Judgments

Division 2 - General federal law

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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. 

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MIGRATION LAW – Where the applicant had failed to respond within the prescribed period to a letter sent to it requesting further information pursuant to s. 359 of the Act – where the only evidence before the Tribunal as to whether the applicant held any sponsorship approval showed that such approval had expired prior to the hearing of the matter before the Tribunal – where sponsorship approval was a necessary precondition to the grant of any nomination application – where no jurisdictional error established – application dismissed.

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CONSUMER LAW – application for declaration – that respondent engaged in unconscionable conduct – non-compliance with orders to file material – application dismissed pursuant to r.13.05

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 MIGRATION LAW – Whether the Authority had acted irrationally in making its findings – whether the Authority had erroneously applied the provisions of s. 473DD of the Migration Act – whether the Authority had failed to conduct a proper review of the evidence before it – no jurisdictional error established – application dismissed.

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MIGRATION – Administrative Appeals Tribunal –Student Visa – Non-Appearance Decision – Application dismissed. 

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BANKRUPTCY - application to appoint a trustee to take control of the respondent’s property pursuant to s 50 of the Bankruptcy Act 1966 (Cth) – bankruptcy notice served 

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MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed  

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MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed  

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MIGRATION – judicial review of decision of Administrative Appeals Tribunal – Tribunal affirmed decision to refuse the applicant a protection visa – whether the Tribunal failed to comply with Ministerial Direction No. 56 made under s 499 of the Migration Act 1958 (Cth)  – whether Tribunal failed to consider a risk assessment contained in the most recent DFAT Country Information Report for Pakistan – whether Tribunal failed to consider “substantial” information in making projections about the risk of harm and reasonableness of relocation to urban centres in Pakistan – where information contained in the DFAT Report centrally important to the applicant’s claims  – jurisdictional error established – writs issued  

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MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal to set aside a decision to refuse to grant the applicant a Protection (Class XA) visa and substitute a decision to refuse to grant the applicant a Protection (Class XD) visa – whether the Tribunal erred in reaching credibility and factual findings – whether a non-disclosure certificate under s 438 of the Migration Act 1958 (Cth) was validly issued – no jurisdictional error – application dismissed. 

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BANKRUPTCY – costs – application for lump sum costs order – where creditor entitled to costs - exercise of court’s discretion - lump sum costs order made   

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MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizen of Sri Lanka – alleged involvement with Liberation Tigers of Tamil Eelam – single unparticularised ground of review – where error in consideration of new information conceded – whether material jurisdictional error

EVIDENCE – relevance – whether material post-dating decision of Immigration Assessment Authority relevant and admissible 

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MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal that it had no jurisdiction in the matter – extension of time application – insignificant delay – inadequate explanation for delay provided – no prejudice to Minister if extension of time granted – whether the applicant was properly notified of the delegate’s decision as per the principles in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 – whether the decision made by the Minister’s delegate was unreasonable – whether the Tribunal improperly applied relevant legislative provisions – whether the Tribunal should have invited the applicant to attend a hearing before it as per s 425(1) of the Migration Act 1958 (Cth) – no arguable case of jurisdictional error – extension of time refused.

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FAIR WORK – application for extension of time to commence general protections court proceeding – consideration of factors relevant to exercise of Courts discretion – whether there is an acceptable explanation for the delay – whether applicant actively contested dismissal – extension granted  

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MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal finding that it had no jurisdiction – extension of time application to this Court – lengthy delay – inadequate explanation – no prejudice – whether the applicant was properly notified of the delegate’s decision as per the principles in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 – whether the delegate’s decision to refuse to grant the applicant the visa amount to jurisdictional error – alleged bias on the part of the Tribunal – whether the Tribunal failed to have regard to the applicant’s response to the invitation to comment letter – no arguable case of jurisdictional error.

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MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – reinstatement application – where no satisfactory explanation provided by the applicants for the failure to appear at the scheduled extension of time hearing – where there would be no prejudice to the Minister should the matter be reinstated – where no arguable case of jurisdictional error identified – application for reinstatement dismissed.

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MIGRATION – protection visa – reinstated application for judicial review of decision of Immigration Assessment Authority – where the Authority did not misconstrue the “exceptional circumstances” threshold in deciding not to consider new information not before the delegate – where the Departmental Secretary’s failure to provide certain material to the Authority was material – jurisdictional error established – application allowed with costs. 

