Judgments

MIGRATION – non-appearance by or on behalf of the applicants where a solicitor remains on the record for the applicants – limited engagement with the proceedings more generally – prudent course where instructions are withdrawn but no notice of this has been filed by or on behalf of an applicant – potential exposure to costs if this does not occur – application dismissed for non-appearance

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 misconstrued the applicant’s risk and fear of significant harm – whether the Tribunal erroneously and narrowly construed the existence of the risk to life and fear of significant harm – whether the Tribunal had no jurisdiction to make the decision because its ‘reasonable satisfaction’ was not arrived at in accordance with the provisions of the Migration Act 1958 (Cth) – whether the Tribunal failed to investigate the applicant’s claims – whether the Tribunal failed to comply with the mandatory requirement in s 424A of the Migration Act – no jurisdictional error established – application dismissed. 

HUMAN RIGHTS – Unlawful discrimination – alleged discrimination on basis of race, sex and disability – alleged sexual harassment – employed medical practitioner – anaesthetist training programme – application for an extension of time to bring application – whether prohibition on making of application where prior application made to and determined by State Tribunal
PRACTICE AND PROCEDURE – Extension of time in which to file application – factors for consideration – length of delay – where delay of over two years – reason for delay – prejudice – whether sufficient arguable merit in proposed application – whether prohibition on making of application where prior application made to and determined by State Tribunal
PRACTICE AND PROCEDURE – whether prohibition on making of application where prior application made to and determined by State Tribunal 

MIGRATION – student (subclass 573) visa – visa cancelled – applicant engaged in work over the amount permitted by condition 8105 of the Migration Regulations 1994 (Cth) – decision of the former Administrative Appeals Tribunal (Tribunal) to affirm the delegate’s decision – judicial review – whether the Tribunal failed to invite the applicant to provide evidence – whether the Tribunal’s reasons are inconsistent – whether the Tribunal did not consider relevant material – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed

MIGRATION – student visa – decision of the Administrative Appeals Tribunal – consideration of the genuine temporary entrant criterion – allegations of migration fraud – whether the Tribunal put the applicant on notice of the dispositive issue before it – no jurisdictional error established – application dismissed 

MIGRATION – Student (Temporary) (Class TU) visa – applicant seeks extension of time to seek judicial review – extension of time granted - The Court has no jurisdiction to review the delegate’s decision – alleged failure of the Tribunal to afford the applicant a fair hearing – proposed grounds of judicial review have no merit – application dismissed 

MIGRATION – reinstatement application – whether reasonable explanation for non-appearance – whether prejudice to the Minister – whether arguable case – application dismissed as no arguable case on judicial review 

 MIGRATION – Partner (Temporary) (Class UK) (subclass 820) visa – where evidence has not been provided to establish family violence – whether the Tribunal ignored relevant consideration – whether the Tribunal failed to put adverse information to the applicant – whether the Tribunal asked inappropriate questions – whether the Tribunal erred in rejecting a report from a medical practitioner – proposed grounds of judicial review have no merit – application dismissed 

MIGRATION - Employer Nomination – Application for an extension of time – Whether in the interests of the administration of justice to extend time – Whether reasonable explanation of delay - Application interconnected with judicial review application of employee - Employer Nominated (Permanent) (Class EN) visas – Non-existence of an approved employer nomination - Whether the terms and conditions of the employed position were no less favourable than conditions provided to an Australian citizen or permanent resident – Whether Tribunal considered irrelevant material in breach of the statutory test - Applications heard consecutively – Application for an extension of time granted – Application for judicial review dismissed. 

MIGRATION – judicial review – protection visa – when adverse credibility findings can give rise to jurisdictional error – alleged Tribunal incorrectly understood the evidence or took into account irrelevant finding about the nature of an organisation and/or was legally unreasonable – failure to consider corroborative evidence alleged – no jurisdictional error disclosed – application dismissed 

MIGRATION – protection (subclass 866) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – no appearance by the applicant at the Tribunal hearing – extension of time – substantial delay – merits of the application weigh in the applicant’s favour – satisfied that it is in the interests of the administration of justice to extend time – application for an order extending the 35-day period within which an application under s 477(1) of the Migration Act 1958 (Cth) may be made be extended

MIGRATION - Judicial review of decision affirming decision not to grant a Protection (Class XA) (subclass 866) visa – dismissal for non-appearance. 

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal misapplied ss 36(2)(a) and (aa) – whether the Tribunal made unreasonable findings – irrationality – no jurisdictional error established – application dismissed 

MIGRATION – judicial review – protection visa – applicant failed to appear at a scheduled in-person hearing before the Tribunal – Tribunal exercised discretion under s 426A(1A)(a) of the Migration Act 1958 (Cth) to make a decision on the review without taking any further action to allow or enable the applicant to appear before it – no jurisdictional error disclosed on the basis the Tribunal acted reasonably in exercising the discretionary power in s 426A(1A) – application dismissed 

MIGRATION – judicial review – protection visa – whether the Tribunal acted unreasonably in refusing to grant the applicant further time in which to provide a report from a psychologist – Tribunal sought explanation as to relevance of further report – Tribunal considered response as to relevance and provided an evident and intelligible justification which was reasonable for refusing the applicant further time to provide the medical report – application dismissed 

MIGRATION – Protection (Class XA) (Subclass 866) visa – application for extension of time to seek judicial review – whether proper explanation of delay - consideration of the interest of the administration of justice – application dismissed. 

