Judgments

INDUSTRIAL LAW – General protections – where employer issues a direction requiring employees to wear face masks at the workplace or provide evidence they are exempt from being required to wear face marks – where employee provides statutory declaration in support of exemption from being required to wear a face mask – where the employer informs the employee that the statutory declaration is invalid and directs the employee to leave the employer’s premises – where the employer sends letter alleging employee failed to comply with employer’s direction and public health order that the employee wear a face mask at the employer’s premises and for that reason engaged in misconduct – where the employer invites the employee to attend a show cause meeting to respond to the allegation – where employee dismissed the employee from his employment – whether employee held or exercised any workplace rights within the meaning of s 341 of the Fair Work Act 2009 (Cth) (FW Act) – whether the employer took adverse action – whether the employer did not take adverse action because the employee held or exercised workplace rights or because the applicant had a disability on the basis of which he claimed an exemption from wearing a face mask – employer took adverse action against the employee because the employee failed to comply with public health order on the employer’s premises – application dismissed. 

MIGRATION – application for judicial review of Administrative Appeals Tribunal decision that it had no jurisdiction to review a partner visa refusal because the prescribed filing fee was not paid within a reasonable period – where applicant also complained that the Tribunal officer’s fee refusal decision was incorrect – no jurisdictional error established, application is dismissed with costs.

MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise visa – where the delegate’s refusal decision had been before the Authority on three previous occasions – extensive procedural history – whether Authority unreasonably failed to exercise its discretion under s 473DC – whether the Authority failed to consider a claim before it – whether the Authority failed to consider the risk to the applicant as a result of critical social media posts – comprehensive consideration of issues by the Authority – no jurisdictional error established – application dismissed

MIGRATION – student visa – whether applicant is a genuine temporary entrant – consideration of Ministerial Direction No. 69 – no grounds of jurisdictional error established – application dismissed.

MIGRATION – Application for extension of time to bring application for review – where the substantive application for review was without merit and futile – where application for extension of time dismissed accordingly.

MIGRATION -  protection visa – application for judicial review of decision of Administrative Appeals Tribunal affirming refusal of visa – whether Tribunal failed to consider all of the applicant’s claims for protection – where applicant seeks protection as a vulnerable woman and single female without male protection – whether claim to fear sexual harassment made – whether claim clearly emerged or squarely raised on the material before the Tribunal – where multiple other claims made by applicant – where Tribunal would have to construct claim for the applicant – no error revealed

MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizen of Sri Lanka of Tamil ethnicity and Hindu religion – Safe Haven Enterprise visa - whether new information for the purposes of s 473DD of the Migration Act 1958 (Cth) to be considered – where Tamil diaspora claim – where photographic evidence of applicant’s alleged Tamil diaspora activities in Australia – relevance – probative value – whether test as to exceptional circumstances misconstrued – whether test as to what constitutes credible personal information misconstrued – whether material jurisdictional error – writs issued

MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Temporary Protection visa – consideration of whether the Authority committed a jurisdictional error in its application of s 473DD of the Migration Act 1958 (Cth) – whether the Authority imported a requirement that the new information be true as opposed to ‘credible’ – whether the new information could not have been provided to the delegate for the Minister includes external limitations only – where applicant did not provide information about his claims to fear harm based on his sexuality – no jurisdictional error established – application dismissed

MIGRATION – extension of time – 318 days out of time – significant delay – applicant purportedly lost job during COVID-19 pandemic – applicant claims unable to afford court filing fees due to financial difficulties – insufficient evidence – impecuniosity irrelevant – inadequate explanation for delay – application dismissed

MIGRATION – application for judicial review of Administrative Appeals Tribunal decision that it had no jurisdiction to review a partner visa refusal because the applicant had no standing – where the delegate was not satisfied of a de facto or spouse relationship and, before the tribunal on review, the spouse withdrew sponsorship – where visa applicant sought to reopen the case on grounds of family violence but had no standing under s.347(2)(b) of the Migration Act 1958 (Cth) – no jurisdictional error established, application is dismissed with costs.

MIGRATION – Extension of Time – Protection visa  – lengthy delay and inadequate explanation for that delay – no reasonably arguable case for jurisdictional error –  application dismissed.

