Judgments

INDUSTRIAL LAW – penalties – Court having found 9 contraventions by a corporation – disregard of Award and legislation – misunderstanding, ignorance and lack of attention to establishment of the employment relationship - director involved in all contraventions. 

MIGRATION – medical treatment visa – whether the Tribunal properly considered the evidence before it – whether the Tribunal considered the impact of the applicant’s student visa application on his need for ongoing medical treatment in Australia – finding that the Tribunal constructively failed to perform its function on review – jurisdictional error established – application for review allowed   

INDUSTRIAL LAW - COSTS – Failure by applicant to accept a “walk away” offer to settle made by the respondents some two months prior to trial – where applicant gave notice to the Court on the day of, but prior to the commencement of the hearing, that it intended to file a Notice of Discontinuance – whether the applicant ought to have accepted the offer when made – order that the applicant pay the costs of the respondents, on a party/party basis as agreed, or failing agreement, to be assessed, from the required date for acceptance of offer. 

MIGRATION – student visa – application in a proceeding to set aside order of the court dismissing and application for judicial review in the absence of the applicants – finding that no reasonable or acceptable excuse for the applicants’ non-appearance at the hearing – finding that the prospect of success on the application for review is poor – application in a proceeding dismissed   

PRACTICE AND PROCEDURE – whether party should be required to file evidence addressing searches undertaken in response to a notice to produce – where documents requested in notice to produce do not relate to any ground currently before the Court – where the evidence does not suggest that compliance with the notice to produce is insufficient

INTELLECTUAL PROPERTY – Practice and procedure – application for summary dismissal or in the alternative for an order that the statement of claim be struck out – whether applicant has no reasonable prospects of proving it is the owner of the copyright that is the subject of the proceeding – whether it would be an abuse of process to permit the applicant to maintain the proceeding in circumstances where it is unable to provide to the respondent documents referred to in the statement of claim – whether statement of claim fails to plead material facts – statement of claim struck out with leave to replead.

MIGRATION – where an interlocutory injunction was previously granted restraining the applicant’s removal from Australia – whether the injunction should be extended – prima facie case – balance of convenience – orders made extending the injunction until after determination of the substantive application after a hearing listed for the following week 

MIGRATION - protection visa - decision of the Administrative Appeals Tribunal - application for extension of time - significant delay - unsatisfactory explanation for delay - no prejudice - no arguable case of jurisdictional error - application dismissed with costs

FAIR WORK – claim for entitlements – previous proceedings – whether Deed from previous proceedings is a bar to the present application – application dismissed

MIGRATION – Whether Immigration Assessment Authority failed to consider necessary factors pertaining to data breach – whether legislative instrument applicable to applicant – additional issue raised by Minister whether Authority erred by not exercising power to invite comment from applicant

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal misconstrued the requirements of Public Interest Criterion 4020 when determining that there was a reasonable suspicion that the applicant had provided or had caused to be provided a bogus document – no jurisdictional error – application dismissed.   

BANKRUPTCY – application by trustee in bankruptcy for an interlocutory injunction compelling person holding a registered mortgage over property vested in the trustee to discharge the mortgage on the completion of sale of the property on terms that the proceeds of sale including the amount that is purportedly secured by the mortgage be paid into a controlled account pending the final hearing of the trustee’s claim that the mortgage is void under s 120 and s 121 of the Bankruptcy Act 1966 (Cth) – whether there is a serious question to be tried that the mortgagee did not advance the money that is purportedly secured by the mortgage – whether there is a serious question to be tried that the debt purportedly secured by the mortgage is statute barred – whether trustee will suffer loss if injunction not granted – application for an injunction dismissed.

MIGRATION – where an interlocutory injunction was previously granted restraining the applicant’s removal from Australia – whether the injunction should be extended – prima facie case – balance of convenience – orders made extending the injunction until after determination of the substantive application after a hearing listed for the following week.

MIGRATION – Protection visa – decision of the Immigration Assessment Authority – matter listed for a directions hearing – no appearance by or on behalf of the applicant – application dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or for the applicant – application dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

MIGRATION – Whether Immigration assessment Authority failed to properly consider and assess applicant’s claims – merits review sought – additional issue raised by Minister whether Authority erred in assessment of whether to consider new information

MIGRATION - application for judicial review of a decision by the Administrative Appeals Tribunal affirming refusal of a student visa – whether the Tribunal failed to consider the applicant’s evidence and/or relevant considerations – whether the Tribunal’s reasoning was open to it on the material before it – whether the Tribunal’s misunderstanding of the applicant’s evidence regarding her community ties resulted in jurisdictional error – application succeeds

MIGRATION – Immigration Assessment Authority decision – refusal of Safe Haven Enterprise visa – application to extend time to file safe judicial review application - adjournment and extension of time applications. PRACTICE AND PROCEDURE – adjournment - application for adjournment of extension of time application to seek legal representation or advice – where matter on foot for more than three years – where significant delay by Court in listing extension of time application - where applicant self- represented and requires interpreter – effect of delay in listing – adjournment granted – further application for adjournment at adjourned hearing to seek legal representation – adjournment not granted. PRACTICE AND PROCEDURE - application for extension of time for judicial review of decision of Immigration Assessment Authority to refuse safe haven enterprise visa – whether in the interests of the administration of justice – factors for consideration - length of delay – explanation for delay – whether prejudice – whether sufficiently arguable merit in proposed judicial review application.

