applicant had sat English language test within three years before the day on which visa application made – where the applicant’s application was summarily dismissed – no reasonable prospects of success in the substantive application – application dismissed. 

MIGRATION – Urgent interlocutory injunction application – Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) visa – whether the Applicant should be granted an interlocutory injunction restraining the First Respondent from taking steps to remove the Applicant from Australia pursuant to section 198 of the Migration Act – found the Minister erred – interlocutory injunction granted.

MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) – Whether the Tribunal erred in its consideration of evidence – Where the Tribunal incorrectly applied the Ministerial Direction – Court satisfied that the error is not material – Judicial review application dismissed with costs 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa on basis of evidence that applicant gave or caused to be given bogus document in relation to visa application – applicant absent from Court hearing – dismissal for non-appearance.  

INDUSTRIAL LAW – FAIR WORK – penalty hearing – failure to pay entitlements to employees – liability determined – first time offender – respondent remedied mistake before proceedings took place – calculation of penalty – matters to be considered 

PRACTICE AND PROCEDURE – Application in a proceeding – application for a further amended statement of claim – pleads alleged misleading and deceptive conduct under Australian Consumer Law– need for precision – whether pleading confusing or embarrassing – whether pleading reveals a reasonable cause of action – pleading accessorial liability – whether the amended statement of claim should be accepted – whether leave to replead paragraphs struck out – matters to be considered 

MIGRATION – Application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal fell into the species of error considered in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 in relying upon a finding that the applicant would express his sexuality and relationships in a “discreet manner” unlikely to draw the adverse attention of the authorities – writs issued 

MIGRATION –  Administrative Appeals Tribunal – Student (Temporary) (Subclass 500) visa – one ground of judicial review – whether the Tribunal failed to take into account evidence and failed to give these considerations appropriate credibility. sole ground of judicial review has no merit – impermissible merits review – application dismissed with costs

MIGRATION – Administrative Appeals Tribunal provision of false and misleading information in visa application – whether there was anything illogical unreasonable or irrational in the Tribunal’s decision – where the applicant conceded there were no compassionate or compelling circumstances in favour of a waiver – sole ground of judicial review has no merit – application dismissed

MIGRATION –  Administrative Appeals Tribunal – Student (Temporary) (Subclass 500) visa – four grounds of judicial review – whether the Tribunal failed to review the decision of the Department – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to take into account relevant considerations – whether Tribunal was legally unreasonable – grounds of judicial review have no merit – impermissible merits review – application dismissed with costs

MIGRATION – application for extension of time - judicial review of a decision of the Administrative Appeals Tribunal – minimal delay – not in the interests of the administration of justice to extend – no reasonably arguable case – application dismissed 

MIGRATION LAW – where the applicants’ ground of review was unparticularised – where the applicants’ failed to place evidence before the Court probative of the claim that the Tribunal member had denied them procedural fairness during the conduct of the Tribunal hearing – where it was open to the Tribunal to find that the applicants did not have a well-founded fear of persecution should they be returned to Papua New Guinea – no jurisdictional error established – application dismissed.   

MIGRATION – Safe Haven Enterprise Visa – application for judicial review of decision of the then Immigration Assessment Authority – whether the Authority was legally unreasonable in failing to consider or exercise the power to invite new information pursuant to s.473DC and/or in its findings of inconsistencies and interpretation of country information – application dismissed with costs. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether Tribunal properly assessed available information in considering whether applicant satisfied Sch 2 cl 500.212 - no jurisdictional error established – application dismissed.  
 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – where the Tribunal failed to comply with s 424A - whether there was an independent, alternative basis (or separate stream of reasoning) - no jurisdictional error established – application dismissed.  

MIGRATION – judicial review – decision of Administrative Appeals Tribunal cancelling temporary protection visa – clarification or change in understanding of law by High Court concerning constitutional validity of indefinite detention between date of Tribunal’s decision and date of hearing of judicial review application – whether Tribunal failed to consider or deal with submission or contention concerning indefinite detention based on understanding of law at time of Tribunal’s decision – whether Tribunal failed to consider or deal with submission or contention concerning indefinite detention based on understanding of law at time of hearing of judicial review application – whether error of Tribunal was material – whether assessment of materiality affected by clarification or change in understanding of the law 

MIGRATION LAW – Where it was open for the Tribunal to find that the applicant arrived in Australia for the purpose of advancing his economic situation – where the applicant had no reasonable belief that he would experience harm if returned to Indonesia – no jurisdictional error established – application dismissed.    

