Judgments

HUMAN RIGHTS – DISCRIMINATION – where the applicant alleges that the first respondent discriminated against him unlawfully in the course of his employment with the second respondent, in breach of sections 9 and 18C of the Racial Discrimination Act 1975 (Cth) – where the applicant claims that the second respondent is vicariously liable for those breaches – where the applicant also claims that the second respondent has independently breached section 9 of the Act by alleged underpayment of wages to the applicant – where the applicant seeks damages, declarations and an apology – consideration of whether the alleged conduct occurred and if so whether it was in breach of section 9 – consideration of whether any conduct was made otherwise than in private pursuant to section 18C of the Act – finding that the conduct did not breach sections 9 and 18C of the Act – application dismissed. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant partner visa – whether Tribunal failed to consider or have regard to text messages between applicant and sponsor in considering degree of companionship and emotional support they drew from each other – no jurisdictional error established – application dismissed 

MIGRATION – Persecution – Review of Immigration Assessment Authority (“IAA”) decision – visa – protection visa – refusal.

 ADMINISTRATIVE LAW – Allegation that the IAA’s decision was affected by jurisdictional error by reason that it was unreasonable, illogical, irrational and against the weight of the evidence.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal was required to make finding as to why militia group issued threat letter to applicant’s family - application dismissed 

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – where the applicant did not attend a scheduled hearing – whether the Tribunal’s exercise of discretion under s 362B(1A)(a) of the Migration Act 1958 (Cth) was legally unreasonable or otherwise affected by error – application dismissed 

CONSUMER LAW – where applicant seeks declaration and orders under s 123 of the Personal Property Securitys Act 2009 (Cth) and s 100 of the National Credit Code – where respondent has failed to meet vehicle loan repayments – where applicant seeks to enter property to seize vehicle – where respondent did not participate in the proceedings – where application for substituted service was granted previously – order made requiring the respondent to deliver vehicle within 7 days – order made that applicant can enter the respondent’s residential property or any other property he has apparent control over for the purposes of repossessing the vehicle – respondent to pay applicant’s costs in a fixed amount 

PRACTICE AND PROCEDURE – Fair Work – where earlier finding of contravention of s 340(1) of the Fair Work Act 2009 (Cth) – where finding of liability reflected failure of the respondent employer to discharge onus under s 361(1) of the Fair Work Act- where proceeding listed separately for hearing on relief – where respondent sought to rely on evidence of “decision-maker” to make submissions about compensation and penalty – where “decision-maker” had not given evidence at the liability hearing – where applicant objects to parts of affidavit – whether respondent is estopped from relying on parts of evidence of “decision-maker” because they invite the Court to trespass on findings of fact or law made in the liability judgment – objections upheld in part 

MIGRATION – Skilled Independent (Points-Tested) (Subclass 189) visa - Application for review of a Registrar’s decision – Application for an extension of time to seek review – Rule 21.02(2) – Whether adequate explanation for delay – Consideration of merits – Allegation of fraud perpetrated by Migration Agent – Allegation unsupported by evidence – No particulars of jurisdictional error – No jurisdictional error apparent – No reasonable prospects of success – Application for review dismissed with costs. 

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa - Application for judicial review of a Registrar’s decision – No reasonable prospects of successfully prosecuting application – Application dismissed. 

BANKRUPTCY – application of trustee under s 146 of the Bankruptcy Act 1966 (Cth) for distribution of dividends – where no statement of affairs filed by the Bankrupt with the Official Receiver – application heard ex parte – orders that the distribution of dividends proceed as if the Bankrupt had filed a statement of affairs as required by the Act – application granted. 