MIGRATION – protection visa – whether the Tribunal published reasons for decision that included the applicant’s actual name – whether the Tribunal failed to allow the applicant to make a complementary protection claim or failed to consider such a claim.  

MIGRATION – Skilled (Provisional) (Class VC) subclass 485 (Temporary Graduate) visa – Refusal – Review of Administrative Appeals Tribunal (“Tribunal”) decision.  ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason of lack of procedural fairness.

FAIR WORK – alleged breach of general protection provisions – alleged adverse action consisting of dismissal – whether the Applicant’s dismissal was because she made complaints about her hours and asserted her workplace rights – alleged coercion – whether the Applicant worked overtime within the meaning of the Health Professionals and Support Services Award 2020  – failure to make and keep employee records – failure to provide employee records upon request – failure to display the applicable award and the National Employment Standards – failure to provide the applicant with a Fair Work Information Statement - company director involved in the contraventions. 

BANKRUPTCY – applications under s 120(1) and s 121(1) of the Bankruptcy Act 1966 (Cth) that two properties were transferred by bankrupt for prices that were less than their respective market values – whether in the case of one of the properties the balance of the purchase price that was not paid on settlement was later paid by the transferee – not paid – whether in those circumstances trustee in bankruptcy’s right to commence proceeding to recover the balance of purchase price from transferee is statute barred – action barred – whether in the case of the second of the properties whether $100,000 of the purchase price was paid by a creditor of the bankruptcy discharging a debt of $100,000 the bankrupt owed the creditor in return for the bankrupt agreeing to discharge the transferee of her obligation to pay on settlement $100,000 of the purchase price – the $100,000 was paid in this way – whether the transferee gave $100,000 consideration – transferee gave consideration – applications dismissed. 

MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed  

MIGRATION LAW – Application for protection visa – review of the decision of the Administrative Appeals Tribunal - where decision was made in the absence of the applicant who failed to appear before Tribunal to give evidence and make submissions – where grounds of review were un-particularised – where the Court was unable to carry out a proper hearing because of the lack of particularity in the grounds of review – where an adjournment was inappropriate – no jurisdictional error established in any event – application for review dismissed.

INDUSTRIAL LAW – FAIR WORK – application for unpaid statutory and contractual entitlements – alleged unpaid wages, unpaid annual leave, home office allowance and bonus – whether applicant is employee or independent contractor – effect of admissions made by respondent – determining terms of contract to date of termination – determining hourly rate for purposes of determining entitlements – applicant partially successful – declarations and orders made

MIGRATION – Business skills visa – refusal – review of Administrative Appeals Tribunal (“Tribunal”) decision. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision was affected by jurisdictional error because it applied the wrong test or misapplied the correct test.

MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Secretary failed to comply with s 473CB of Migration Act 1958 (Cth) – whether Authority misapplied s 473DD of the Migration Act – whether Authority failed to consider a claim that clearly emerged on the materials – whether Authority failed to consider an integer of applicant’s claim – whether Authority made findings or proceeded in a manner that was unreasonable – whether Authority misconstrued and therefore failed to consider a claim raised by the applicant – whether the Authority erred in its assessment of whether applicant faced a real chance of harm in the reasonably foreseeable future – jurisdictional error established – writs issued.

PRACTICE AND PROCEDURE – Application for extension of time. MIGRATION – Review of Administrative Appeals Tribunal (“Tribunal”) decision – protection visa – persecution – refusal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal denied the applicants a postponement of its hearing – did not determine the matter according to law and denied the applicants a hearing.

MIGRATION – application for extension of time for review of decision made by Registrar to summarily dismiss judicial review application – no adequate explanation for delay – no prejudice to respondents – no realistic prospect of success – extension of time refused with costs

FAIR WORK - Assessment of civil pecuniary penalty for contravention of s 716(5) of the Fair Work Act – contraventions in context of COVID-19 – no contention of need for specific deterrence – where Fair Work Ombudsman did not provide updated information of corrective action taken before penalty hearing

MIGRATION – application for review of Registrar’s decision – application for review filed 5 days out of time – hearing de novo of first respondent’s application for summary dismissal – where applicant applied for judicial review of decision of Administrative Appeals Tribunal – where applicant did not attend hearing before Tribunal – where applicant did not apply for reinstatement before Tribunal – found that grounds for judicial review have no reasonable prospects of success

INTELLECTUAL PROPERTY – Practice and procedure – orders for summary judgment and judgment by default had been made and entered subject to further submissions on the assessment of compensation, interest, and costs – orders made for compensation, interest, and costs.