PRACTICE AND PROCEDURE – Where applicant claimed that he was unwell as a result of him being involved in a motor vehicle accident between a vehicle driven by him and a kangaroo – where the applicant did not consult any medical practitioner after the alleged accident – where there was no evidentiary basis supporting the applicant’s claims – adjournment application refused.  

MIGRATION - Employer Nomination Scheme - respective applicants are employer and employee - grant of employee subclass 186 and dependant visa conditioned upon approval of employer nomination - whether Tribunal misconstrued and misapplied the requirements in the Migration Regulations 1994 (Cth) - the Tribunal did not err - the applications must be dismissed.
 

MIGRATION – judicial review – applicant citizen of Sri Lanka – application for protection visa – fear of persecution due to Tamil ethnicity – fear of Sri Lankan authorities due to perceived association with Liberation Tigers of Tamil Eelam – claims of monitoring and specific targeting by the Sri Lankan Criminal Investigation Department – late supply of information by the applicant in connection with review refused by the IAA – IAA found no exceptional circumstances justifying consideration of the new information - IAA found inconsistencies in the applicant’s account – IAA not satisfied the applicant had a well-founded fear of persecution – IAA deemed applicant not to have met complimentary protection criteria – no jurisdictional error on the part of the IAA – application dismissed.

MIGRATION – judicial review – student visa – where applicant appointed authorised representative on Tribunal application form – where authorised representative advised no longer acting but applicant did not advise of withdrawal of authorisation – where Tribunal sent all correspondence to authorised representative – non-appearance of applicant at Tribunal hearing – Tribunal dismissed application for non-appearance – where applicant did not apply for reinstatement within statutory time limit – no jurisdictional error – application dismissed. 
 

MIGRATION - Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa - Application for judicial review – Application dismissed. 

MIGRATION – Protection (Class XA) (Subclass 866) visa - Application for judicial review –Related proceeding – Proceedings heard concurrently – Reliance on country information – Typographical errors – No jurisdictional error – Application dismissed.

MIGRATION – Protection (Class XA) (Subclass 866) visa - Application for judicial review –Related proceeding – Proceedings heard concurrently – Reliance on country information – Typographical errors – No jurisdictional error – Application dismissed. 

MIGRATION – application for judicial review – decision of the ART to not grant Protection (Subclass 866) Visa – whether the Applicant was denied procedural fairness – whether the Tribunal lawfully exercised its powers under s 106(1) of the Administrative Review Tribunal Act 2024   – – jurisdictional error established – application granted. 
 

INTELLECTUAL PROPERTY – practice and procedure – application for access to submissions that were filed in support of an application for the release of a Harman Obligation in relation to documents the respondent produced under a compulsory process – where the submissions describe the contents of the documents that have been produced – where the applicant for access does not attempt to show any special circumstances for the release of the Harman Obligation in relation to the information contained in the documents the contents of which the submissions disclose – no special circumstances shown – no other reasons justifying the granting of access shown – application for access refused.  

INDUSTRIAL LAW – General protections – application for extension of time under s 370(a)(ii) of the Fair Work Act 2009 (Cth) (FW Act) – where applicant exercised workplace right under s 341 of the FW Act – where applicant dismissed by respondent – where applicant alleges reasons for dismissal include exercise of workplace right – where applicant alleges discrimination in contravention of s 351 of the FW Act – whether extension of time ought be granted – merits of application favour granting extension of time – application for extension of time granted 

PRACTICE AND PROCEDURE – application for interim injunction or interlocutory relief – whether applicant has made out prima facie case – balance of convenience.

PRACTICE AND PROCEDURE – application to extend interim non-publication or non-disclosure order in respect of information in affidavit of party – whether information was confidential – relevance of confidentiality clause in agreement between parties as alternative mechanism to prevent disclosure of information - whether order necessary to prevent prejudice to proper administration of justice.

PRACTICE AND PROCEDURE – where the applicant failed to appear at a listing before the Court relating to her 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). 