MIGRATION - Employer Nomination (Permanent) (Class EN) (subclass 186) visas – Application for judicial review – Whether decision to refuse to grant the visas contained a jurisdictional error - Whether Tribunal obliged to reconsider a decision – Application interconnected with employer application for an extension of time – Applications heard concurrently – Application for judicial review dismissed. 

MIGRATION – protection (class XA) (subclass 866) visa – visa refused – decision of the (then) Administrative Appeals Tribunal to affirm delegate’s decision – where applicant alleges jurisdictional error – where applicant’s grounds of review lack merit – Tribunal’s decision not attended by jurisdictional error – application for review of Tribunal’s decision dismissed

MIGRATION – application for review of a decision by the Administrative Appeals Tribunal – whether the applicant made a “non-judicially determined claim of family violence” – whether a statutory declaration provided by a (largely) retired social worker, met the requirements of IMMI 12/116 – application dismissed

MIGRATION – partner (class BS) (subclass 801) visa – review of two decisions of delegates of the (then) Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs – first decision concerned cancellation of the applicant’s visa pursuant to s 128 of the Migration Act 1958 (Cth) (Act) – second decision concerned non-revocation of the first decision pursuant to s 131 of the Act – judicial review – whether the delegates adopted an unintelligible interpretation of the Convention on the Rights of the Child (CRC) – whether the delegates incorrectly applied the best interests of the child principle in the CRC – whether delegate correctly identified whether cancellation of the applicant’s visa was in the best interests of the children – delegates’ reasoning was illogical or irrational – delegates’ reasoning attended by jurisdictional error – writ of certiorari issued – writ of mandamus issued

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

MIGRATION – judicial review – protection visa – alleged failure to give “proper, genuine and realistic consideration” to a letter purportedly provided by the Assistant Office Secretary of the BNP – no jurisdictional error – application dismissed

INTELLECTUAL PROPERTY – Practice and procedure – application for access to unredacted versions of redacted documents that had been inadvertently included in a list of documents filed pursuant to discovery order – whether documents relevant to issues arising on the pleadings – not relevant because the unredacted portion of the documents is sought to investigate matters that are not currently in issue between the parties.  

INTELLECTUAL PROPERTY – Practice and procedure - discovery - pursuant to discovery order respondents disclosed documents some of which were in native format (Native Format Documents) by converting them into PDF format and producing to the applicant the PDF format of the Native Format Documents – whether the respondent ought to produce the Native Format Documents to the applicants in native format – respondents ordered to do so INTELLECTUAL PROPERTY – Practice and procedure – application for leave to file an amended statement of claim – whether proposed amendments plead material facts -application dismissed.

BANKRUPTCY – Costs assessment – Where the Bankruptcy Notice set aside – Where the Creditor’s Petition was dismissed - Where costs ordered are costs that are reasonably payable on a party-party basis – Appropriate discount applied   

MIGRATION – Judicial Review – Administrative Appeals Tribunal – protection visa – India - unreasonableness - illogicality - irrationality – whether conclusions as to country information open to the Tribunal - real and meaningful hearing - failure to consider a claim – application dismissed

MIGRATION – Judicial review – Administrative Appeals Tribunal – Protection visa – China – Tribunal’s assessment and weight of evidence and country information – real and meaningful hearing – impermissible merits review – application dismissed

BANKRUPTCY – application by appointed trustee for delivery of vacant possession of property, removal of personal property and sale of property – where former bankrupt since discharged from bankruptcy at law –consideration of power to make orders under s.30 of the Bankruptcy Act 1996 (Cth) in furtherance of the administration of a bankrupt estate – orders made with costs. 

INDUSTRIAL LAW – alleged contravention of general protections – termination of employment – alleged underpayments

PRACTICE AND PROCEDURE – discovery – requirements for declaration concerning discovery – discovery exception not the rule

INDUSTRIAL LAW – application for civil penalty –admitted contraventions –failure to abide by compliance notice and provide pay slips under Fair Work Act 2009 (Cth) – penalty hearing  – appropriate penalty.

MIGRATION - application for judicial review of a decision by the then Administrative Appeals Tribunal affirming a decision not to grant a Student (Temporary) (Class TU) (Subclass 500) visa – whether there was a denial of natural justice, failure to consider relevant information and consideration of irrelevant considerations and/or failure to give genuine, proper and realistic consideration to merits – where decision of the Tribunal was based upon an admission of the Applicant which was dispositive – no error of jurisdiction established – application dismissed.