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MIGRATION – Application to review decision of Registrar under Division 21.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021– application filed out of time – application dismissed. 

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CONSUMER LAW – where applicant lender applies for orders under s 100 and s 101 of the National Credit Code for the delivery of a motor vehicle that is the subject of a chattel mortgage purportedly executed by the respondent – where the respondent says it did not execute the chattel mortgage – whether applicant lender has proved that respondent executed chattel mortgage – applicant lender has not so proved – application dismissed. 

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MIGRATION – Application to review decision of Registrar – where application filed out of time – where Court not addressed by applicant’s lawyer as to why time for filing should be extended – where applicant’s lawyer relied on previous submissions made – where applicant’s lawyer had not filed submissions previously and did not produce transcript of the hearing before the Registrar – nature of Court’s powers and the balance between powers exercised by the Court and powers exercised by Registrars – where a de novo hearing before a Judge following the exercise of a power by the Registrar does not mean an applicant cannot meaningfully engage with the proceeding – where application for review a waste of time – where conduct of solicitor reaches threshold for costs order against the solicitor and potentially falls short of what is required by the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 – Application dismissed.  

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MIGRATION – where the applicant was detained at Sydney Airport - where the applicant’s visa was cancelled due to non-disclosure of a previous visa refusal – whether grounds for cancellation of a visa existed - whether the delegate gave proper genuine and realistic consideration - whether or not the ultimate decision is legally unreasonable – application dismissed  

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MIGRATION – Practice and procedure – application for review of Registrar’s orders dismissing an application for judicial review of a decision made by the second respondent affirming the decision of a delegate of the first respondent not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa on the ground that the applicant does not have reasonable prospects of succeeding on her claim for judicial review – whether applicant does not have reasonable prospects of succeeding on her grounds of application – application for review dismissed and Registrar’s orders affirmed.

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PRACTICE AND PROCEDURE – Where in a claim for relief under the Fair Work Act 2009 (Cth) after declarations of contraventions have been made the first respondent resolves to go into voluntary liquidation – where applicant applies under s 500(2) of the Corporations Act 2001 (Cth) for leave to proceed against the first respondent for the purpose of applying for an order that the first respondent pay pecuniary penalties – whether Federal Circuit and Family Court of Australia (Division 2) has jurisdiction under s 134 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) over the matter that arises out of the applicant’s seeking to apply for leave to proceed under s 500(2) of the Corporations Act 2001 (Cth) - Federal Circuit and Family Court of Australia (Division 2) has jurisdiction – whether leave to proceed should be granted – leave to proceed refused. INDUSTRIAL LAW – Assessment of pecuniary penalties against second respondent for contraventions of s 44 of the Fair Work Act 2009 (Cth) – payment of pecuniary penalties ordered. 

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MIGRATION – Application to review decision of the Administrative Appeals Tribunal (‘Tribunal’) – where visa cancelled because applicant was not enrolled in a registered course – whether Tribunal exercised its discretion to cancel the visa lawfully – HELD no error by the Tribunal – application dismissed.  

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MIGRATION – Judicial review application – decision of Immigration Assessment Authority affirming delegate’s decision not to grant Safe Haven Enterprise Visa – citizen of Pakistan – unparticularised grounds of review – whether possible basis for jurisdictional error otherwise – whether material jurisdictional error.  

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INDUSTRIAL LAW - Where respondent underpaid his employee – where applicant served a Compliance Notice upon the respondent – where the respondent co-operated with the applicant during the course of the proceeding and remedied all underpayments – where a Statement of Agreed Facts was filed – declaration made accordingly.

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MIGRATION – costs application – where applicant wholly unsuccessful – costs incurred by respondent larger than standard costs –costs granted 

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MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a temporary graduate visa – whether the Tribunal made errors in determining when the applicant completed her relevant course of study – whether the Tribunal failed to correctly exercise s 359(2) of the Migration Act 1958 (Cth) – whether the Tribunal erred by failing to exercise its discretion in s 363(1)(b) of the Migration Act to adjourn the review – allegations of dishonest behaviour by migration agent – no jurisdictional error – application dismissed. 

