Judgments

MIGRATION – Application for judicial review of decision made by Administrative Appeals Tribunal – business visa –no jurisdictional error established – application dismissed.

MIGRATION – Extension of Time Application – where the application for review was 612 days out of time – where the applicant did not provide an adequate explanation for the delay – where prejudice to the public interest caused by excessive delay weighs against grant of the extension of time – where the proposed ground of judicial review has no reasonable prospect of success – application dismissed 

MIGRATION – Judicial Review – Administrative Appeals Tribunal – Protection visa – Bangladesh –whether the Tribunal failed to engage in genuine and realistic consideration of the applicant’s claims and/or failed to consider an integer of his claims – whether the Tribunal failed to comply with s 424A or s 424AA to put adverse information to the applicant – whether the Tribunal’s finding that the applicant had not been subject to false cases in Bangladesh lacked rational and logical support and was formed on mere assumptions and/or was irrational, illogical or unreasonable – whether the Tribunal’s breach of s 418 constitutes jurisdictional error – application dismissed 

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – whether the Tribunal misconstrued significant harm – whether the Tribunal failed to investigate the applicant’s claims – whether the Tribunal denied the applicant procedural fairness – jurisdictional error not established – application dismissed with costs. 

MIGRATION- Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider cogent evidence – grounds not particularised- where contradictory evidence-no jurisdictional error-application dismissed 

MIGRATION- Student visa – decision of the Administrative Appeals Tribunal – incorrect information provided by applicant – procedures of Tribunal - unreasonableness - failure to take into account relevant considerations – application dismissed 

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – whether the Tribunal failed to investigate the applicant’s claims – whether the Tribunal misconstrued significant harm – whether the Tribunal’s decision was legally unreasonable – jurisdictional error not established – application dismissed with costs 

BANKRUPTCY – Application to set aside or stay a bankruptcy notice pending pursuit of separate proceedings – where notice itself is not subject of challenge – whether applicant has a counter claim, set off or cross demand – whether the bankruptcy notice constitutes an abuse of process – whether time for compliance with the bankruptcy notice should be extended – application dismissed.

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa - Tribunal dismissed application on the basis of applicant’s non-appearance at Tribunal hearing - Whether Tribunal validly invited the Applicant to appear - Whether Tribunal exercised its discretion reasonably – no jurisdictional error established – application dismissed. 

MIGRATION LAW – 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 – student visa – decision of the Administrative Appeals Tribunal – treatment of prejudicial material – apprehended bias – where fair-minded lay observer might consider Tribunal affected by subconscious bias – futility – application succeeds – writs issued. 

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – whether the Tribunal was affected by apprehended bias – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to take evidence into account – no jurisdictional error established – application dismissed with costs  PRACTICE AND PROCEDURE – APPLICATION FOR AN ADJOURNMENT AND REFERRAL FOR LEGAL ASSISTANCE – where the applicant took recent steps to seek legal assistance – where there is no certainty of legal representation – where a party has no right to apply for a referral for legal assistance – where the discretion to adjourn the hearing or refer the applicant for legal assistance is not enlivened 

MIGRATION – application for judicial review – whether Tribunal correctly considered subreg 2.72(10)(f) of the Migration Regulations 1994 (Cth) – meaning of the word ‘genuine’ – whether open to the Tribunal to consider financial circumstances of the nominator – no jurisdictional error established – application dismissed 

MIGRATION - Safe Haven Enterprise Visa (Class XE) (Subclass 790) visa – grounds of review invite the Court to undertake impermissible merits review – allegation of illogicality, unreasonableness in the decision under review – no breach of s 473 DD of the Migration Act 1958 (Cth) – no jurisdictional error established –  application dismissed with costs 

MIGRATION – Judicial review – Temporary Graduate visa – English language requirement – minimum overall test score met but test not undertaken within three years prior to application – invitation to impermissibly engage in merits review of the delegate’s decision – allegations of procedural unfairness – error found but not material – jurisdictional error not established – application dismissed.

MIGRATION – extension of time – seven days out of time – where related judicial review matter dismissed – no arguable case for jurisdictional error – application dismissed 

MIGRATION – Application for judicial review of decision made by Administrative Appeals Tribunal – whether the Tribunal’s reasoning was unreasonable in relation to accepting the applicant’s claim about potential harm – whether the Tribunal acted unfairly – no jurisdictional error established – application dismissed.   

