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. 

HUMAN RIGHTS – Public interest immunity claim over material produced – Disclosure of confidential information – Claim upheld.

MIGRATION – Costs – application for costs to be awarded in a fixed amount after determination of the matter following a final hearing – fixed costs order made

MIGRATION – Student (Subclass 500) visa – decision of Administrative Appeals Tribunal – where delegate determined that applicant not a genuine temporary entrant - where Tribunal found the applicant did not satisfy the primary criterion pursuant to cl 500.212 – no jurisdictional error – application dismissed

MIGRATION – Employer Nomination Permanent Appointment Visa – judicial review of a decision of the Administrative Appeals Tribunal – legal unreasonableness – irrationality or illogicality – materially correct understanding of the law – no jurisdictional error established– application dismissed

MIGRATION – Student (Subclass 572) visa – decision of Administrative Appeals Tribunal – where the applicant failed to maintain enrolment in a registered course for a period in excess of 12 months – where delegate determined that applicant breached condition 8202 and cancelled the visa pursuant to s 116 of the Migration Act 1958 (Cth) – where cancellation decision was affirmed on review – no jurisdictional error – application dismissed

MIGRATION – Skilled (Provisional) (Class VC) (Subclass 485) visa – decision of Administrative Appeals Tribunal – Tribunal affirming delegate’s decision not to grant a visa – whether the applicant’s qualifications were closely related to his nominated skilled occupation pursuant to cl 485.222 of the Migration Regulations 1994 (Cth) – whether the Tribunal gave adequate reasons for its decision –– whether the Tribunal failed to exercise its review jurisdiction – application dismissed

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal affirming decision not to grant a visa – protection claim relating to alleged debts – allegation person assisting applicant with visa application failed to include relevant information – whether there was third party fraud on the Tribunal – whether issues with the interpretation of the Tribunal proceedings gave rise to material unfairness – whether the Tribunal overlooked the applicant’s claims – adverse credibility findings – no jurisdictional error – application dismissed

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal affirming delegate’s decision not to grant a visa – whether the Tribunal mislead the applicant – whether the Tribunal conducted the review in accordance with s 425 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed

INDUSTRIAL LAW – Fair Work – Where the Applicant alleged the Respondent took adverse action against him because of a workplace complaint – Where the Applicant alleged the Respondent took adverse action against him because of his race – Where the Applicant alleged the Respondent contravened s. 323 of the Act because it failed to pay him in full at least monthly – Where the Applicant alleged that the Respondent organised action with an intent to coerce the Applicant not to exercise a workplace right in contravention of s. 343 of the Act – Where the Applicant alleged the Respondent exerted undue influence or undue pressure in contravention of s. 344 of the Act – Where the Applicant alleged the Respondent made a false or misleading representation in contravention s.345 of the Act – None of the Applicant’s claims is sustained – Application dismissed

INDUSTRIAL LAW – Fair Work – application for compensation and pecuniary penalties alleging serious contraventions of the Fair Work Act – where applicant performed work for putative employer over two distinct periods – whether applicant was employed or engaged in unpaid work experience – whether employment was continuous - where the arrangement between the parties had a migration purpose – where applicant was employed for one of the two periods – whether the respondents required the applicant to pay money to fund the costs of her employment – whether employee subjected to undue influence or pressure - where payments made by the applicant to the respondent – whether by reason of employee’s payments the employer discharged obligations under relevant Award and statutory obligations – determination of effective date of termination – where arrangement after termination intended to give impression of ongoing employment – contraventions of Fair Work Act found – accessorial liability of business owner - declarations made

HUMAN RIGHTS – Public interest immunity claim – Risk of inadvertent disclosure – Possibility of harm to the public interest - Claim upheld.

CONSUMER LAW –– Costs – Applications in a Proceeding – compliance with subpoenas – costs of the second respondent in the schedule amount to be paid – costs between the applicant and first respondent reserved.

BANKRUPTCY – application under s.55(3B) of the Bankruptcy Act 1966 for direction to Official Receiver to accept or reject a debtor’s petition in circumstances where a creditor’s petition against a group of debtors was filed – debtor subsequently giving an authority to a trustee under s.188 of the Act – whether the application under s.55(3B) of the Act is stayed by force of s.188AAA of the Act because that application is related to a creditor’s petition.

MIGRATION – Student (Temporary) (Class TU) (subclass 500) visa – review of a decision of the Administrative Appeals Tribunal – failure to consider according to law – failure to take into account considerations – misconstruing or misapplying an expression – no jurisdictional error established – application dismissed/ application allowed.

MIGRATION – Student (Temporary) (class TU) (subclass 500) visa – judicial review of a decision of the Administrative Appeals Tribunal – failure to afford procedural fairness – failure to consider circumstances relevant to genuine temporary entrant criterion – no jurisdictional error established – application dismissed

MIGRATION – Protection (Class XA) (Subclass 866) visa – judicial review of a decision of the Administrative Appeals Tribunal – failure to consider relevant material – considering irrelevant material – failure to afford procedural fairness – no jurisdictional error established – application dismissed.