INTELLECTUAL PROPERTY – Costs – on 15 March 2024 the Court ordered that the applicant pay the costs of the respondents but reserved liberty to the respondents to apply for their costs to be assessed according to Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) or on some other basis – the respondents applied for costs to be assessed according to Part 1 of Schedule 2 to the GFL Rules – whether counsel’s fees are recoverable under item 11 of Part 1 of Schedule 2 to the GFL Rules or may only be recovered under item 10 as an advocacy loading – counsel’s fees are recoverable only as an advocacy loading – costs of the respondents assessed on that basis.

BANKRUPTCY – application to join Official Receiver to proceedings – where date of lodging Statement of Affairs in issue – determining all issues in dispute - application granted

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – whether the Authority failed to properly consider the applicant’s claims – whether the Authority applied the wrong legal test – whether the Authority denied the applicant procedural fairness – whether the Authority unreasonably failed to exercise its discretion in s 473DC of the Migration Act 1958 (Cth) or its general powers in the conduct of review to seek new information or new submissions – no jurisdictional error – application dismissed.

MIGRATION – Extension of Time – Protection visa  – lengthy delay and inadequate explanation for that delay – no reasonably arguable case for jurisdictional error –  application dismissed.

MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizen of Sri Lanka of Tamil ethnicity and Hindu religion – Safe Haven Enterprise visa - whether new information for the purposes of s 473DD of the Migration Act 1958 (Cth) to be considered – where Tamil diaspora claim – where photographic evidence of applicant’s alleged Tamil diaspora activities in Australia – relevance – probative value – whether test as to exceptional circumstances misconstrued – whether test as to what constitutes credible personal information misconstrued – whether material jurisdictional error – writs issued 

MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – whether the Tribunal failed to act on the correct principle, correctly applied, in that it wrongly treated “substantial component” and meaning “majority” – whether the decision of the Tribunal is affected by legal unreasonableness, in that the Tribunal unreasonably failed to adjourn the hearing or provide more time to respond to information or put on evidence – whether failure to notify the applicant that he could seek additional time to comment on or respond to information was a denial of procedural fairness – whether jurisdictional error is made out – no jurisdictional error made out – the application is dismissed.

CONSUMER LAW – Misleading and deceptive conduct – representation of “top floor” of apartment building at time of contract of sale for apartment sold ‘off-the-plan’ – subsequent additional floor added – identification of nature of representation – whether representations were misleading or deceptive – representation as to “future matters” within meaning of s.4 of the Australian Consumer Law – whether respondents had reasonable grounds for representations – whether applicant entitled to recover the deposit – application dismissed.

MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Temporary Protection visa – consideration of whether the Authority committed a jurisdictional error in its application of s 473DD of the Migration Act 1958 (Cth) – whether the Authority imported a requirement that the new information be true as opposed to ‘credible’ – whether the new information could not have been provided to the delegate for the Minister includes external limitations only – where applicant did not provide information about his claims to fear harm based on his sexuality – no jurisdictional error established – application dismissed 

MIGRATION – application for judicial review of Administrative Appeals Tribunal decision that it had no jurisdiction to review a partner visa refusal because the applicant had no standing – where the delegate was not satisfied of a de facto or spouse relationship and, before the tribunal on review, the spouse withdrew sponsorship – where visa applicant sought to reopen the case on grounds of family violence but had no standing under s.347(2)(b) of the Migration Act 1958 (Cth) – no jurisdictional error established, application is dismissed with costs.  

INTELLECTUAL PROPERTY – Costs – on 15 March 2024 the Court ordered that the applicant pay the costs of the respondents but reserved liberty to the respondents to apply for their costs to be assessed according to Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) or on some other basis – the respondents applied for costs to be assessed according to Part 1 of Schedule 2 to the GFL Rules – whether counsel’s fees are recoverable under item 11 of Part 1 of Schedule 2 to the GFL Rules or may only be recovered under item 10 as an advocacy loading – counsel’s fees are recoverable only as an advocacy loading – costs of the respondents assessed on that basis.

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – whether the Authority failed to properly consider the applicant’s claims – whether the Authority applied the wrong legal test – whether the Authority denied the applicant procedural fairness – whether the Authority unreasonably failed to exercise its discretion in s 473DC of the Migration Act 1958 (Cth) or its general powers in the conduct of review to seek new information or new submissions – no jurisdictional error – application dismissed.

