Judgments

MIGRATION – Protection (subclass 866) visa – Application for review of Registrar’s dismissal of reinstatement application – Extension of time sought – Consideration of length of time and reasons for delay in filing review application – Consideration of reinstatement application –  Reasons for non-attendance at court leading to dismissal of substantive application wholly inadequate – evidence of applicant unreliable – Substantive application raised no arguable grounds – Extension of time refused  – Application for review dismissed with costs

MIGRATION – Protection (Class XA) (subclass 866) visa – Refugee Review Tribunal – Application for Extension of Time – Delay of 5,184 days – No arguable jurisdictional error on proposed grounds – Extension of Time refused – Application for judicial review dismissed with costs

MIGRATION – protection visa – application for review of a summary dismissal decision made by a Registrar – where an application for review of the delegate’s decision was lodged out of time and therefore Tribunal lacked jurisdiction – no jurisdictional error identified - application cannot succeed and is dismissed with costs

BANKRUPTCY – VESTING ORDER AS TO DISCLAIMED PROPERTY – Where a bankrupt was the registered proprietor of Torrens system land – Where the Trustee disclaimed the property – Where the State of Victoria sought a vesting order – Where the Court considered it was just and equitable for the vesting of the property in the State of Victoria – Orders made

FAIR WORK – general protections application lodged one day after proscribed time – where short delay due to representative error - no particular prejudice to the respondent - at least the basis of a claim articulated – extension of time granted

BANKRUPTCY – Interlocutory Application – Application to set aside sequestration order – Application to recuse – Procedural fairness – Actual or apprehended bias – Application dismissed  

BANKRUPTCY – Interlocutory Application – Ex tempore judgment – Application dismissed

FAIR WORK – alleged breach of contract – alleged underpayments and unlawful deductions in contravention of the Fair Work Act 2009 (Cth) with cross claim to rectify alleged overpayment – where the Applicant’s remuneration was reduced following the First Respondent’s loss of a significant contract and, subsequently, unilateral deductions were made.

GENERAL PROTECTIONS – various adverse actions including dismissal taken in alleged contravention of s.340 of the Act – where Applicant had complained about remuneration and was summarily dismissed for alleged serious misconduct in respect of communications with clients. 

MIGRATION – Decision of Administrative Appeals Tribunal – protection visa – where three Tribunal hearings held – whether failure by Tribunal to consider or engage with relevant evidence – jurisdictional error established – writs issued

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) – whether the IAA’s decision was legally unreasonable –whether the IAA failed to consider relevant considerations or claims – application dismissed

CONSTITUTION – Exercise of delegated power by Registrar – nature of de novo review

MIGRATION – Registrar’s decision affirmed and review dismissed as no arguable case for extension of time

MIGRATION – Protection (Class XA) (Subclass 866) visa – Application for judicial review – Whether wrong legal test applied – Correct criteria applied – Whether unreasonable finding of effective state protection – Finding of effective state protection open on country information - Decision not legally unreasonable – No jurisdictional error found – Application for judicial review dismissed – Costs ordered.

MIGRATION – Extension of time in which to commence s 476 Migration Act review – foreshadowed challenge to rationally based credit findings of the Tribunal cannot succeed – not in the interests of justice to extend time – application to do so dismissed

MIGRATION – application for an extension of time – decision made by the Immigration Assessment Authority – protection visa – whether the underlying application for judicial review has merit – whether the Authority’s decision was unreasonable – underlying application has limited prospects of success – extension of time refused. 

BANKRUPTCY – unauthorised occupation – property of bankrupt held in their capacity as executor – trustee’s right of indemnity  bankrupt as executor – application for vacant possession and sale of property – property registered in name of bankrupt in their capacity as executor – where bankrupt and the respondents are beneficiaries to deceased estate - where subject property has vested in trustee - where respondents in unauthorised occupation of the property –– where use of property incurs debts and deterioration of value - whether bankrupt’s right of indemnity against deceased estate vests as property in the trustee – where sale of property is necessary – bankruptcy trustee entitled to vacant possession and power of sale – partial distribution of proceeds of sale. 