HUMAN RIGHTS – Alleged racial discrimination – alleged sex discrimination – whether mention of Viagra constitutes conduct of a sexual nature.  COSTS – Whether costs application foreclosed by reason of proceedings having been brought in human rights jurisdiction – public interest litigation 

MIGRATION – application for judicial review – Student (Subclass 573) visa – where Administrative Appeals Tribunal affirmed decision of first respondent to cancel applicant’s visa as applicant failed to maintain enrolment in a course of study – where certain grounds raised by applicant entirely unparticularised – found Tribunal had regard to all relevant circumstances – found Tribunal considered all reasons asserted by applicant for period of non-enrolment – found no jurisdictional error on behalf of the Administrative Appeals Tribunal

FAIR WORK - Assessment of civil pecuniary penalty for contravention of s 716(5) of the Fair Work Act – contraventions in context of COVID-19 – no contention of need for specific deterrence – where Fair Work Ombudsman did not provide updated information of corrective action taken before penalty hearing

MIGRATION – reinstatement application in respect of an application for an extension of time in which to seek judicial review of a decision by the Administrative Appeals Tribunal – explanation for non-attendance – prejudice – merits of the proposed application – application dismissed

BANKRUPTCY - application seeking review of a decision of a Registrar dismissing an application to set aside a Bankruptcy Notice – whether the applicants have a counter-claim, set-off or cross demand within the meaning of s 40(1)(g) of the Bankruptcy Act 1966 (Cth) that is equal to or exceeds the amount of the judgment debt – whether any such claim(s) could not have been set up in the proceeding in which the judgment or order was obtained – whether the Court should go behind the judgment – application dismissed

MIGRATION – Carer visa – refusal – review of Administrative Appeals Tribunal (“Tribunal”) decision. ADMINISTRATIVE LAW - Allegation the decision of the Tribunal was affected by jurisdictional error – allegation Tribunal failed to consider “matching up” of medical needs and available services - allegation Tribunal did not put relevant information to the applicant under s.360 of the Migration Act 1958.

INDUSTRIAL LAW – Costs – where 6 offers made to Applicant to resolve matter – where offers rejected – final hearing held over 3 days and adjourned part heard – Applicant subsequently sought 12 month adjournment of part heard hearing - Applicant discontinued application – Respondent applied for indemnity costs – application vexatiously instituted or instituted without reasonable cause – Applicant’s unreasonable acts and omissions caused the Respondent to incur costs - indemnity costs ordered

MIGRATION – judicial review – Protection (subclass 866) visa – where Administrative Appeals Tribunal affirmed decision of the first respondent that applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth) – applicant in part seeks impermissible judicial review of first respondent’s decision – whether Tribunal failed to assess the applicant’s claim for protection – found no jurisdictional error on behalf of the Administrative Appeals Tribunal

INDUSTRIAL LAW – Application for costs following final hearing – general protection proceedings pursuant to the provisions of the Fair Work Act 2009 – whether the refusal to accept an offer to settlement amounts to an unreasonable act or omission – whether the applicant’s conduct of the proceedings was unreasonable – matters to be considered

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred in applying cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) – whether the Tribunal’s decision was “illogical” or “irrational” – whether the Tribunal erred by failing to invite the applicant to attend a hearing – whether the conduct of the applicant’s representative amounted to a fraud on the Tribunal – no jurisdictional error – application dismissed.

BANKRUPTCY – application for a sequestration order heard together with application for dismissal of creditor’s petition – whether the Court has jurisdiction to make sequestration order pursuant to s 43(1) of the Bankruptcy Act 1966 (Cth) – whether at time of act of bankruptcy the respondent had a dwelling-house in Australia for purpose of s 43(1)(b)(ii) – whether the creditor’s petition is an abuse of the Court’s process - petition opposed on the basis of asserted offsetting and counter-claims and extant fraud proceeding directed at the underlying judgment debt – application for summary dismissal dismissed – creditor’s petition dismissed

MIGRATION – Student (Temporary) (Class TU) Student (Subclass 500) visa – refusal – review of Administrative Appeals Tribunal (“Tribunal”) decision. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it made incorrect factual findings.

MIGRATION – Student visa – genuine temporary entrant – alleged denial of procedural fairness – template grounds 

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – where Tribunal affirmed the delegate’s decision to refuse the applicant a Skilled 

MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority failed to sufficiently raise critical matters with applicant – whether Authority afforded applicant a real opportunity to reply to adverse information – whether Authority erred by failing to invite applicant to interview – no jurisdictional error – application dismissed  

MIGRATION LAW – JUDICIAL REVIEW – Where delegate made favourable findings and authority made adverse findings – Whether it was legally unreasonable for authority to not exercise discretion to seek new information under s.473DC – Where adverse finding by authority related to an integral component of the applicant’s claims –Jurisdictional error established  

MIGRATION – Application for extension of time for review of decision to refuse a humanitarian visa – where application was lodged 300 days after expiry of the statutory timeframe – significant period of delay not adequately explained – no particular prejudice to the Applicant were the extension of time application refused – where substantive application is futile and lacks merit – extension of time ought not be granted – application refused.

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or for the applicant – application dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – instructions for applicant in relation to applications for reinstatement.