Judgments

Division 2 - General federal law

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BANKRUPTCY – application under s 50 – preserve status quo – criteria - reasonable living expenses and reasonable living costs 

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MIGRATION – Judicial review – Protection visa – Where there was a dispute as to whether the Immigration Assessment Authority received Applicant’s submissions emailed to it – Where s. 161(1)(d) of the Evidence Act 1995 (Cth) contained an evidentiary presumption of receipt – Where evidence adduced rebutted the presumption – Where even though the presumption was rebutted the Court determined as a matter of fact the Authority received the submissions – Where the Authority did not consider the submissions – Jurisdictional error – Decision quashed – Matter remitted to Authority 

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INDUSTRIAL LAW – FAIR WORK – application for penalties – consideration of appropriate penalty amount – where respondents have not participated in proceedings – need for general and specific deterrence – further consideration of whether it is appropriate for any penalty to be paid to applicant’s representative – where applicant seeks penalties be made payable to representative – penalty orders made. INDUSTRIAL LAW – FAIR WORK – application for costs – whether order for costs ought be made – s 570 of the Fair Work Act 2009 (Cth) – where applicant entered into conditional costs agreement with JobWatch – consideration of indemnity principle which requires legal liability to pay costs – costs orders made. 

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MIGRATION – application for a mandatory injunction and a writ of habeas corpus requiring the release of the applicant from immigration detention – whether the applicant’s detention was reasonably necessary to give effect to the purposes for which respondents contended it was necessary for the applicant to remain in custody – applicant’s detention was not reasonably necessary – order for release made. 

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MIGRATION LAW – application for judicial review – Student (Class TU) (subclass 500) visa – decision of Administrative Appeals Tribunal – where applicants take issue with Tribunal’s failure to consider whether they met genuine temporary entrant criteria – where dispositive issue before Tribunal was whether first applicant had current certificate of enrolment – where applicant was requested to, but did not provide, certificate of enrolment – where applicant sought adjournment to provide certificate of enrolment which was refused – where Tribunal gave logical and probative reasons for refusal – where Tribunal not required to consider genuine temporary entrant criteria – no jurisdictional error established – application dismissed with costs. 

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MIGRATION LAW – where the grant of an approval of a nomination application was a precondition to the grant of a visa to the first applicant where there was no approval – where there was therefore no utility in granting an extension of time for the filing of the application for review – where Tribunal affirmed the decision of the delegate – no jurisdictional error established – application dismissed.  

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MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal (“Tribunal”) – citizen of Bangladesh – Student (Temporary) (Class TU) visa – where the delegate of the first respondent was not satisfied that the applicant genuinely intended to stay in Australia – where at the time of the hearing before the Tribunal the applicant held a current COE – where at the time of the Tribunal decision the COE was no longer current – where the determinative issue before the Tribunal was that cl 500.211 of Sch. 2 Migration Regulations (Cth) 1994 was not met – whether the Tribunal afforded the applicant procedural fairness – self represented applicant – application to reopen proceedings.

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HUMAN RIGHTS – Disability discrimination – whether in dismissing the applicant the respondent unlawfully discriminated against the applicant on the ground of the applicant’s disabilities – whether by taking other actions the respondent unlawfully discriminated against the applicant by subjecting the applicant to any other detriment – whether by requesting information in relation to the applicant’s disabilities the respondent did so in connection with the respondent’s unlawfully discriminating against the applicant on the ground of her disabilities – whether the respondent harassed the applicant in relation to her disabilities – declarations made that the respondent unlawfully discriminated against the applicant by dismissing her from the respondent’s employment and by subjecting the applicant to other detriment – declaration made that respondent requested information from the applicant in relation to her disabilities in connection with the respondent’s unlawfully discriminating against the applicant on the ground of her disabilities. 

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MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal –protection visa – consideration of whether Tribunal’s decision made in accordance with law – where Tribunal’s findings reasonably open on the evidence before it – application dismissed with costs. 

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MIGRATION LAW – application for judicial review – Student (Temporary) (Class TU) visa – decision of Administrative Appeals Tribunal – where Tribunal not satisfied applicant met genuine temporary entrant criteria in cl 500.212 of Sch 2 to Migration Regulations 1994 (Cth) – consideration of whether Tribunal failed to properly and/or reasonably consider whether applicant met cl 500.212 and/or properly or reasonably applied Ministerial Direction No. 69 – where Tribunal’s conclusions reasonably open on the evidence before it – application dismissed with costs. 