MIGRATION – judicial review – Administrative Appeals Tribunal – whether the Tribunal wrongly considered the applicant’s circumstances – whether the Tribunal erred in finding the applicant was not a genuine temporary entrant – No jurisdictional error – application dismissed 

MIGRATION – regional employer nomination (permanent) (class RN) (subclass 187) visa – where delegate refused to grant the applicants visas – application for review of decision of the (then) Administrative Appeals Tribunal (Tribunal) lodged out of time – application for extension of time – where Tribunal affirmed delegate’s refusal – where applicant failed to satisfy cl 187.233 of the Migration Regulations 1994 (Cth) – applicant not subject of an approved nomination – no arguable case of jurisdictional error – application for extension of time dismissed 

MIGRATION – whether the (then) Administrative Appeals Tribunal erred in not granting the applicant a protection visa – where the applicant claims the Tribunal did not consider their evidence, unfairly assessed their credibility, and that they were denied procedural fairness – application dismissed 
 

INDUSTRIAL LAW – Alleged contravention of general protections – termination of employment – reason for termination of employment – whether because of exercise of workplace right in relation to alleged underpayment – whether fraud or misappropriation by employee – whether because of industrial activity by or on behalf of the employee – whether reason for termination of employment prohibited reason  PRACTICE AND PROCEDURE – Pleading of accessorial liability – notice to produce – whether to set aside subpoena – whether leave to file further affidavit concerning alleged misappropriation of cash – relevance of truth or falsity of alleged operative or substantial reason  

PRACTICE AND PROCEDURE – Artificial Intelligence – conduct of legal practitioners before the Court – citation of cases which do not exist – case citations generated by an artificial intelligence program – duties to the Court – practitioner referred to Legal Practice Board of Western Australia – personal costs order made against legal practitioner – application of s 486E and s 486F of Migration Act 1958 (Cth). 
 

MIGRATION – judicial review – student visa – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal failed to comply with section 54 of the Migration Act – whether the Tribunal misconstrued the Regulations – no jurisdictional error found – application dismissed 

PRACTICE AND PROCEDURE – Where the applicant failed to appear at a listing before the Court – 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). 

BANKRUPTCY – application to review a sequestration order made by a registrar – de novo hearing of creditor’s petition – alleged act of bankruptcy being failure to comply with a bankruptcy notice –– whether creditors petition invalid for non-compliance with rules – where no affidavit of debt or affidavit of search - whether bankruptcy notice meets the essential requirements of the Act – whether bankruptcy notice liable to mislead – where interest claimed on debt calculated by reference to collateral agreement – whether bankruptcy notice conflates separate claims – whether debtor is solvent – debtor entitled to relief - bankruptcy notice and sequestration order to be set aside

INDUSTRIAL LAW – Practice and procedure – application for summary judgment of two separate proceedings in which the applicant claims the respondent contravened s 340(1), s 344, s 351(1), and s 352 of the Fair Work Act 2009 (Cth) – whether applicant has articulated a reasonably arguable case – whether there are no reasonable prospects the applicant will be able to formulate a reasonably arguable case - whether in any event on the material before the Court the applicant does not have reasonable prospects of succeeding on any of his claims for relief – proceedings dismissed.   HUMAN RIGHTS – Practice and procedure – application for summary judgment in proceeding where the applicant alleges he suffered from a disability but the respondent employer failed to make adjustments and for that reason discriminated against the applicant contrary to s 15(2) of the Disability Discrimination Act 1992 (Cth) – whether there are no reasonable prospects that the applicant will be able to formulate a reasonably arguable case based on unlawful discrimination - whether in any event on the material before the Court the applicant does not have reasonable prospects of succeeding on any claim that the respondent engaged in unlawful discrimination by failing to make adjustments for the applicant – proceeding dismissed. 
 

INDUSTRIAL LAW – Imposition of penalty for contravention of s 716(5) of the Fair Work Act 2009 – failure to comply with compliance notice – lack of cooperation – no contrition – no corrective action  

INDUSTRIAL LAW – where the applicant claims that the respondents breached sections 45, 536, 323, 343, 345 of the Fair Work Act 2009 (Cth) and the Hospitality Industry (General) Award 2020 – finding that the respondent contravened section 45 of the Act by failing to pay the applicant under clause 11.5 of the Award – finding that the respondent contravened section 536 of the Act by failing to provide a payslip with the required information within the required time frame – whether the second to fourth respondents were ‘knowingly involved’ in any contraventions – declarations made. 

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal misapplied s 116 of the Migration Act 1958 (Cth) – whether the applicant was given the requisite opportunity to present his case before the Tribunal – incorrect reference to a legislative provision regarding a non-disclosure certificate – materiality – application dismissed