INTELLECTUAL PROPERTY – copyright in the performance in public of musical and associated literary works (public performance rights) – where musical works were being performed at premises during fitness sessions conducted by five corporate respondents (S1 respondents) and three other companies (S1 companies) – whether the applicant was the owner or exclusive licensee of the public performance rights in musical works the applicant was able to prove were publicly performed during the fitness sessions - applicant so proves – whether by each of the S1 respondents and S1 companies performing those musical works they each infringed the applicant’s exclusive rights to perform in public those musical works – infringement established - whether the fifth respondent as director and CEO of the businesses carried out by the S1 respondents and S1 companies authorised each of the S1 respondents and S1 companies to infringe the applicant’s exclusive rights to perform in public those musical works – fifth respondent authorised those infringements – declarations made, injunctions granted, and damages and additional damages awarded.

INTELLECTUAL PROPERTY – practice and procedure – application for leave to withdraw admissions – application dismissed.

INTELLECTUAL PROPERTY – evidence – objection to the admissibility of recording of events that occurred at gyms – whether the recordings record private conversations within the meaning of the Surveillance Devices Act 2007 (NSW) – objection overruled. 

MIGRATION – child visa – decision of the then Administrative Appeals Tribunal – cl 802.214 of the Migration Regulations 1994 (Cth) – whether the Tribunal asked itself the wrong question or applied the wrong test – whether the Tribunal failed to address a claim – meaning of “been undertaking a full-time course of study” – reliance upon a different decision of the Tribunal – no jurisdictional error established – application dismissed.

MIGRATION – Visitor (Class FA) visa – decision of the Administrative Appeals Tribunal – genuine temporary entrant criterion – whether the Tribunal failed to lawfully apply cl 600.211 of the Migration Regulations 1994 (Cth) – whether the Tribunal failed to give proper weight to the applicant’s evidence – whether the Tribunal made an irrational or illogical finding – whether the Tribunal failed to consider all relevant matters or evidence – whether the Tribunal considered irrelevant matters or evidence – whether the applicant was denied a fair hearing – whether the Tribunal was biased or acted in bad faith – whether the Tribunal lacked jurisdiction – whether the Tribunal unreasonably exercised a discretionary power – whether the Tribunal’s decision is affected by jurisdictional error – no jurisdictional error established – application dismissed. 

MIGRATION – Tribunal found Vietnamese protection visa applicant’s fears of persecution neither existed nor were well founded – Tribunal did respond to applicant’s arguments and did not make an error of the sort identified in Appellant S395/2002 – application dismissed.

MIGRATION – application for judicial review of Administrative Appeals Tribunal decision – whether Tribunal erred in finding that it had no jurisdiction – consideration of whether notification of decision to refuse the applicant’s visa satisfied the requirements of s.66(2)(d)(ii) – notification deemed to be invalid –application is allowed with costs.  

MIGRATION – Employer Nomination (Subclass 186) visa - Review of registrar’s decision to summarily dismiss application for judicial review – Review application filed 20 days out of time – First applicant not subject to approved nomination – No material jurisdictional error identified - Application for review dismissed.  

MIGRATION – Applicant applied twice to Tribunal in relation to delegate’s visa decision – Tribunal had no jurisdiction to review repeat application – application for extension in which to bring application for review – not in interests of justice to extend time – new evidence not admissible.

MIGRATION – application for review of a Registrar’s decision – hearing de novo of first respondent’s application for summary judgment – where applicants applied for judicial review of decision of Administrative Appeals Tribunal – Temporary Graduate (Post-Study Work) (subclass 485) visa – where Registrar summarily dismissed the applicants’ application for judicial review – whether Tribunal erred by conducting the hearing via telephone – found Tribunal conducted the hearing pursuant to the obligations in s 366(1)(a) of the Migration Act 1958 (Cth) – whether the Tribunal afforded the applicants procedural fairness – found the applicants were afforded procedural fairness – found grounds of review have no reasonable prospect of success – application dismissed. 

