Judgments

MIGRATION– Where the Authority made findings contrary to the evidence before it – where no reasonable decision maker could have made such findings – where a different decision could have been arrived at had the Authority not erred – jurisdictional error established – application granted.

MIGRATION – Protection visa – judicial review of multiple decisions of the Administrative Appeals Tribunal – where husband and wife separately applied for a protection visa – where both applications were dismissed by the Tribunal for non-appearance and the dismissal decision later confirmed - where both applicants made a succession of applications to the Tribunal following the dismissal of their respective review applications – whether the dismissal and confirmation decisions complied with procedural requirements – whether the dismissal decision was legally unreasonable - whether Tribunal correctly found it did not have jurisdiction to conduct further reviews of the dismissal decision – where Tribunal complied with procedural fairness and statutory obligations –  where decision to proceed under s 426A(1A)(b) was supported by intelligible reasoning - both applications dismissed – both applicants to pay costs in fixed amount reflecting Scale at time of applications.

MIGRATION – Where grounds of review were meaningless and wholly lacking in particularity – where the applicant had on two occasions been given the opportunity to amend the Originating Application for Review – where the applicant did not require the assistance of an interpreter at the time of the hearing before the Court – where the applicant failed to provide any reason as to why an order extending time for the commencement of the review application would be in the interests of the due administration of justice – no jurisdictional error established – application dismissed. 

INDUSTRIAL LAW – FAIR WORK – failure to comply with a compliance notice – application for imposition of pecuniary penalties – consideration of factors relevant to penalty – pecuniary penalties ordered. 

INDUSTRIAL LAW – where the first respondent failed to pay entitlements due to an employee for a small sum – where the second respondent was accessorily liable for the first respondent’s contravention – where deterrence nonetheless a consideration for the imposition of pecuniary penalties – orders accordingly. 

INDUSTRIAL LAW – Failure to comply with compliance notice – application for default judgment against company and its sole director – where respondents have not entered an appearance or participated in proceeding – default judgment – declarations made. 

BANKRUPTCY– Application for declaration and orders requiring vacant possession of property and the sale of such property – no arguable defence to the application – orders accordingly. 

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 – 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 - 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 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 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 – 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 – 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 – 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- 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- 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 – protection visa – judicial review of a decision of the Administrative Appeals Tribunal – where applicant feared he would be placed in a compulsory drug treatment facility upon return to Vietnam –  where applicant claimed he would be denied access to a methadone program - whether Tribunal failed to apply the “real risk” test – whether Tribunal considered the applicant’s claim or integral part of his claim concerning access to methadone program – finding of jurisdictional error – writs issued – costs order in applicant’s favour 

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 Tribunal reasoned illogically, irrationally and failed to give the applicant’s claim active intellectual consideration – whether the Tribunal made unwarranted assumptions – whether the Tribunal misapprehended the evidence of the applicant – whether the Tribunal made unreasonable credit findings – whether the Tribunal failed to consider all of the corroborative evidence – whether the Tribunal failed to determine that the law prohibiting publication of Liberation Tigers of Tamil Eelam symbols was discriminatory to the applicant for Convention reasons – jurisdictional error established – writs issued.

MIGRATION – application for juridical review of a decision of the Administrative Review Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal failed to have regard to relevant considerations – whether the Tribunal decision was affected by bias – whether the Tribunal failed to consider the risk of harm the applicant would face on his return to the receiving country – whether the Tribunal made jurisdictional errors in making adverse credibility findings – 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 – 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 – 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 – 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 – 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 – Injunction to prevent removal – relevant considerations.   

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 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– Protection (class XA)(subclass 866) visa – whether the Administrative Appeals Tribunal (the Tribunal) considered whether there was a real chance of significant harm to the applicant on return to Greece where her resident permit had expired – whether the Tribunal’s decision was legally unreasonable – application dismissed   

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.

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 – 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 - 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 – 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 – 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 

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 – 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 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 – 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 – 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