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PRACTICE AND PROCEDURE - construction of Orders where the parties do not agree upon the form of declarations to be made following the Court’s findings regarding liability – no reference by any party to authority regarding construction – declaration to be made in the alternative – further dispute regarding allocation of hearing regarding penalty where the parties were advised in May 2023 of the presiding Judge’s retirement in mid-2024 – considerations of “public resources” and the imposition on another Judge to determine penalty.  

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MIGRATION – Review of Registrar decision – where review is out of time and no application for extension made – where applicant would not engage with the Court and insisted that the matter be removed directly to the Federal Court – where no arguable case for the relief sought was made out – extension refused – application dismissed

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MIGRATION – Administrative Appeals Tribunal – Regional Employer Nomination (Permanent) (Class RN) visa - where the Tribunal undertook a qualitative assessment of the “need” for an employee to be nominated –where the Tribunal identified the need to consider the financial capacity of the nominator to employ the nominee into the future - statutory construction – whether the regulation provisions constitute jurisdictional facts – materiality –application dismissed 

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MIGRATION – interlocutory injunction – no current course of employment – cancelled - cancelled 6 -7 months earlier – application for interlocutory injunction is dismissed 

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INDUSTRIAL LAW – underpayment of contractual entitlements including superannuation – failure to pay for public holidays and accrued leave – failure to provide access to relevant Award and NES – pecuniary penalties to be imposed pursuant to section 546 of the Act – compensation awarded and payable jointly and severally by the respondents – lump sum awarded in lieu of interest on compensation awarded – pecuniary penalties imposed against each respondent 

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MIGRATION – Application for extension of time to bring proceeding – Relevant considerations. MIGRATION – Protection Visa – Refusal – Review of Refugee Review Tribunal decision. 

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MIGRATION – application for interlocutory injunction restraining Minister for Immigration, Citizenship and Multicultural Affairs from removing applicant from Australia on the ground that if no injunction is granted the applicant’s ability to pursue an application for review before the Administrative Appeals Tribunal will be adversely affected – whether the applicant has identified or arguably identified a legal, statutory, or equitable right which is to be determined at the trial of the proceeding and in respect of which he seeks final relief which may or may not be injunctive in nature – applicant has identified no such right – application dismissed.

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INDUSTRIAL LAW – Fair Work – application for default judgment pursuant to rule 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – Applicant seeking declaration of contravention of the Fair Work Act 2009 (Cth) by reason of failure of the Respondent to comply with compliance notice – failure of the Respondent to file and serve a notice of address for service, response and defence – declarations made – orders made requiring Respondent to comply with the requirements of the compliance notices and for payment of interest – penalty.

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MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – Temporary Skill Shortage (class GK) (subclass 482) visa – whether the Administrative Appeals Tribunal had jurisdiction – no jurisdiction - 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 applicants protection visas – whether the Tribunal failed to afford procedural fairness to the applicants – where matters raised by the applicants seek merits review of Tribunal decision – no jurisdictional error – application dismissed.  

Judgment published date:

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal, affirming a decision to cancel the applicant’s Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal asked irrelevant questions – whether the Tribunal failed to consider or misunderstood aspects of applicant’s evidence – whether the Tribunal member demonstrated actual bias – no jurisdictional error – application dismissed. 

Judgment published date:

MIGRATION – persecution – review of Administrative Appeals Tribunal decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – whether application of wrong test amounted to jurisdictional error in circumstances where the Administrative Appeals Tribunal rejected the factual contentions on which the application was essentially based.  

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MIGRATION LAW – Whether the Tribunal intellectually engaged in an appropriate way with all of the claims made by the applicant – whether the applicant was denied procedural fairness – whether the Tribunal had regard to irrelevant considerations – no jurisdictional error established – application dismissed

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MIGRATION – Protection Visa – refusal – review of Immigration Assessment Authority (“IAA”) decision.

ADMINISTRATIVE LAW – allegation that the Tribunal’s decision affected by jurisdictional error – no matter of principle. 

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MIGRATION LAW – JUDICIAL REVIEW – No longer spouse or de facto partner – Whether there was non-judicially determined family violence – Whether requirements demonstrating non-judicially determined family violence were satisfied according to regulations – Oral submission not taking grounds further  

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INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – costs – relevant principles.