MIGRATION – Partner Visa – review of Administrative Appeal Tribunal decision - whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application

MIGRATION – application for judicial review of Administrative Appeals Tribunal decision that it had no jurisdiction to review a partner visa refusal because the prescribed filing fee was not paid within a reasonable period – where applicant also complained that the Tribunal officer’s fee refusal decision was incorrect – no jurisdictional error established, application is dismissed with costs.

MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise visa – where the delegate’s refusal decision had been before the Authority on three previous occasions – extensive procedural history – whether Authority unreasonably failed to exercise its discretion under s 473DC – whether the Authority failed to consider a claim before it – whether the Authority failed to consider the risk to the applicant as a result of critical social media posts – comprehensive consideration of issues by the Authority – no jurisdictional error established – application dismissed

MIGRATION – Application for extension of time to bring application for review – where the substantive application for review was without merit and futile – where application for extension of time dismissed accordingly. 

CONSUMER LAW – Chattel mortgage of motor vehicle (“Vehicle”) – security interest registered under the Personal Property Securities Act 2009 (Cth) – application for orders sanctioning seizure of Vehicle.

INDUSTRIAL LAW – Costs – Application for costs following the Applicant filing a Notice of Discontinuance – Application for costs dismissed

MIGRATION – Protection Visa – Refusal – Review of Immigration Assessment Authority (“IAA”) decision – Criteria for considering “new information” under s 473DD of the Migration Act 1958 (Cth).

MIGRATION – Student Visas – Administrative Appeals Tribunal concluded the primary visa applicant, the first applicant, did not genuinely intend to stay temporarily in Australia – applicants applied for judicial review of Tribunal’s decision – allegations that Tribunal did not conduct a merits review and did not consider material facts including the first applicant’s compliance with her visa conditions – allegations that the first applicant was confused by the legal process – allegation that the Tribunal did not assess the applicants’ evidence – jurisdiction error not established – application for judicial review dismissed – parties to be heard on costs.

BANKRUPTCY – application for review of a registrar’s decision – where application for review of registrar’s decision made out of time - hearing de novo of creditor’s petition - where the Court does not have power to make certain orders sought by applicant – consideration of the requirements under s 52 of the Bankruptcy Act 1966 (Cth) to make a sequestration order - whether service of the Petition and Amended Petition was effected -  found jurisdictional pre-requisites met – application dismissed.

MIGRATION – application for judicial review – Protection (subclass 866) visa - where Administrative Appeals Tribunal affirmed decision of the first respondent – where certain grounds raised by applicant entirely unparticularised – where certain grounds raised by applicant do not assert any jurisdictional error – found no jurisdictional error on behalf of the Tribunal – application dismissed.

MIGRATION – application for judicial review – where Administrative Appeals Tribunal affirmed decision not to grant applicant a Student (Temporary) (Class TU) visa – where applicant concedes not enrolled in a course of study at the time of the Tribunal’s decision – oral submissions raised at hearing – where certain grounds raised by applicant were entirely misconceived – where certain grounds raised by applicant entirely unparticularised - found no jurisdictional error on behalf of the Tribunal – application dismissed.

MIGRATION – Immigration Assessment Authority – protection visa – whether there was a fraud on the Authority by the applicant’s agent – whether the agent inaccurately advised the applicant that he could not submit new information to the Authority – whether it was unreasonable for the Authority to not seek further submissions from the applicant when it was apparent that the submissions that had been lodged contained information unrelated to the applicant

MIGRATION – protection visa – application refused – whether Tribunal decision was illogical, irrational or unreasonable – whether Tribunal made inconstant findings – whether Tribunal misconstrued or misunderstood the meaning of the phrases ‘serious harm’ and ‘significant harm’ - jurisdictional error not established – application for judicial review dismissed

CONSUMER LAW – Practice and procedure – where applicant creditor applies for orders under s 100 and s 101 of the National Credit Code in relation to default by borrower of terms of a credit facility – where application has not been personally served but is said to have been served according to the term of the loan agreement between the creditor and the debtor – whether the term of the loan agreement engages r 10.28(1) of the Federal Court Rules – terms of loan agreement do not do so because r 10.28(1) of the Federal Court Rules applies to an agreement for service of an originating application or for service any other document filed in the proceeding – application therefore has not been served – matter listed for further directions.