PRACTICE AND PROCEDURE – fair work –  interlocutory application to withdraw admissions – where respondent made admissions in defence and filed amended defence withdrawing admissions – where applicant did not consent to withdrawal – arguable case that admissions were incorrect - limited prejudice to applicant to meet claims in amended defence – leave granted to withdraw admissions – interlocutory application to strike out those parts of defence withdrawing earlier admissions – application dismissed. 

PRACTICE AND PROCEDURE – application for substituted service – whether it is impracticable to serve documents by hand – whether the proposed methods of service will result in the documents coming to the attention of the second respondent – orders for substituted service made.

FAIR WORK – assessment of pecuniary penalties following respondents’ admission of liability – declaration of contravention of civil remedy provisions of the Fair Work Act 2009 (Cth) made previously – orders made.

FAIR WORK – general protection –  adverse action – workplace right relating to complaint about employment -adverse action – applicant’s employment terminated for cause following inquiry – substantive and operative reason for adverse action – interlocutory application for interim reinstatement – serious issue to be tried – balance of convenience – allegations of misconduct from both parties – where the Applicant asserts she gets along well with staff – where the Respondents assert irreparable damage and mistrust between the parties – matters to be considered. 

INDUSTRIAL LAW – INTERLOCUTORY APPLICATION – applicant seeking orders on default of first respondent – first respondent failed to defend proceedings with due diligence – appropriate to make orders sought.

INDUSTRIAL LAW – FAIR WORK – application for default judgment pursuant to r 5.11(c) of the Federal Circuit Court and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) – applicant seeking declarations of contraventions of the first respondent of ss 44, 45, 323, 340 and 536 of the Fair Work Act 2009 (Cth) – contraventions of civil remedy provisions – second and third respondents alleged to be involved in particular contraventions of the first respondent – default judgment entered – declarations of contraventions and orders for respondents to pay unpaid monies with interest, payment of loss of income, general damages – matter listed for penalty hearing. 

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal’s refusal of an adjournment was legally unreasonable – futility – application dismissed.

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – whether the applicant was denied procedural fairness – whether the Tribunal failed to take into account relevant considerations or evidence – whether the Tribunal’s decision was otherwise affected by legally relevant error – application dismissed.

MIGRATION – application for judicial review – Student (Temporary) (Class TU) (Subclass 500) visa – where Administrative Appeals Tribunal affirmed decision not to grant the applicants the visa – where the Tribunal found that the first applicant provided false or misleading information and therefore did not satisfy public interest criterion  4020 – whether the Tribunal denied the applicants natural justice – found that the Tribunal afforded the applicants natural justice pursuant to s 422B of the Migration Act 1958 (Cth) –  where the Tribunal decision is affected by bias – found that a fair-minded and appropriately informed lay observer would not reasonably apprehend bias on the part of the Tribunal – where the applicants raised an allegation of fraud on behalf of an immigration agent – found fraud not established – application dismissed. 

MIGRATION – Whether Tribunal conflated claims, failed to carry out forward-looking test and failed to engage with claims.

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal’s decision was unreasonable or illogical – application dismissed.

MIGRATION – judicial review – decision of Administrative Review Tribunal refusing to grant protection visa – applicant absent from Court hearing – dismissal for non-appearance.

MIGRATION – Judicial review – Protection (Class XA) (Subclass 866) visa – Whether the Administrative Appeals Tribunal failed to comply with s 425(1) of the Migration Act 1958 (Cth) in failing to inform the first applicant of a dispositive issue in relation to country information – Whether the Tribunal failed to consider a claim or an integer of a claim being that the first applicant would be targeted by the Nepal Communist Party because of both his claim based on political opinion and his claim to be a member of a social group who was perceived as being wealthy due to his time overseas – Whether the Tribunal misused country information as to the treatment of returnees – No jurisdictional error disclosed – Application dismissed.