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MIGRATION – review of registrar’s decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed  

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MIGRATION -  Safe Haven Enterprise Visa – Where the Authority failed to consider whether or not the applicant would engage in further political activity -  Where there was inconsistencies in translated documents -  Whether there was a failure by the Authority to seek new information pursuant to s 473DC- Whether the Authority was under an obligation to give reasons for the exercise of a procedural statutory discretionary power -  application upheld  

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MIGRATION – Administrative Appeals Tribunal – whether Tribunal failed to consider evidence – whether the Tribunal otherwise erred – whether the Tribunal erred in its consideration of clauses 892.221(1) and 892.221 of the Regulations – whether there was jurisdictional error.   

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INDUSTRIAL LAW – Fair work small claim – oral contract of employment –principal of a Chinese language school – unpaid penalties and annual leave – application of relevant award. 

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CHILD SUPPORT – where applicant seeks leave to amend application to include addition ground – leave granted  

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MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the conduct of the applicants’ “agent” amounted to a fraud on the Tribunal – whether the Tribunal failed to properly invite the applicants to provide or comment on information pursuant to s 359 or s 359A of the Migration Act 1958 (Cth) – whether the Tribunal failed to invite the applicants to attend a hearing before it – whether the Tribunal erred by proceeding to make a decision on the review without taking any further action to obtain information – whether the Tribunal failed to afford the applicants procedural fairness – no jurisdictional error – application dismissed.

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MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – jurisdictional error identified by the Minister – unable to obtain the applicant’s consent to remit matter – Court satisfied the Tribunal erred – writs issued.

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MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal was required to “investigate” the applicant’s claims – whether the Tribunal failed to consider a claim or an integer of the applicant’s claims – whether the Tribunal failed to consider relevant material – whether the Tribunal failed to properly invite the applicant to attend a hearing before it – whether the conduct of the applicant’s “agent” amounted to a fraud on the Tribunal – whether the Tribunal’s decision was unreasonable – no jurisdictional error – application dismissed.

Judgment published date:

FAIR WORK – Whether the Applicant was an employee – Where because the Applicant was not an employee there was no contravention of s. 323(1) of the Fair Work Act 2009 or s. 44 and s. 117 of the FW Act – Where primary contravention accessorial liability pursuant to s. 550 not proved – No contravention of the FW Act

INDUSTRIAL LAW – EMPLOYMENT – Where there was no term of any employment agreement that the Applicant be paid an annual salary of $150,000 – Whether the Applicant was an employee on terms other than those pleaded – Where the Board of the First Respondent resolved to pay the Applicant a nominal salary to cover all expenses – Where payment made to the Applicant as a director and not as an employee – Where proving employment was a necessary premise of proving reasonable notice claim – No breach of any employment contract

PRACTICE AND PROCEDURE – JURSIDICTION – Whether the Court had jurisdiction as to a non-federal claim as to a Loan Agreement because together with the federal claims it comprised a single justiciable controversy – Where the Loan Agreement was a separate and distinct claim Court did not have jurisdiction as to the Loan Agreement claim

INDUSTRIAL LAW – LOAN CONTRACT – Whether Applicant proved oral Loan Agreement – Where the Court found there was no Loan Agreement – Application dismissed 

Judgment published date:

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of the application for an extension of time – no appearance by or on behalf of the applicants – 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).

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MIGRATION – Application for reinstatement of an application for judicial review – Temporary Graduate visa – Application dismissed  

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FAIR WORK – PRACTICE AND PROCEDURE – respondents’ application for joinder – where proposed respondents seek to commence cross-claim for breach of director’s duties under the Corporations Act 2001 (Cth) – where applicants did not consent to or oppose application – joinder granted. FAIR WORK – PRACTICE AND PROCEDURE –respondents’ application for transfer to the Federal Court of Australia – relevance of the wishes of the parties and the interests of the administration of justice – where applicants did not consent to or oppose application – where there is doubt as to whether the Federal Circuit and Family Court of Australia (Division 2) has jurisdiction in relation to the proposed cross-claims – transfer order made. 