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FAIR WORK – COSTS – Where the applicant filed an interlocutory application for summary judgement – where the hearing of the application was adjourned for a second time on the same basis as for the adjournment of the hearing on the first occasion, namely by reason of the unpreparedness of the respondents to present their arguments at the interlocutory hearing – where the failure of the respondents to again properly prepare for the hearing warranted an indemnity costs order.  

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MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal to affirm a decision to refuse the applicant a protection visa – whether the Tribunal erred by not believing the applicant’s evidence – no jurisdictional error – application dismissed.    

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INDUSTRIAL LAW – whether second applicant proved he has not been paid entitlements under award – second applicant proved he had not been paid certain entitlements – declaration and orders made.  

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INTELLECTUAL PROPERTY – COPYRIGHT – Applicant complaint of copyright infringement in template quotation document for residential lift – admitted infringement by first respondent company and fourth and fifth respondent directors by reproducing and distributing quotation documents between December 2019 and April 2020 – by earlier order by consent hearing limited to issues of liability and non-pecuniary relief, quantum of pecuniary relief to be addressed separately – whether second and third respondent companies also infringed copyright – held no infringement of copyright by second or third respondents – consideration of parties submissions whether additional damages pursuant to s115(4) Copyright Act 1968 (Cth) are appropriate – factors considered – additional damages not appropriate 

BREACH OF CONFIDENCE - Applicant alleges breach of confidential information – whether applicant’s claim for breach of confidence was sufficiently pleaded – whether respondents obtained applicant’s copyright material and claimed confidential information from sixth respondent ex employee of applicant, now employee of first respondent – whether material was in fact confidential – claims against ex employee not made out – held no breach of confidential information 

AUSTRALIAN CONSUMER LAW (ACL) – Both parties allege against the other contraventions of the ACL arising from sales materials for their respective residential lift products – allegations of issues of non compliance with voluntary industry standards – parties agree the Court is not to assume itself the role of an industry regulator – parties each seek declaratory relief and damages – some conflict of evidence of parties’ experts – Court not persuaded that declarations appropriate in any event – neither party establishes misleading or deceptive conduct by the other in contravention of the ACL. 

PRACTICE AND PROCEDURE – Applicant’s application in a proceeding pursuant to ss 138 and 135 of Evidence Act 1995 (Cth) to exclude disputed documents allegedly improperly obtained by one of respondents’ solicitors from applicant’s website, and strike from the record transcript certain oral evidence – held documents not improperly obtained, are directly relevant to issues before the Court, and not precluded by s 138 of the Evidence Act – alternatively, pursuant to s 135(a) of the Evidence Act held that probative value of documents outweighs any prejudice – held that cross examination of witness not unfair – discretion of the Court exercised to admit documents – interlocutory application dismissed

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BANKRUPTCY – Annulment - sequestration of deceased estate- order should not have been made- deceased estate solvent – interested party not heard- duty of full and frank disclosure- accuracy of affidavit verifying statement of affairs -costs, remuneration and expenses of trustee 

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MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal to affirm a decision not to grant the applicant a protection visa – where the Tribunal placed no weight on a document from Nepal provided by the applicant in part because document fraud exists in Nepal – whether the Tribunal acted unreasonably by failing to consider the seriousness of an allegation of fraud against the applicant – no jurisdictional error – application dismissed.

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MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a student visa – where an earlier purported decision of the Tribunal was quashed and a writ of mandamus issued – whether the Tribunal erred by being constituted by the same member following the remittal – whether the Tribunal failed to consider the applicant’s submission – whether the Tribunal decision was affected by actual or apprehended bias – where the applicant seeks review of the factual merits of the Tribunal decision and asks the Court to take into account developments that occurred after the Tribunal decision was made – no jurisdictional error – application dismissed. 

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MIGRATION – application for judicial review of a decision made by a delegate of the Minister to refuse to waive condition 8503 – whether the delegate erred in assessing whether there were compelling circumstances – where the applicants disagree with the factual findings and conclusions of the delegate – no jurisdictional error – application dismissed. 

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CONSUMER LAW – Application for orders under s 100 and s 101 of the National Credit Code for the delivery of a motor vehicle – whether evidence supports making order for entry into any premises – order made requiring respondent to deliver vehicle with liberty to apply for an order under s 100 of the Code if the respondent does not comply with the order for delivery. 

