Judgments

FAIR WORK – general protections application lodged one day after proscribed time – where short delay due to representative error - no particular prejudice to the respondent - at least the basis of a claim articulated – extension of time granted

BANKRUPTCY – VESTING ORDER AS TO DISCLAIMED PROPERTY – Where a bankrupt was the registered proprietor of Torrens system land – Where the Trustee disclaimed the property – Where the State of Victoria sought a vesting order – Where the Court considered it was just and equitable for the vesting of the property in the State of Victoria – Orders made

MIGRATION – protection visa – application for review of a summary dismissal decision made by a Registrar – where an application for review of the delegate’s decision was lodged out of time and therefore Tribunal lacked jurisdiction – no jurisdictional error identified - application cannot succeed and is dismissed with costs

MIGRATION – Protection (Class XA) (subclass 866) visa – Refugee Review Tribunal – Application for Extension of Time – Delay of 5,184 days – No arguable jurisdictional error on proposed grounds – Extension of Time refused – Application for judicial review dismissed with costs

MIGRATION – Protection (subclass 866) visa – Application for review of Registrar’s dismissal of reinstatement application – Extension of time sought – Consideration of length of time and reasons for delay in filing review application – Consideration of reinstatement application –  Reasons for non-attendance at court leading to dismissal of substantive application wholly inadequate – evidence of applicant unreliable – Substantive application raised no arguable grounds – Extension of time refused  – Application for review dismissed with costs

BANKRUPTCY – Interlocutory Application – Application to set aside sequestration order – Application to recuse – Procedural fairness – Actual or apprehended bias – Application dismissed  

BANKRUPTCY – Interlocutory Application – Ex tempore judgment – Application dismissed

FAIR WORK – alleged breach of contract – alleged underpayments and unlawful deductions in contravention of the Fair Work Act 2009 (Cth) with cross claim to rectify alleged overpayment – where the Applicant’s remuneration was reduced following the First Respondent’s loss of a significant contract and, subsequently, unilateral deductions were made.

GENERAL PROTECTIONS – various adverse actions including dismissal taken in alleged contravention of s.340 of the Act – where Applicant had complained about remuneration and was summarily dismissed for alleged serious misconduct in respect of communications with clients. 

MIGRATION – Decision of Administrative Appeals Tribunal – protection visa – where three Tribunal hearings held – whether failure by Tribunal to consider or engage with relevant evidence – jurisdictional error established – writs issued

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) – whether the IAA’s decision was legally unreasonable –whether the IAA failed to consider relevant considerations or claims – application dismissed

MIGRATION – Extension of time in which to commence s 476 Migration Act review – foreshadowed challenge to rationally based credit findings of the Tribunal cannot succeed – not in the interests of justice to extend time – application to do so dismissed

MIGRATION – Protection (Class XA) (Subclass 866) visa – Application for judicial review – Whether wrong legal test applied – Correct criteria applied – Whether unreasonable finding of effective state protection – Finding of effective state protection open on country information - Decision not legally unreasonable – No jurisdictional error found – Application for judicial review dismissed – Costs ordered.

CONSTITUTION – Exercise of delegated power by Registrar – nature of de novo review

MIGRATION – Registrar’s decision affirmed and review dismissed as no arguable case for extension of time

MIGRATION – application for an extension of time – decision made by the Immigration Assessment Authority – protection visa – whether the underlying application for judicial review has merit – whether the Authority’s decision was unreasonable – underlying application has limited prospects of success – extension of time refused. 

MIGRATION – protection visa – decision of the Administrative Review Tribunal – failure to appear before the Tribunal – where Tribunal dismissed the application pursuant to s 99 of the Administrative Review Tribunal Act 2024 (Cth) – whether the applicant was afforded sufficient time to prepare materials – whether the Tribunal failed to consider the applicant’s grounds – no jurisdictional error established – application dismissed. 

MIGRATION – Judicial review – Administrative Appeals Tribunal (as it then was) – whether the Tribunal erred in finding that there was a ground of cancellation under s 116(1AA) – whether the Tribunal failed to give proper, genuine and realistic consideration to the risk of harm to the applicants if returned to home country – whether the Tribunal failed to consider the best interests of the applicants’ Australian citizen children and the harm they would face if returned to Sri Lanka – Court finds no jurisdictional error made by the Tribunal – Application dismissed 

MIGRATION- protection visa – application for judicial review of decision of Administrative Review Tribunal –  whether Tribunal complied with procedural fairness obligations in s 55 of the ART Act – whether Tribunal complied with s 106(3) of the ART Act in making a decision without a hearing where the applicant requested –  what is meant by issues for determination - whether issues could be adequately determined - whether decision legally unreasonable – where new dispositive issues raised - whether failure to consider evidence – whether failure to consider integers –  application dismissed.

