Judgments

MIGRATION - Class XA visa application – whether a testimony should be considered in isolation or within context – whether the Administrative Appeals Tribunal (“AAT”) failed to consider country information – whether the AAT denied the applicant a fair opportunity to address adverse material – whether the AAT failed to acknowledge a real risk of harm – whether the AAT failed to consider the totality of claims raised  - whether the AAT failed to adhere to a Ministerial Direction – whether the AAT failed to adequately evaluate the risk of significant harm - proposed grounds of judicial review have no merit – proposed claims invite an impermissible merits review - application dismissed 

MIGRATION – Student (Temporary) (Class TU) (subclass 500) visa – judicial review of a decision of the Administrative Appeals Tribunal – unreasonableness – failure to consider – no jurisdictional error established – application dismissed

PRACTICE AND PROCEDURE – Application in a proceeding – application for extension of time to file originating application – factors for consideration – length of delay – explanation for delay – where multiple lodgment forms filed – whether affidavit required to be filed with application – whether address for service requirements met – whether medical evidence sufficient to explain delay – where self-represented – prejudice – whether respondent wound up - whether underlying claim has sufficient arguable merit. 

PRACTICE AND PROCEDURE – Application in a proceeding – application for adjournment of extension of time application for filing of originating application – adjournment – factors for consideration. 

PRACTICE AND PROCEDURE – Application in a proceeding – leave to appear at hearing of application in a proceeding by telephone – consideration of post-COVID pandemic practice of the Court – consideration of overarching civil practice and procedure provisions. 

PRACTICE AND PROCEDURE – Application in a proceeding – application for leave to appear by a foreign lawyer – legislative provisions concerning appearance in federal courts – application hypothetical. 

LAWYERS – Application for leave to appear by a foreign lawyer – legislative provisions concerning appearance in federal courts – application hypothetical. 

WORDS AND PHRASES – “must not make”.

MIGRATION – application for student visa – whether applicant a genuine applicant for entry and stay as a student – whether applicant intends genuinely to stay in Australia temporarily  – whether Tribunal had regard to applicant’s offer of employment in Indonesia – whether genuine letter of support – application dismissed

MIGRATION - application for student visa – mandatory requirement to show current enrolment in course of study – applicant failed to provide evidence of Confirmation of Enrolment - criteria for grant of the visa not met – Tribunal compelled to affirm decision under review - no attendant jurisdictional error – 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 did not satisfy cl 500.212 of Sch 2 of the Migration Regulations 1994 (Cth) – whether Tribunal erred by failing to provide genuine consideration to Direction 69 – found no jurisdictional error on behalf of the Tribunal – Application dismissed. 

MIGRATION – judicial review of a decision of the Administrative Appeals Tribunal – student visa – no jurisdictional error established – application dismissed. 

MIGRATION – review of a decision of the Administrative Appeals Tribunal – protection visa – no jurisdictional error established – application dismissed.  

MIGRATION – Safe Haven Enterprise Visa – Whether the Immigration Assessment Authority (Authority) acted unreasonably, illogically or irrationally – Whether the Authority failed to exercise the power under s 473DC – Whether the Authority held the expertise or qualifications in the relevant and necessary areas – proposed grounds of judicial review have no merit – application dismissed 

MIGRATION – Class XA visa application – whether the Administrative Appeals Tribunal failed to conduct the review required by the Migration Act 1958 (Cth) – whether the Tribunal breached the natural justice requirements – whether the Tribunal’s decision was unreasonable and irrational and failed to take relevant considerations into account – two of the proposed grounds of judicial review have no merit – one ground of judicial review upheld –Tribunal decision quashed – matter remitted to the Tribunal 

MIGRATION – Medical Treatment visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or on behalf of the applicant – 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 – protection visa - applicant citizen of Malaysia – applicant of Indian Malaysian ethnicity – applicant claimed discrimination in employment on basis of his religion – country information indicated risk of such treatment on basis of race – Tribunal erred in failing to consider whether applicant would face serious harm constituted by significant economic hardship for reasons of race – error material and therefore jurisdictional – writ of certiorari issued – writ of mandamus issued

MIGRATION – Protection (Class XA) – judicial review of a decision of the Administrative Appeals Tribunal – failure to consider – unreasonableness – illogicality – no jurisdictional error established – application dismissed

MIGRATION – Protection (Class XA) (subclass 866) visa – judicial review of a decision of the Administrative Appeals Tribunal – unreasonableness – failure to intellectually engage – no jurisdictional error established – application dismissed 

MIGRATION –Application to review a decision of a Judicial Registrar – where Judicial Registrar summarily dismissed the Applicant’s application for judicial review – where application for judicial review does not have reasonable prospects of success – application to extend time to file the application to review the decision of the Registrar refused and 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 did not satisfy cl 500.212 of Sch 2 of the Migration Regulations 1994 (Cth) – whether Tribunal erred by failing to provide genuine consideration to Direction 69 – found no jurisdictional error on behalf of the Tribunal – Application dismissed. 