INDUSTRIAL LAW – application for civil penalty –contraventions of Fair Work Act 2009 (Cth) – failure to abide by compliance notice and breach of s.323 – penalty hearing – appropriate penalty

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

MIGRATION – Judicial Review – student visa refusal – whether the applicant consented to the Tribunal determining the matter without a hearing – whether Tribunal failed to provide opportunity to give evidence and present arguments – whether Tribunal failed to make an obvious inquiry – no jurisdictional error established – application dismissed

MIGRATION – Judicial review – Partner visa – whether Tribunal properly reached a state of satisfaction that compelling reasons did not exist to waive the application of certain Schedule 3 criteria – whether Tribunal failed to give proper, genuine and realistic consideration to submissions and evidence – whether Tribunal failed to actively and intellectually engage with arguments– jurisdictional error established – application allowed

MIGRATION – protection visa – judicial review of a decision of the Immigration Assessment Authority – where second applicant feared harm based on his failure to complete military service in Iran – whether Authority considered claim based on a correct and complete understanding of country information – where second applicant feared harm based on his interest in Freemasons in Australia – where second applicant identified limits in his ability to produce evidence directed at this claim due to the secrecy of the organisation – whether Authority assessed claim based on correct appreciation of the limits that attached to production of material – no jurisdictional error – application dismissed with costs

MIGRATION – Judicial review – whether Tribunal erred in finding it did not have jurisdiction – whether delegate’s notification letter valid – no jurisdictional error established – application dismissed.

MIGRATION – protection visa – application for injunction to restrain the Minister from removing the applicant from Australia – delay – whether applicant afforded meaningful opportunity to appear – impact of mental health issues on ability to appear – serious issue to be tried established – balance of convenience – interlocutory injunction granted

CONSUMER LAW – applicant and first respondent entered into a chattel mortgage agreement in relation to a motor vehicle – fraudulent transaction – unknown party took possession of the vehicle – interim orders granted for applicant to seize the vehicle pursuant to s 123 of the Personal Property Securities Act 2009 (Cth) (PPS Act) – applicant at liberty to deal with the vehicle pursuant to s 128 of the PPS Act

PRACTICE AND PROCEDURE – where the applicant failed to appear at a listing before the Court relating to his judicial review application – application dismissed 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 – decision of the Administrative Appeals Tribunal – whether the applicant was enrolled in a registered course of study and could satisfy cl 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) – finding by the Tribunal that the applicant was not enrolled in a registered course of study –no jurisdictional error – application dismissed with costs

BANKRUPTCY – Application to appoint controlling trustee prior to sequestration order being made – no act of bankruptcy established

BANKRUPTCY – Application to remove respondent as the trustee of bankrupt estate – applicant sought to replace the trustee with another trustee – relevant considerations

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal failed to give sufficient weight to the applicant’s circumstances – whether the Tribunal engaged in a process of reasoning that was illogical or irrational – no jurisdictional error – application dismissed.

MIGRATION – Protection (Class XA) (subclass 866) visa – judicial review of a decision of the Administrative Appeals Tribunal – error of fact – jurisdictional fact – illogicality or irrationality – procedural fairness – no jurisdictional error established – application dismissed.

MIGRATION – application for review of decision of registrar – where registrar summarily dismissed application for judicial review of decision of Administrative Appeals Tribunal – whether judicial review application has reasonable prospects of success – application for review of registrar’s decision lodged 15 days late – extension of time refused – costs ordered

BANKRUTPCY – application pursuant to s 139ZS(1) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) to set aside a notice issued pursuant to s 139ZQ(1) of the Bankruptcy Act and applications pursuant to s 120(1) and s 121(1) of the Bankruptcy Act that the transfer of a 40% interest in a property is void as against the trustee in bankruptcy – whether the 40% interest was transferred for a consideration less than its market value – the 40% interest transferred for a consideration that exceeded market value – whether at the time the 40% interest was transferred the transferor was insolvent or was about to become insolvent – whether the transferor’s main purpose for transferring his 40% interest was to prevent the transferred property from becoming divisible among the transferor’s creditors to hinder or delay the process of making property available for division among the transferor's creditors – whether assuming s 121(1) of the Bankruptcy Act applied to the transfer of the 40% interest the transferee established the matters provided for by ss 121(4) – 129ZQ notice set aside and claims under s 120(1) and s 121(1) of the Bankruptcy Act dismissed.

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 failed to give sufficient weight to the applicant’s circumstances – whether the Tribunal engaged in a process of reasoning that was illogical or irrational – no jurisdictional error established – application dismissed.

MIGRATION – Temporary Protection visa – decision of the then Immigration Assessment Authority – whether the IAA erred in the manner specified in CLS15 v Federal Circuit Court of Australia [2017] FCA 577 – jurisdictional error established – writs issued.

MIGRATION – application for judicial review – decision of the Immigration Assessment Authority – safe haven enterprise (subclass 790) visa – where the applicant claims that the Authority failed to exercise its discretion in getting or to get new information under section 473DC of the Migration Act 1958 (Cth) in respect of the applicant’s political involvements – no jurisdictional error established – application dismissed with costs.

MIGRATION – Judicial review – absence of approved nomination – futility – no jurisdictional error established – application dismissed.