MIGRATION - Application for judicial review – Student (Subclass 500) visa – Non-appearance by applicant - Application dismissed pursuant to rr 5.08(c), 5.10(a), 22.04(1)(a)(i) of the Rules. 

MIGRATION – Whether Immigration Assessment Authority erred by failing to have regard to additional information – whether factual findings made without evidence – challenges to factual findings. 

MIGRATION – judicial review – Protection (Class XA) (subclass 866) visa – whether the Tribunal lawfully exercised its powers under s 106(1) of the Administrative Review Tribunal Act 2024 (Cth) to make its decision on the documents without holding a hearing where it determined the matter on a different dispositive issue to that of the delegate – what is required for a valid request for the purposes of s 106(3)(b)(ii) – meaning of the phrase “it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding” – whether or not the preconditions in s 106(3) are met is a question of jurisdictional fact which is subject to judicial review by the courts – no jurisdictional error disclosed – application dismissed. 

MIGRATION – application for judicial review – application for Protection (Class XA) (Subclass 866) visa –applicant in immigration detention – extension of time application – extension of time granted –– whether Administrative Review Tribunal erred by applying unreasonable reasoning – no jurisdictional error established – application dismissed. 

MIGRATION – Judicial Review – student visa – genuine temporary entrant – broad allegations of procedural unfairness – invitation to impermissibly engage in merits review of delegate’s decision – application dismissed.

HUMAN RIGHTS - Disability discrimination – whether in terminating an employee’s employment the employer unlawfully discriminated against employee because of a disability the employer imputed to the employee – whether in terminating the employee’s employment to whom the employer imputed a disability the employer failed to make reasonable adjustments for the employee – unlawful discrimination not established. 

INDUSTRIAL LAW – where the second respondent was unco-operative throughout the proceeding – where it was important that all employers appreciate and understand that they are required to comply with provisions of industrial relations legislation – where no contrition was shown for non-compliance with a Compliance Notice – orders for the payment of a pecuniary penalty made accordingly.

MIGRATION – Administrative Appeals Tribunal - student visa – applicant not having a certificate of enrolment – Tribunal refusing application for adjournment – applicant having had ample time to obtain a certificate of enrolment. 

MIGRATION – application for review of registrar’s decision – registrar dismissed reinstatement of judicial review application – whether in interests of administration of justice to set aside registrar’s decision – hearing de novo of reinstatement application – no reasonable prospects of success – review application dismissed.

MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa –whether Authority erred in declining to exercise power under s 473DC to invite applicant to give new information at interview – whether error of fact by Authority involved jurisdictional error – application dismissed. 

 MIGRATION – protection (subclass 866) visa – application seeking constitutional writ of Tribunal decision to affirm Ministers decision – no jurisdictional error – application dismissed.  

MIGRATION – Protection (Class XA) visa - Application for judicial review – Whether Tribunal failed to consider each integer of the claims - Whether correct legal test applied - Whether Tribunal decision legally unreasonable – Tribunal decision not legally unreasonable - No material jurisdictional error identified - Application dismissed.

MIGRATION – Protection (Class XA) visa - Application for judicial review – Whether Tribunal failed to consider each integer of the claims - Whether correct legal test applied - Whether Tribunal decision legally unreasonable – Tribunal decision not legally unreasonable - No material jurisdictional error identified - Application dismissed.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – applicant absent from Court hearing – dismissal for non-appearance. 

MIGRATION – judicial review – extension of time application – whether satisfactory explanation for delay of 9 days in filing application – merits of underlying application – extension of time refused  MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa on basis that applicant did not provide current evidence about whether applicant had criminal history in country of nationality – whether exercise of power by Tribunal to request current evidence was legally unreasonable – whether Tribunal denied applicant procedural fairness. 

MIGRATION – application for Protection (Class XA) (Subclass 866) visa – Administrative Appeals Tribunal not satisfied that applicant is a person to whom Australia owes protection obligations as outlined in s 36(a) or (aa) –delegate’s decision affirmed – whether Tribunal made a jurisdictional error in applying s 423A – no jurisdictional error established – application dismissed. 

MIGRATION – application for Protection (Class XA) (Subclass 866) visa – Administrative Appeals Tribunal not satisfied that applicant is a person to whom Australia owes protection obligations as outlined in s 36(a) or (aa) –delegate’s decision affirmed – whether Tribunal’s decision was affected by jurisdictional error –no jurisdictional error found – application dismissed. 