MIGRATION – judicial review – where the Administrative Appeals Tribunal (the Tribunal) refused to grant the applicant a protection visa – alleged the Tribunal erred by placing weight on irrelevant material – alleged the Tribunal erred by failing to invite the applicant to comment on information pursuant to s 424A or s 424AA – alleged the Tribunal erred by failing to consider a particular social group (PSG) – alleged the Tribunal erred by failing to consider all the material before it – no jurisdictional error disclosed – application dismissed. 

MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa – Review of registrar’s decision to dismiss reinstatement application – Whether any reasonable merit or any prospects of success in the application for judicial review – Whether in interest of justice to reinstate application for judicial review – Explanation for failing to appear inadequate – No reasonable prospects - Application dismissed.

MIGRATION – judicial review – Administrative Appeals Tribunal (the Tribunal) affirmed delegate’s decision refusing to grant a protection visa – Federal Court remitted matter to the Tribunal – whether the Tribunal failed to consider an integer of the claim – whether the Tribunal failed to complete the statutory review – whether the Tribunal failed to consider the applicant’s capacity to present arguments and give evidence – no jurisdictional error disclosed – application dismissed. 

MIGRATION – judicial review – extension of time application – where the Administrative Appeals Tribunal (the Tribunal) refused the grant of a protection visa – where there are no merits to the proposed application for judicial review – application dismissed.

MIGRATION – Ex Tempore – Administrative Appeals Tribunal - Regional Sponsored Migration Scheme (subclass 187) visa– no approved nominator – where the applicant did not meet cl 187.233(3) – three grounds of judicial review – whether the Tribunal fell into error – whether the Tribunal failed to consider evidence – whether the Tribunal failed to apply the law – no jurisdictional error established – application dismissed with costs. 

FAIR WORK – Prosecution for contraventions of the Fair Work Act – liquidation of first respondent employer –– admissions that Compliance Notice was not satisfied –underpayment of employees who suffered loss – admitted failure to provide payslips – finding by admission that second respondent involved in contraventions – imposition of civil penalties to be paid by the second respondent to the Commonwealth.

MIGRATION – Ex Tempore – Medical Treatment (Visitor) (Class UB) (subclass 602) – Administrative Appeals Tribunal – four grounds of judicial review – whether the Tribunal failed to consider evidence – allegation of bias – grounds of judicial review have no merit – application dismissed with costs.

BANKRUPTCY – application for delivery of vacant possession of property and for orders for sale of property – property vested in the trustees pursuant to ss 58 and 116 of the Bankruptcy Act 1966 (Cth) – application allowed – orders made consistent with trustees’ obligations under s 30 of the Act. 

PRACTICE AND PROCEDURE – costs – application by successful applicant for costs in excess of scale amount – whether sufficient reason and in interests of justice to order costs in excess of scale amount – whether evidence in affidavit in support of application for costs adequate or sufficient.

PRACTICE AND PROCEDURE – costs – application by unsuccessful party for costs thrown away by late service of amended application. 

MIGRATION – Extension of time in which bring proceeding – declined as no arguable ground of review and no adequate explanation for the delay.  

MIGRATION – application for reinstatement of proceeding – application for judicial review summarily dismissed by a judicial registrar – application for review of a registrar’s decision dismissed for non-appearance – underlying application for judicial review has limited prospects of success – reinstatement application dismissed. 

MIGRATION – application for judicial review – decision made by the Immigration Assessment Authority – protection visa – whether the IAA’s decision unreasonable or illogical – IAA made coherent factual findings – application dismissed. 

MIGRATION – application for judicial review – decision made by the Administrative Appeals Tribunal – protection visa – whether the Tribunal complied with ss 424A, 424AA of the Migration Act 1958 (Cth) – meaning of ‘information’ for the purposes of ss 424A, 424AA – Tribunal not required to disclose its thought process – application dismissed.