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA misapplied s 473DD of the Migration Act 1958 (Cth) in the manner contended by the applicant – whether the IAA unreasonably failed to consider obtaining further information – whether the IAA failed to consider an integer of the applicant’s claim(s) – application dismissed

MIGRATION – Immigration Assessment Authority – the Authority refusing to consider new information – whether the Authority considered whether the new information was capable of being believed – whether the Authority’s determination that the new information, a UNP membership card, was not genuine, was tantamount to determining that it was not capable of being believed.

INDUSTRIAL LAW – Fair Work – Liability and penalty hearing – Failure to comply with issued Compliance Notice – First Respondent placed into liquidation in February 2024 – Calculation of penalty – Consideration of deterrence – Where the hearing proceeded undefended – Matters to be considered

MIGRATION – student (subclass 500) visa – review of the decision of the (then) Administrative Appeals Tribunal (AAT) refusing to grant the first applicant a student visa – refusal to grant the second and third applicants visas as members of the family unit – where Tribunal found first applicant was not enrolled in a course of study – where first applicant provided an offer of admission of study – where offer of admission was conditional on student visa approval from AAT – whether Tribunal unreasonably refused to adjourn hearing to allow the first applicant to obtain a confirmation of enrolment – whether Tribunal denied the applicants procedural fairness – Tribunal’s decision attended by jurisdictional error– writ of certiorari issued – writ of mandamus issued

MIGRATION – student (subclass 500) visa – visa refused – first applicant in breach of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) – decision of the (then) Administrative Appeals Tribunal to affirm delegate’s decision – judicial review – whether Tribunal denied the applicant procedural fairness – whether Tribunal failed to consider new evidence – whether Tribunal applied the wrong legal test – whether Tribunal failed to consider relevant facts – Tribunal’s decision not attended by jurisdictional error – application for judicial review 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 – significant delay – not 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 is dismissed

MIGRATION – protection (subclass 866) visa – review of decision of the (then) Refugee Review Tribunal – applicant applied for FOI request for access to documents – applicant applied for Ministerial Intervention request – extension of time – significant delay – where there is no acceptable explanation for the delay – where there is no arguable case of jurisdictional error – not satisfied it is in the interests of administration of justice to grant an extension of time – application to extend the 35-day period is dismissed

MIGRATION – Student (Class TU) (Subclass 500) visa – application for judicial review - withdrawal from course enrolments - weight to be attributed in domain of the Tribunal - comparison with previous decisions of tribunals is misconceived – application for judicial review dismissed

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal affirming delegate’s decision not to grant a visa – protection claim relating to loan sharks – adverse credibility findings – no arguable case of jurisdictional error – application dismissed

MIGRATION – Refugee Review Tribunal – protection visa – extension of time – six year delay – inadequate explanation for delay – the substantive application having no reasonable prospect of success.

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

MIGRATION – Judicial review application – Immigration Assessment Authority decision - citizens of Sri Lanka – refused grant of a Safe Haven Enterprise visa – whether the Immigration Assessment Authority proceeded on the basis of a misunderstanding of, or failure to understand, the material in country information report and relevance of the material to the  claims made – report concerning male sexual violence - whether Immigration Assessment Authority findings were illogical, irrational and lacked an intelligible justification in relation to death of an applicant’s friend and a bribe paid to cease harassment – whether material jurisdictional error

MIGRATION – application for an extension of time in which to seek review of a summary dismissal decision made by a Registrar – relevant considerations – where the substantive application had no reasonable prospects of success – application dismissed

MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal affirming a decision to refuse to grant the applicants employer nomination (permanent) visas – whether the Tribunal misunderstood or misapplied the test in Public Interest Criterion 4007(2) – whether the Tribunal constructively failed to exercise its jurisdiction – jurisdictional error established – writs issued.

MIGRATION – Administrative Appeal Tribunal - protection visa (class XA) (subclass 866) – Review of a Registrar’s decision where the matter was dismissed for non-appearance – grounds of judicial review have no merit – application dismissed with costs.

MIGRATION – application for an extension of time in which to seek review of a summary dismissal decision made by a Registrar – relevant considerations – where the substantive application had no reasonable prospects of success – application dismissed

MIGRATION  — Judicial review  — protection visa  — non appearance of applicant  — default judgment —  leave for notice of discontinuance refused —  application dismissed

PRACTICE AND PROCEDURE – adverse action – where the hearing is complete but judgment yet to be delivered – where respondent sought leave to file application in a proceeding to re-open a case – where respondent seeks to admit further affidavit evidence in response to the applicant’s amended statement of claim  – whether leave should be granted in the interests of justice – whether re-opening the case will cause embarrassment or prejudice – where interlocutory application determined on the papers – application to re-open case allowed – costs reserved

MIGRATION - Administrative Appeals Tribunal – Visitor Visa (class FA) (subclass 600) refusal – whether time taken to make decision constitutes jurisdictional error – no error made out – application dismissed.