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INDUSTRIAL LAW – Small claims – application to set aside orders made by Registrar for the payment of amounts said to be payable under an award – order made in the absence of the respondent – application to set aside Registrar’s orders treated as an application for review – on hearing de novo accepted by the parties that respondent owes applicant $460 – order made setting aside Registrar’s order with liberty to apply if the $460 is not paid by 21 June 2024. 

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INDUSTRIAL LAW – FAIR WORK –  casual conversion under the Fair Work Act 2009 (Cth) –  where the respondent claims it was not obliged to make an offer of conversion under section 66B – consideration of whether the applicant worked a ‘regular pattern of hours’ under section 66F – finding that the applicant did not qualify for casual conversion under section 66F – finding that the applicant did not work a ‘regular pattern of hours’ under section 66F  – finding that the respondent was not obliged to make an offer of conversion – application dismissed. 

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MIGRATION – where applicant applies for an injunction restraining the Minister from removing the applicant from Australia up to a date that is eight days after the date on which the Administrative Appeals Tribunal determines an application for review the applicant made of a decision a delegate of the Minister made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) not to revoke a decision to cancel a bridging visa the applicant held – where the applicant applies for no other relief – whether question whether the injunction is to be granted is to be determined by reference to the power to grant injunctions conferred by s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) or whether it is to be determined by reference to the principles that govern the granting of an injunction against an officer of the Commonwealth under s 75(v) of the Constitution – question is to be determined by reference to the principles that govern the grant of an injunction under s 75(v) of the Constitution – principle by reference to which an injunction may be granted under s 75(v) of the Constitution is that it is necessary to ensure that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them – whether in seeking to remove the applicant from Australia the Minister or any of his officers have exceeded or will exceed power or have otherwise acted or will otherwise act unlawfully – application dismissed.

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MIGRATION – Whether Immigration Assessment Authority failed to consider certain claims

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MIGRATION LAW – JUDICIAL REVIEW – Decision of the Minister – Internal review of cancellation of visa – Deliberate provision of false information – Whether delegate failed to consider component integers of primary argument of applicant – Whether the reason of ‘transliteration error’ was irrational and illogical 

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MIGRATION – protection visa – application for review of decision of the Administrative Appeals Tribunal – where applicant contended that the Tribunal erred in its application and interpretation of “refugee” and otherwise invited the Court to engage in impermissible merits review – no error of jurisdiction established or identified – application dismissed with costs.   

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MIGRATION – Protection Visa – Where the Applicant is a gay man who alleged he had a well-founded fear of persecution if he returned to Malaysia – Where the Tribunal found that the Applicant could internally relocate within Malaysia – Whether the Tribunal failed to afford the Applicant a hearing in accordance with its statutory obligations because it did not identify the critical issue of internal relocation so that the Applicant could give evidence and present arguments as to that issue – Ground not made out – Whether the Tribunal failed to understand and evaluate important evidence that because the Applicant was a gay man he could not live in Malaysia without hiding his sexuality or modifying his behaviour – Ground not made out  – Application dismissed 

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MIGRATION – Where separate protection visa application made for child applicant with claims based on actions of parents – whether Tribunal conflated application of child with application of mother leading to apprehension of bias or constructive failure to undertaken the review 

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MIGRATION – Application for medical treatment visa found to be invalid – where applicant paid application fee which was not reimbursed despite rejection of application on basis of invalidity – where applicant claimed to not be able to access ImmiAccount 

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MIGRATION - Review of Registrar decision made out of
time – where applicant failed to seek extension of time, elect for oral hearing or make written submissions – review application dismissed as incompetent  

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MIGRATION – Administrative Appeals Tribunal – Student Visa (Subclass 573)  - jurisdictional error and materiality – no merit – application dismissed   

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HUMAN RIGHTS – COSTS – Where applicant wholly unsuccessful in establishing claims – whether usual rule that costs follow the event dislodged by respondents’ alleged misconduct – whether unrepresented litigant should pay costs on an indemnity basis for failure to accept Calderbank offer

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CONSUMER LAW – application for orders under s 123 of the Personal Property Securities Act 2009 (Cth) to enter property to seize vehicle