MIGRATION – Migration Act 1958 (Cth) – Application for Regional Employer Nomination (Class RN) (Subclass 187) visa – Administrative Appeals Tribunal not satisfied that the applicant had a valid nomination as required by cl.187.233(3) and affirmed Delegate’s decision to refuse the application for the Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa – application for judicial review – no meaningful ground of jurisdictional error asserted – no jurisdictional error established – application for judicial review dismissed.

INTELLECTUAL PROPERTY – copyright – applicant and respondent agreed to collaborate in the production of a book with the applicant agreeing to provide photographs and the respondent to compose the text – respondent published and sold a book containing photographs taken by the applicant without the applicant’s prior approval – whether the respondent has the applicant’s licence to reproduce the applicant’s photographs – the respondent did not have applicant’s licence – by publishing and selling the book the respondent infringed the applicant’s copyright in the photographs – the respondent also infringed the applicant’s copyright in photographs he had taken by the respondent uploading them to his business’s Facebook Page and to a webpage he operates – injunction, delivery up, and compensatory and additional damages awarded. 

MIGRATION – Dismissal for non-appearance – where parties were notified of the matter being relisted for a different time on the same date – where applicants emailed the Court on the morning of the hearing stating they could not attend - application dismissed 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal required to put concerns about applicant’s evidence to applicant and provide opportunity to comment or respond – whether Tribunal’s refusal to give applicant more time to provide material to Tribunal was unreasonable – no jurisdictional error established – application dismissed

PRACTICE AND PROCEDURE – costs – whether second applicant who was minor at time proceeding commenced should be ordered to pay respondent’s costs 

MIGRATION – Whether Tribunal failed to consider evidence or gave insufficient weight to evidence – whether Tribunal had duty to inquire – choice of country information   

MIGRATION – Judicial review application – decision of Immigration Assessment Authority – Shia Arab from Iraq – claims of fear of harm from ex-wife’s family in Iraq – whether failure to address a claim – whether error in relation to new information finding – whether failure to perform procedural duty in relation to consideration of new information – whether jurisdictional error 

FAIR WORK – application pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) (Act) for extension of time within which to make a general protections court application – whether fair and appropriate to grant the extension of time – extension granted. 

MIGRATION – Where there was a delay of 136 days in filing an application for review of the decision of the Tribunal – where there was no reasonable explanation provided in any affidavit for the delay – where the substantive grounds of review lacked merit and were not arguable – no jurisdictional error established – application dismissed.  

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether the Tribunal failed to comply with the requirements of s 359AA and s 359A of the Migration Act 1958 (Cth) - whether Applicant satisfied genuine temporary entrant criteria – no jurisdictional error established – application dismissed. 

MIGRATION – judicial review application – decision of the Administrative Appeals Tribunal refusing to grant student visa – whether applicant satisfied clause 500.212 – no jurisdictional error established – application dismissed.  

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant partner visa – whether Tribunal required to make finding as to whether applicant and sponsor were telling the truth – whether Tribunal required to make finding as to credibility or demeanour of applicant and sponsor – no jurisdictional error established 

MIGRATION – student (class TU) (subclass 500) visa – where visa application refused by delegate of the Minister – review of decision of the former Administrative Appeals Tribunal affirming delegate’s decision – where Tribunal found first applicant was not a genuine temporary entrant – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed 

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

MIGRATION – application for judicial review – decision of the Immigration Assessment Authority to refuse to grant the applicant a safe haven enterprise (subclass 790) visa – where the applicant claims that the Authority unreasonably refused to exercise its discretion to interview the applicant pursuant to section 473DB of the Migration Act 1958 (Cth)  – consideration of the reasonableness of the Authority’s decision to not invite the applicant to an interview – no jurisdictional error established – application dismissed with costs. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – no point of principle – application dismissed 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether the Tribunal considered relevant materials and issues – whether Tribunal was required to consider claims of persecution of Tao practitioners - no jurisdictional error established – application dismissed. 

INTELLECTUAL PROPERTY – Costs – where order made referring matter to mediation – where respondent was ordered to provide documents seven days before the scheduled date of the mediation – where respondent failed to comply with order but mediation nevertheless proceeded – whether in those circumstances the respondent should be ordered to pay the applicant’s costs of and in relation to the mediation – application dismissed because the applicant has not demonstrated that the respondent’s default caused the applicant to incur costs in relation to the mediation he would otherwise not have incurred – order made that parties pay their own costs of and in relation to the mediation.

INTELLECTUAL PROPERTY – copyright – applicant and respondent agreed to collaborate in the production of a book with the applicant agreeing to provide photographs and the respondent to compose the text – respondent published and sold a book containing photographs taken by the applicant without the applicant’s prior approval – whether the respondent has the applicant’s licence to reproduce the applicant’s photographs – the respondent did not have applicant’s licence – by publishing and selling the book the respondent infringed the applicant’s copyright in the photographs – the respondent also infringed the applicant’s copyright in photographs he had taken by the respondent uploading them to his business’s Facebook Page and to a webpage he operates – injunction, delivery up, and compensatory and additional damages awarded. 