Judgment published date:

MIGRATION – protection visa – decision of the Immigration Assessment Authority -  where applicant alleges Authority failed to consider the consequences of his return to Sri Lanka on temporary travel documents – where Authority rejected the applicant’s central protection claims based, in part, on the identification of inconsistencies in his accounts – where applicant alleges that these findings involved factual errors – whether the making of factual errors undermined the credibility findings of the Authority as a whole – where findings as a whole survived despite error of fact – no jurisdictional error – application dismissed with costs

Judgment published date:

MIGRATION – Student (Temporary) (Class TU) visa – Administrative Appeals Tribunal – Whether the applicant satisfied the requirements under the genuine temporary entrant criterion – Whether the Tribunal failed to engage with submissions made by the applicant - Whether the Tribunal’s decision was affected by legal unreasonableness – no merit – application dismissed 

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MIGRATION -  judicial review of decision of Administrative Appeals Tribunal refusing Partner (Residence) visa – where applicant’s former partner withdrew sponsorship – whether applicant made non-judicially determined claim of family violence – whether statutory declarations produced by applicant met prescribed evidentiary requirements – circumstances in which statutory declaration made by social worker – whether social worker had provided counselling or assistance to applicant – where social worker engaged to assess applicant and write report - whether applicant denied procedural fairness – no duty to make further inquiries – application dismissed 

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MIGRATION – Administrative Appeals Tribunal - application for judicial review - Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa – whether Tribunal fell into jurisdictional error – whether jurisdictional error is made out – no jurisdictional error made out – application is dismissed   

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INDUSTRIAL LAW – whether the respondent employer was justified in purporting to summarily dismiss the applicant from his employment – respondent employer not justified, and by purporting to summarily dismiss the applicant from his employment the respondent employer  repudiated the contract of employment – whether the applicant exercised workplace rights by making complaints or inquiries in relation to his employment – applicant exercised workplace rights – whether respondent employer proved that it did not dismiss the applicant from his employment because he exercised workplace rights or for reasons that did not include as a substantial and operative factor the applicant’s having exercised workplace rights – the respondent employer has not so proved – whether applicant’s service as an employee of a related company of the respondent employer in the United Kingdom counted as continuous service with the respondent employer for the purposes of the Long Service Leave Act 1955 (NSW) – the applicant’s service with related companies in the United Kingdom did not count as continuous service of the respondent employer – declarations made and directions made for the filing of submissions on damages and compensation.

Judgment published date:

MIGRATION – Administrative Appeals Tribunal – Temporary Work (Skilled) visa (subclass 457) – whether the Tribunal fell into jurisdictional error – minimum English language requirements – Nomination expired – jurisdiction to hear matter – statutory interpretation of “on the basis of nomination” – jurisdictional error is made out – the application fails on minimum English requirements – the application is dismissed 

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CHILD SUPPORT – no question of law – no jurisdiction – evidence to support findings of fact – appeal dismissed with fixed costs  

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MIGRATION – costs – fixed costs application – above scale amount sought by the Minister – relevant principles – fixed costs order made 

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BANKRUPTCY – Application for review of a sequestration order made by a registrar – sequestration order sought on the basis of unsatisfied judgment debts – where the debtor asserts there is sufficient cause for the sequestration order to not be made – whether the debtor has shown he has the ability to pay his debts as they fall due – act of bankruptcy – hearing de novo – application dismissed     

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MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Have Enterprise Visa (subclass 790) – consideration of whether Authority failed to consider applicant’s claim, submissions or evidence – whether conclusions reached by the Authority were reasonably open – whether Authority erred in not seeking further information from applicant’s brother – consideration of whether Authority’s findings were unreasonable – no jurisdictional error established – application dismissed with costs. 

Judgment published date:

PRACTICE AND PROCEDURE – application for an extension of time to seek review of a decision made by a Registrar – where the Registrar dismissed an application seeking reinstatement of a judicial review application – where the judicial review application had earlier been dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 because the applicants failed to appear at a callover – extension of time refused. 

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BANKRUPTCY –trustee has beneficial interest in property of bankrupt estate – application for orders directing Registrar of Titles to cancel Certificate of Title and issue new one to trustee – where property to be sold to satisfy creditor claims – where bankrupt has not produced certificate of title despite trustee demands – where administration of bankrupt estate has been hindered - where trustee seeks cancellation of current certificate of title – whether discretion to be exercised – declaration and orders made – sale of property stayed for 60 days