MIGRATION – judicial review – application to review registrar’s decision – review application filed 16 days out of time – whether extension of time should be granted – unsatisfactory explanation for delay – no arguable case of jurisdictional error – application dismissed 

INDUSTRIAL LAW – GENERAL PROTECTIONS – application for dismissal on the basis of the applicant’s default – where the applicant is self-represented – where the applicant has not complied with orders to file and serve trial evidence or an outline of submissions – where the applicant was not prepared for the final hearing – where the applicant was found to be in default – consideration of factors relevant to exercise of discretion – order made dismissing the proceedings in the applicant’s default 

INDUSTRIAL LAW - application in a proceeding for default judgment pursuant to r 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – failure to comply with Court orders – failure to file Notices of Address for Service – failure to attend Court  

INDUSTRIAL LAW – General protections application – whether there were misleading and deceptive inducements made by the employer – whether the complaints made by the applicant fall within the definition of a complaint or inquiry – whether those complaints satisfy and fall within the definition of workplace right pursuant to section 341(1)(c) – whether there were multiple decision makers involved in the applicant’s dismissal – what was the substantive and operative reason for the applicants dismissal – is that reason protected or prohibited under the Fair Work Act – whether the applicant was dismissed within the probationary period - evidentiary matters to be considered 

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa to applicant from Iran – Direction No 84 given by Minister under s 499 of Act – obligation of Tribunal pursuant to Direction No 84 to take into account DFAT country information assessment where relevant – Tribunal did not take into account or consider most recent DFAT country information assessment concerning Iran – whether information in DFAT assessment was relevant to Tribunal’s decision – whether any failure by Tribunal to comply with Direction No 84 and s 499 of Act was material – whether Tribunal’s decision could realistically have been different if Tribunal had considered DFAT assessment. 

MIGRATION – Whether the Tribunal erred in failing to address and make findings in respect of each identified possible contravention of a provision of the Act as set out in a Notice of Intention to Consider Cancellation of a visa – no jurisdictional error established – application dismissed.  

MIGRATION – Whether Immigration Assessment Authority failed to engage an active intellectual process resulting in unreasonable, illogical and irrational credibility findings. 

MIGRATION – Whether Immigration Assessment Authority decision is attended by reasonable apprehension of bias – whether Authority failed to consider claims – whether error in relation to treatment of data breach – whether IMMI17/015 is invalid insofar as it purports to apply to the applicant.

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

INDUSTRIAL LAW – application for default judgment against company and its sole director – default judgment – declarations made.

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

MIGRATION – student visa – application for review of a decision of the Administrative Appeals Tribunal – whether the Tribunal was unreasonable – whether the Tribunal erred in affording procedural fairness – no jurisdictional error established – application dismissed.

INDUSTRIAL LAW – alleged breach of general protections – workplace right – adverse action – onus – whether workplace right to a safe workplace or a safe system of work – whether workplace right to workers compensation – whether a workplace right to the provision of medical assistance – whether workplace right to payments for medical treatment before acceptance of liability by workers compensation insurer – whether workplace right to be provided with light duties - whether coercion – whether discouragement constitutes coercion – whether undue influence or pressure – whether false or misleading misrepresentation made knowingly or recklessly – whether discrimination on basis of race, disability or national extraction – whether coercion concerning allocation  of particular duties to employee – whether consultation concerning change to regular roster or a change to ordinary working hours.

PRACTICE AND PROCEDURE – Application to reopen proceedings and file further materials – consideration of relevant factors – allegations of collusion and corruption – alleged conflicts of interest of respondent’s barrister, barrister’s parents and judicial officers – allegations of serious misconduct against respondent’s barrister – allegations irrelevant and scandalous – some material previously struck out – length of hearing – finality of litigation

BANKRUPTCY – Costs – application pursuant to order previously made that costs of applicant be set or be referred for taxation – applicant’s costs set.

MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant applicant protection visa – no point of principle – application dismissed 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant bridging visa – whether earlier protection visa application finally determined – whether earlier application for judicial review of protection visa refusal decision not finally determined – application dismissed 

MIGRATION – related applications for judicial review of decisions of the Administrative Appeals Tribunal – where the Tribunal’s finding that a claim of mistaken identity was unsupported overlooked support for the claim in Australian Border Force records before the Tribunal – whether findings regarding inconsistencies were open – whether the Tribunal considered other evidence that was before it – materiality – writs issued 

MIGRATION - judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visas – whether Tribunal erred in not accepting applicant’s claim that Colombian authorities were unable or unwilling to protect applicant – whether Tribunal overlooked or failed to consider items of information in documents Tribunal otherwise considered – whether findings of Tribunal supported by probative evidence – whether Tribunal assessed significance of findings of inconsistencies in applicant’s evidence – no jurisdictional error established - application dismissed 

MIGRATION – Administrative Appeals Tribunal – Prospective Marriage (Class TO) (Subclass 300) visa – whether the Tribunal’s reasoning was illogical, irrational or unreasonable – where there was inconsistencies in the applicant’s evidence to the Tribunal -adverse credibility findings made – no jurisdictional error established – application dismissed with costs.  

MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal failed to give active consideration to clearly articulated claims – whether the Tribunal fell into jurisdictional error by adopting legally unreasonable reasoning in relation to its findings regarding the applicant’s credibility – both grounds of judicial review have no merit – application dismissed 

MIGRATION – Administrative Appeals Tribunal – cancellation of a Spouse (subclass 820) visa and Bridging A (subclass 010) visa – where the applicant had previous criminal conviction charges – suppression order made in regard to a  s 359A letter – whether the Tribunal failed to comply with the requirements of s 359A –  whether the Tribunal denied the applicant an opportunity for a physical hearing –  no jurisdictional error made out – application dismissed with costs. 

MIGRATION – Administrative Review Tribunal – where there were significant discrepancies in the applicant’s evidence –  adverse credibility findings – where the grounds of judicial review do not reveal jurisdictional error – no jurisdictional error established – application  dismissed with costs

MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed. 

MIGRATION – Protection (class XA) (subclass 866) visa – visa refused – decision of the (then) Administrative Appeals Tribunal to affirm delegate’s decision – application for extension of time – where proposed grounds of review lack merit – no real prospects of success – application for extension of time refused – application dismissed

PRACTICE AND PROCEDURE – application for interlocutory injunction to restrain first respondent from unlawfully terminating the applicant from his employment – strength of prima facie case – balance of convenience – nature and terms of the applicant’s employment in dispute – substantial dispute about the status quo – applicant led no evidence about the nature of his employment with the first respondent – no sufficient prospects of success to warrant the preservation of the status quo – application for interlocutory relief dismissed

CONSUMER LAW – contract of employment – whether respondent made misleading or deceptive representations in relation to terms of engagement – whether written terms superseded alleged oral representations

INDUSTRIAL LAW – Fair Work Act – alleged contravention of industrial instrument – claim for overtime under applicable enterprise agreement – where applicant claims to have worked over 60 hours per week – whether applicant can establish hours actually worked – whether salary paid to applicant contemplates and compensates for additional hours – whether respondent authorised the working of additional hours – operation of set-off clause in contract of employment.  INDUSTRIAL LAW – adverse action – where applicant claims to have made complaints and inquiries about employment – whether applicant exercised workplace rights within meaning of Fair Work Act – where applicant dismissed from employment after involvement in workplace incident – whether applicant dismissed for reasons which included the exercise of workplace rights – inquiry into the subjective reasons of decision-maker – whether employer has discharged the statutory presumption under s 361 of the Fair Work Act 

INDUSTRIAL LAW – Where applicant failed to commence proceedings within 14 days of days of certificate issued by Fair Work Commission – whether time should be extended – where basis for delay said to include medical grounds – where applicant altered medical certificate – extension of time refused

INTELLECTUAL PROPERTY – final relief in relation to established causes of action based on copyright infringement, breach of confidence, and breach of s 183(1) of the Corporations Act 2001 (Cth) (Corporations Act) – whether principles relating to springboard injunctions apply to the granting of injunctions in relation to copyright infringement and the granting of injunctions pursuant to s 1324(1) of the Corporations Act – whether the applicant’s disclaiming a claim for copyright infringement based on the three dimensional reproduction of the copyright works is a bar to granting an injunction restraining the two dimensional  reproduction of the copyright works and the granting of delivery up orders in relation to two dimensional infringing reproductions of the copyright works - whether in relation to the cause of action based on breach of confidence information held to be confidential is in the public domain such as to warrant at most the granting of a springboard injunction rather than a permanent injunction restraining the use of the information that was held to be confidential – declarations, permanent injunctions, and other orders made – the making of a delivery up order and orders in relation to costs postponed.

INTELLECTUAL PROPERTY – Practice and procedure – whether application for a stay of order for the payment of profit pending the hearing of an appeal should be granted – stay granted on terms that respondents pay part of the profits ordered.

MIGRATION – application for Protection (Class XA) (Subclass 866) visa – Administrative Appeals Tribunal not satisfied that applicant is a person to whom Australia owes protection obligations as outlined in s36(a) or (aa) and affirmed Delegate’s decision to refuse the application for the Protection (Class XA) (Subclass 866) visa – application for judicial review – no meaningful ground of jurisdictional error asserted – jurisdictional error not established – application for judicial review dismissed.

MIGRATION – Student 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 r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) 

MIGRATION – partner 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 r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)  

MIGRATION – Student visa refusal – decision of the Administrative Appeals Tribunal to confirm its dismissal for non-appearance – where applicant says he was not made aware of hearing by reason of his representative – where the Tribunal refused an application for adjournment –where Tribunal found it was not appropriate to reinstate the application – application dismissed

MIGRATION – Application for judicial review of decision of the (then) Administrative Appeals Tribunal – where Tribunal made adverse finding about the First Applicant’s immigration history in reliance on her own evidence – whether Tribunal applied incorrect test, took into account an irrelevant consideration and/or was illogical and unreasonable – whether demonstration of apprehended bias – no jurisdictional error established and application dismissed with costs.