MIGRATION – Judicial review – Protection visa – Administrative Appeals Tribunal – Indonesia - Where the Tribunal was only required to assess the complementary protection criterion – Whether Tribunal assessed harm at present or in the reasonably foreseeable future – Where Tribunal used the words ‘Indonesia today’ – Unfair reading of Tribunal’s decision – application dismissed 

MIGRATION – judicial review – refusal of student visa – application under s 476 of the Migration Act 1958 (Cth) – Tribunal determined application on the basis of cl.500.211 (lack of enrolment in a course of study) rather than cl.500.212 (genuine temporary entrant) – whether failure to consider cl.500.211 constituted jurisdictional error – whether Tribunal failed to afford the Applicant procedural fairness 

MIGRATION – Judicial Review – Where Administrative Appeals Tribunal (Tribunal) refused to grant applicant a student visa as it found the applicant was not a genuine applicant for entry and stay as a student as required under cl 500.212 – Whether the Tribunal failed to give the applicant an opportunity to respond to reasons for refusal – Whether Tribunal used Direction No. 69 as a checklist – Whether the Tribunal failed to obtain further information under s 359 of the Act – Where applicant stated that he experienced communication issues with the Tribunal in circumstances where he was provided access to an interpreter – application dismissed 

MIGRATION – application for judicial review of a decision by the Tribunal affirming a decision not to grant the first applicant a Medical Treatment (Visitor) (Class UB) visa – whether the Tribunal ignored the first applicant’s medical condition and failed to recognise the first applicant as a person who needed medical treatment – whether the Tribunal failed to understand the first applicant’s serious depression – whether the Tribunal misunderstood the first applicant’s plan and reason why the first applicant did not wish to return to Nepal – whether the Tribunal was correct in finding that it did not have jurisdiction with respect to the second applicant – no jurisdictional error – application dismissed  

MIGRATION – judicial review of a decision made by the Administrative Appeals Tribunal – student visa – whether s 366C of the Migration Act 1958 (Cth) was enlivened – no jurisdictional error established – application dismissed.  

MIGRATION – protection visa – application for review of a decision of the Administrative Appeals Tribunal – whether the Tribunal erred in failing to consider the risks faced by the applicant’s family as forming a basis for the fear of persecution faced by the applicant – whether the claim of vicarious harm to the applicant was articulated or suggested on the material before the Tribunal – jurisdictional error established.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa - whether Tribunal erred in finding applicant was not credible - no jurisdictional error established – application dismissed.  

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal erred in not accepting country information on which applicant relied or erred in preferring and relying on other country information – application dismissed 

MIGRATION – protection visa – decision of the Immigration Assessment Authority – whether the IAA failed to consider a claim which clearly emerged on the material before it – membership of a particular social group – whether the IAA failed to give genuine consideration to the applicant’s claims – illogicality – no jurisdictional error established – application dismissed 

MIGRATION – judicial review – extension of time application – merits of underlying application – lengthy delay – unsatisfactory explanation for delay – extension of time refused  

MIGRATION – judicial review – protection visa refusal – credibility – no jurisdictional error established – application dismissed. 

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) – whether the IAA misinterpreted or misapplied s 473DD of the Migration Act 1958 (Cth) in the manner contended – whether the IAA failed to consider claims or evidence – application dismissed

INDUSTRIAL LAW – FAIR WORK ACT – general protections court application – application for an extension of time – matters relevant to the discretion – extension of time granted

PRACTICE AND PROCEDURE – review of Registrar’s decision – where Registrar made declaration under s 176(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) that discovery is in the interests of the administration of justice – whether Registrar had delegated power to make a declaration – statutory interpretation – Registrar had been delegated power to make declaration –
hearing de novo – whether orders for discovery ought be made – whether discovery is appropriate, in the interests of the administration of justice – where the Court is satisfied discovery is in the interests of the administration of justice – declaration under s 176(2) and orders for discovery made – discovery order set aside for uncertainty – alternative discovery and other orders made – application for review of Registrar’s decision otherwise dismissed

INDUSTRIAL LAW – restaurant industry – application for relief in relation to alleged contraventions of general protections and various minimum entitlement, regular payment and payslip obligations under the Fair Work Act 2009 (Cth) – application for default judgment– where Respondent has not entered an appearance nor participated in proceedings despite being afforded numerous opportunities – declarations made and partial relief ordered on default.  

INDUSTRIAL LAW – restaurant industry – application for relief in relation to alleged contraventions of general protections and various minimum entitlement, regular payment and payslip obligations under the Fair Work Act 2009 (Cth) – application for default judgment– where Respondent has not entered an appearance nor participated in proceedings despite being afforded numerous opportunities – declarations made and partial relief ordered on default.  