MIGRATION – Proposed judicial review application – decision of Immigration Assessment Authority – extension of time required – where no grounds for application included in proposed judicial review application – possible grounds appearing in affidavit material – possible grounds raised at hearing – whether sufficiently arguable case of jurisdictional error.  PRACTICE AND PROCEDURE – Extension of time application for filing of proposed judicial review application – considerations – mandatory consideration as to whether in the interests of administration of justice to grant extension of time – other considerations – length of delay – where minimal delay – explanation for delay – whether explanation acceptable or plausible – whether prejudice – whether sufficiently arguable case of jurisdictional error.  EVIDENCE - whether affidavit evidence admissible – where evidence not before Delegate or the Immigration Assessment Authority – where evidence goes to impermissible merits review – where some evidence post-dates decision of Immigration Assessment Authority.  EVIDENCE – applicant not cross-examined on affidavit evidence explaining delay – evidence of explanation of delay accepted

MIGRATION – Administrative Appeals Tribunal – Student Visa (Subclass 573) cancellation under s 116(1)(b) – whether the Tribunal committed jurisdictional error by disregarding or failing to give due weight to family and medical considerations – whether the limitations of the terms, scope and policy of statute were sufficiently regarded and reasonably exercised – no jurisdictional error occurred – application dismissed.

MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – citizens of Sri Lanka – refusal of Safe Haven Enterprise visa – whether constructive failure to exercise jurisdiction – whether proper formation of required state of satisfaction – whether illogicality or lack of an intelligible justification – whether denial of procedural fairness in failing to consider a claim or substantial argument – whether material jurisdictional error

MIGRATION – application for review of a decision by the Administrative Appeals Tribunal – interpretation of IMMI 15/062 – Shine v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FedCFamC2G 132 – materiality and futility – application dismissed

MIGRATION – approval sought of nominated position under reg 5.19 of the Migration Regulations 1994 (Cth) under the Temporary Residence Transition Stream – allegation that Tribunal misunderstood reg 2.72(15)(c) of sch 2 of Migration Regulations 1994 (Cth) as to determination of the annual market salary rate in accordance with legislative instrument IMMI 18/033 – no jurisdictional error – application dismissed

MIGRATION – application for Employer Nomination (Permanent) (Class EN) visas – the Tribunal on review refused to approve the nomination and accordingly refused to grant the applicants visa – no jurisdictional error in the Tribunal’s decision not to approve the employer nomination – application dismissed

PRACTICE & PROCEDURE – where orders made requiring the respondents to enter an appearance and file a defence – where the respondents failed to comply with orders of the Court – where it was appropriate for judgment to be entered in default – orders accordingly.

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA misapplied s 473DD of the Migration Act 1958 (Cth) – application dismissed

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA failed to give proper consideration to the review material – whether the IAA failed to consider the applicant’s claims by reference to the reasonably foreseeable future and related submissions – whether the IAA made unreasonable findings or unreasonably failed to exercise its power to invite new information – application dismissed

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA erred in its application of the real chance test in respect of the reasonably foreseeable future, or did not take into account aspects of the country information in considering the reasonably foreseeable future – whether the IAA erred in its construction and application of the requirements of s 473DD of the Migration Act 1958 (Cth) – application succeeds 

INDUSTRIAL LAW – breaches of civil remedy provisions of the Fair Work Act 2009 (Cth) – declarations of breach – imposition of pecuniary penalties – relevant considerations.

INDUSTRIAL LAW – Fair Work Act 2009 (Cth) - Compliance notice – contravention.

MIGRATION – judicial review – Student (Temporary) (class TU) (subclass 500) visa – cancellation decision for non-compliance with condition 8202 – whether the Tribunal’s decision was vitiated by jurisdictional error on the ground of legal unreasonableness in considering whether to cancel the visa – whether the Tribunal misunderstood condition 8202(2)(a) – no jurisdictional error disclosed – application dismissed

MIGRATION – approval sought of nominated position under reg 5.19 of the Migration Regulations 1994 (Cth) under the Temporary Residence Transition Stream – allegation that Tribunal misunderstood reg 2.72(15)(c) of sch 2 of Migration Regulations 1994 (Cth) as to determination of the annual market salary rate in accordance with legislative instrument IMMI 18/033 – no jurisdictional error – application dismissed

MIGRATION – judicial review – allegation that the application for the protection visa was invalid by virtue of fraud of the migration agent – unrepresented litigant – explanation by court of practice and procedure as to adjournment application and requirement to adduce evidence as to alleged fraud – applicant sought adjournment and filed evidence – no relevant fraud stultified the delegate’s decision under s 65(1) of the Migration Act 1958 (Cth) – application dismissed