MIGRATION – Judicial Review – protection visa – review of ex tempore decision of the Tribunal – complementary protection – whether Tribunal misapplied s 5J(6) of the Migration Act 1958 (Cth) – whether new issues arose before the Tribunal on review – whether Tribunal failed to consider distinct integers of the claim – active and intellectual engagement – adequacy of reasons – legal unreasonableness – no jurisdictional error – application dismissed.

BANKRUPTCY – application for the sale of property – vesting of property – co-ownership – indemnity costs – orders made consistent with the trustee’s obligations under s 30 of the Bankruptcy Act 1966 (Cth).   

MIGRATION - judicial review – protection visa - where Tribunal confirmed its decision to dismiss the application before it given the non-appearance by the Applicant – HELD no error established by the Tribunal – application dismissed.

MIGRATION – judicial review – student visa – where visa cancelled because Applicant was not enrolled in a registered course of study – whether Tribunal erred by affirming decision of a delegate of the Minister to cancel the visa – HELD no error by the Tribunal – application dismissed. 

MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal did not consider relevant considerations – whether the Tribunal’s decision was affected by error of law – whether the Tribunal’s decision was legally unreasonable.

MIGRATION - protection visa – application to review decision of Administrative Appeals Tribunal – whether failure to consider evidence including country information – weight given to country information – whether Tribunal had duty to inquire - whether Tribunal biased – whether decision legally unreasonable – whether procedurally unfair – presence of extra Tribunal Member as observer - application dismissed. 

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – whether a claim was made or clearly emerged to the effect that the applicant faced risk of harm on account of his religion – whether such a claim was considered by the Tribunal – writs issued. 

MIGRATION – Application for judicial review – Two decision - Protection (Class XA) (subclass 866) visa - Bridging visa – Whether Tribunal had jurisdiction to entertain the review because the application was out of time - Whether the notification of outcome of decision was deemed to have been received – Whether application for visa was finally determined – Whether applicant entitled to General Bridging Visa - No jurisdictional error – Application dismissed.

MIGRATION – application for reinstatement – where judicial review application dismissed following non-appearance by applicant at hearing – whether applicant provided satisfactory explanation for failure to appear at hearing - whether judicial review application has reasonable prospects of success – application dismissed. 

MIGRATION - Student (Class TU) (Subclass 500) visa – Application for judicial review – Whether Tribunal considered all evidence and claims – Denial of natural justice - No jurisdictional error – Application dismissed. 

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal misconstrued the definition of ‘significant harm’ in s 36(2A) of the Migration Act 1958 (Cth) – whether the Tribunal failed to investigate the applicant’s claims – whether the Tribunal complied with its procedural fairness obligations – whether the Tribunal failed to consider evidence that was before it – no jurisdictional error established – application dismissed. 

INDUSTRIAL LAW – COSTS – where respondents filed a strike-out application in respect of the applicant’s pleading – where the respondents filed a Notice of Discontinuance of the strike-out application the day before the hearing date for that application – where the respondents must have appreciated that substantial costs would have been incurred by the applicant in resisting the application – where the respondents must have appreciated that valuable court time had been set aside for the hearing of the application - where there was no sworn evidence before the Court as to why the application had been discontinued – whether the conduct of the respondents was contrary to the purpose of the practice and procedure provisions of the Federal Circuit and Family Court of Australia Act 2021 – where conduct of the respondents found to be unreasonable under the provisions of s. 570(2)(b) of the Fair Work Act 2009 – respondents ordered to pay the applicant’s costs of and incidental to the application on a party/party basis.

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – application for an extension of time – where the delay was not significant – where the explanation for the delay was unsatisfactory – where the merits of the substantive application were not strong – whether the applicant was properly notified of the delegate’s decision – application for extension of time dismissed. 

MIGRATION – application for judicial review of delegate’s decision – jurisdiction of Federal Circuit and Family Court in respect of primary decisions – no jurisdiction – application dismissed. 

HUMAN RIGHTS – COSTS – whether costs should be awarded following an unsuccessful application for leave pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) – where costs usually follow the event – where the Court has broad discretion pursuant to s 214 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – where actual costs particularised in line with sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – applicant ordered to pay the respondent’s costs and disbursements in a fixed sum as sought. 

MIGRATION – costs – application for costs of the proceeding to total over $10,000 made without evidence or notice – scale costs ultimately sought and ordered.