INDUSTRIAL LAW – where the applicant claims that the respondent took adverse action against him in breach of sections 340(1) and 343(1) of the Fair Work Act 2009 (Cth) in commencing a Code of Conduct Investigation which ultimately led to the termination of his employment – where the applicant claims that the respondent took adverse action against him by discriminating against him as compared to other employees under section 351 of the Act –  consideration of whether the applicant was at a disadvantage in participating in the Code of Conduct Investigation – consideration of whether the respondent terminated the applicant’s employment for, or for reasons which included him exercising a workplace right – consideration of whether the respondent discriminated against the applicant within the meaning of section 351 – finding that there was no breach of sections 340(1), 343(1) or 351 in the circumstances – application dismissed. 

HUMAN RIGHTS – Discrimination and harassment – Australian Human Rights Commission claim limited to disability discrimination – claims of disability, race and sex discrimination and sexual harassment in proposed application.

PRACTICE AND PROCEDURE – Extension of time application – originating application filed out of time – factors for consideration – length of delay – explanation for delay – where multiple lodgment forms filed – whether affidavit required to be filed with application – whether address for service requirements met – whether medical evidence sufficient to explain delay prejudice – whether underlying claim has sufficient arguable merit. 

PRACTICE AND PROCEDURE – Application for summary dismissal– factors for consideration – whether reasonable prospects of success. WORDS AND PHRASES – “must not make”  

FAIR WORK – claim for the payment of monies – whether contravention of s 45 of the Fair Work Act 2009 (Cth) - whether failure to pay amounts payable pursuant to Social, Community, Home Care and Disability Services Industry Award 2010 - enquiry as to the extent of the applicants’ entitlements – no mention of Award in the contracts of employment – enquiry into correct classifications of the applicants’ roles under the Award 

MIGRATION – Protection (subclass 866) visa –Application for extension of time for filing application for judicial review of Tribunal’s decision – Significant delay in filing application – Whether substantive application has reasonable prosects of success – Whether Tribunal lacked jurisdiction due to application for review being filed out of time – Whether Tribunal could extend time – No reasonable prospects of success – Application for extension of time refused – Order for costs  

MIGRATION – Student (Temporary) (Class TU) (subclass 500) visa – Application for extension of time for filing application for judicial review of Tribunal’s decision – Extent and reason for delay in filing application – Whether substantive application has reasonable prospects of success – No reasonable prospects of success – Application for extension of time refused – Order for costs 

MIGRATION - Safe Haven Enterprise (Subclass 790) visa – Whether Tribunal failed to consider the totality of the evidence – Consideration of oral evidence provided at Tribunal hearing – translation of evidence – Whether assessment of all the applicant’s claims had been adversely impacted by findings of credibility – Unreasonable or illogical reasoning - Application dismissed. 

BANKRUPTCY – where parties invited to provide draft form of orders to give effect to findings recorded in substantive judgment – where substantive judgment recorded finding that failure of Trustee to obtain advice on capital gains tax engaged the supervisory jurisdiction of the Court – where substantive judgment contemplated that Trustee’s power of sale would be varied to oblige the Trustee to obtain updated valuations of real estate and to offer the second respondent a first right of refusal to purchase the Trustee’s 50% interest in the property – where parties failed to agree on appropriate form of order – where orders sought by the second respondent travelled beyond findings recorded in the substantive judgment – where sale orders made in substantially the form sought by the Trustee – where order made for the Trustee to pay the second respondent’s costs of the substantive proceeding despite the second respondent not enjoying success on every “issue”

PRACTICE AND PROCEDURE – Application for leave to reopen where applicant’s evidentiary case had closed but final addresses had not been completed and judgment had not been reserved – limited tender of potentially relevant documents sought – application unopposed – where third and fourth respondents also sought leave to rely upon further evidence – leave to reopen granted and associated timetable ordered by consent 

MIGRATION – Regional Employer Nomination visa – decision of the then Administrative Appeals Tribunal – matter listed for a final hearing – applicant offshore – no appearance by or on behalf of the applicant – 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 – Protection visa – decision of the then Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or on behalf of the applicant – application dismissed for non-appearance 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 – decision of Administrative Appeals Tribunal cancelling protection visa – whether Tribunal failed to give proper consideration to best interests of applicant’s children – whether Tribunal failed to consider differential interests of applicant’s Australian citizen child – no jurisdictional error established – application dismissed

INDUSTRIAL LAW – Practice and procedure – application to set aside notices to produce – whether issuer demonstrated legitimate forensic purpose – application to set aside one of the notices to produce dismissed and part of another notice to produce set aside. 

MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal’s decision was “inconsistent” with that of the delegate’s decision – whether the Tribunal failed to properly consider the evidence before it or failed to properly comply with relevant legislative provisions – no jurisdictional error – application dismissed.

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or on behalf of the applicant – 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 – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to properly assess the complementary protection criteria – whether the Tribunal failed to address the applicant’s claims in relation to economic hardship – no jurisdictional error – application dismissed.

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or on behalf of the applicant – 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).