INDUSTRIAL LAW – general protections –adverse action – whether the applicant worked unreasonable additional hours within the meaning of s 62 of the Fair Work Act 2009 (Cth) – whether the applicant worked overtime within the meaning of the Graphic Arts, Printing and Publishing Award 2020 ––whether the first respondent failed to pay the applicant overtime rates – consideration of the principles of set-off and restitution based on common mistake – consideration of the applicant’s classification under the Award – consideration of the kind of work and duties which constituted the major and substantial part of the applicant’s employment – whether adverse action taken against applicant – reverse onus not discharged by employer in relation to two of six instances of adverse action - contravention of s 340(1) of the Fair Work Act 2009 (Cth) established - found accessorial liability of the second and third respondent for the two established instances of adverse action.

MIGRATION – Protection Visa – Where there was no material which support a finding that the Applicant was wholly or substantially reliant on another family member for financial, psychological or physical support – Where the Tribunal made no error in its conclusion that the Applicant should not be granted a visa on the basis that he met the same family unit criterion – Where the Tribunal did not act unreasonably in its assessment of the material because there was an evident and intelligible justification for its finding – Where the Tribunal only had to consider the country information where relevant – Application dismissed.

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA fell into the species of error considered in cases such as ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 and DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134 – where demeanour had been important to the Delegate’s favourable credibility assessment – where the IAA departed from that assessment by reference to evidence including documentary evidence of the applicant’s appearance – where the IAA did so whilst lacking the Delegate’s advantage of seeing the applicant give his evidence in person – application succeeds

MIGRATION – Protection Visa – Where claim that it was not reasonable for the applicant to relocate within Pakistan because of his family did not clearly emerge from the materials – Application dismissed

PRACTICE AND PROCEDURE – application in a proceeding for the matter to be transferred to another registry – factors for consideration.

MIGRATION – Judicial review – application for an extension of time – Minister required by Act to notify the Applicant of the delegate’s decision – dismissal for non-appearance.

MIGRATION – application for judicial review – Safe Haven Enterprise (Subclass 790) visa – where Immigration Assessment Authority affirmed decision of first respondent that applicant is not a person in respect of whom Australia has protection obligations – where grounds raised by applicant entirely unparticularised – oral claims made at hearing – found Authority had regard to relevant information and circumstances – found no jurisdictional error on behalf of the Authority.

MIGRATION – application for judicial review – Student (Temporary) (Class TU) visa – where Administrative Appeals Tribunal affirmed decision of first respondent that the applicant was not a genuine applicant for entry and stay as a student – where certain grounds raised by the applicant do not assert any jurisdictional error – where certain grounds raised by applicant seek impermissible merits review – whether Tribunal did not have regard to relevant circumstances – found Tribunal had regard to all relevant considerations – found no jurisdictional error on behalf of Tribunal – application dismissed.

FAIR WORK APPEAL – FAILURE TO COMPLY WITH A COMPLIANCE NOTICE – application for imposition of pecuniary penalties and other relief - underpayment – pecuniary penalties ordered

INDUSTRIAL LAW – FAIR WORK – contravention of a statutory compliance notice – application for relief – non-participation of Respondent in relation to question of appropriate relief – whether an order under s.545(1) requiring compliance with a statutory compliance notice is an order in relation to an underpayment for purposes of the time limitation at s.545(5) and whether appropriate to order interest on an amount owed under s.547 – application granted, with orders that the Respondent must comply with the statutory compliance notice and pay a pecuniary penalty.

CONSUMER LAW – Application for orders under s 100 and s 101 of the National Credit Code for the delivery of a motor vehicle and entry into residential premises to repossess the motor vehicle – credit contract on the basis of which relief sought is not covered by the Code – no other relief claimed – application dismissed.

MIGRATION – Judicial review – student visa – whether Applicant was a genuine temporary entrant under clause 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) – no error in reasons of the Tribunal – application dismissed.

HUMAN RIGHTS – Application for declarations and compensation for alleged sexual harassment – where the court was unable to make findings one way or the other that any pleaded conduct was unwelcome – where onus of proof not discharged by applicant – where application dismissed accordingly.

MIGRATION – protection visa – Administrative Appeals Tribunal – citizen of Malaysia – applicant claiming harm from his wife’s family for reasons of religion – Tribunal finding he could obtain effective police protection or reasonably relocate – no jurisdictional error disclosed.