INDUSTRIAL LAW – restaurant industry – application for relief in relation to alleged contraventions of general protections and various minimum entitlement, regular payment and payslip obligations under the Fair Work Act 2009 (Cth) – application for default judgment– where Respondent has not entered an appearance nor participated in proceedings despite being afforded numerous opportunities – declarations made and partial relief ordered on default. 

INDUSTRIAL LAW – Where in the primary judgment the court made declarations that there were three contraventions of civil penalty provisions of the Fair Work Act as to the non-payment of notice, redundancy pay and accrued and unused annual leave – Where the contraventions resulted from a lack of care rather than a deliberately flouting of legal obligations – Where the First Respondent took reasonably prompt corrective action – An order for a penalty of 7.5% of the maximum penalty for each contravention was appropriate to meet the objectives of specific and general deterrence 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal failed to consider evidence – whether Tribunal failed to consider claim - no jurisdictional error – application dismissed  

MIGRATION – Application for extension of time - where Minister opposed extension from commencement of hearing until filing of written submissions more than 6 years later - Whether Immigration Assessment Authority erred by failing to consider evidence, failing to seek information from applicant and/or failing to invite applicant to interview

MIGRATION – extension of time application to review a decision of the Administrative Appeals Tribunal – relevant considerations – extension of time refused.  

MIGRATION – Protection visa – application for extension of time for judicial review of decision of the Administrative Appeals Tribunal – where applicant had previously sought review of Tribunal’s decision – where applicant failed to disclose previous judicial review proceedings – failure to comply with s 486D – whether application incompetent – extension of time refused – application dismissed. 

MIGRATION – Judicial Review – Administrative Appeals Tribunal decision – citizen of Sri Lanka – refusal of protection visa – whether failure to analyse or consider issue of significant harm – whether final decision contrary to the evidence – whether failure to properly evaluate the evidence – whether too much weight given to prior Australian criminal record – whether failure to consider relevant legislative provisions – whether decision contrary to expectations of the Australian community and lawmakers – whether error in findings as to information provided to support claims made – whether error made as to accessibility of video material provided by the applicant – whether error made as to availability of police complaint from Sri Lanka – whether error made in assessment of credibility – whether unreasonableness in relying on findings concerning false documents in earlier  protection visa application by the applicant – whether error in relation to assessment of criteria concerning serious crime – obligations concerning consideration of a valid application for protection and  assessment of refugee and complementary protection criteria before considering any other criteria - whether jurisdictional error.  

PRACTICE AND PROCEDURE – Adjournment – adjournment of first Court hearing – unsuccessful in obtaining pro bono assistance – self-represented – applicant not appreciating the necessity to make submissions at hearing – no written submissions filed – no sensible or considered oral submissions  

WORDS AND PHRASES – “must”

PRACTICE AND PROCEDURE – Application for transfer of proceedings to the Federal Court of Australia  

PRACTICE AND PROCEDURE – Where updated contact details were made known to Court by solicitor for first respondent – address for service can only be changed by a method provided for in Court Rules

MIGRATION – Whether Immigration Assessment Authority ignored relevant material or acted illogically or unreasonably in fact finding – adjournment application refused 

MIGRATION – protection visa –application for review of Immigration Assessment Authority decision – where no jurisdictional error is established – application dismissed with costs  

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visas – whether Tribunal erred in failing to engage in further fact finding – whether Tribunal erred in rejecting applicants’ claim they faced real risk of sexual violence in Sri Lanka – whether Tribunal erred by not accepting DFAT risk assessment of violence against women in Sir Lanka – whether Tribunal denied applicant or witness procedural fairness by failing to raise with applicant or witness concern about independence of witness – application dismissed 

MIGRATION– Whether the Tribunal failed to consider a claim said to have been advanced on behalf of the applicant – whether any claim was clearly articulated – whether the Tribunal ought to have raised an unarticulated claim on behalf of the applicant – no jurisdictional error established – application dismissed.  

MIGRATION – Whether the Tribunal erred in finding that the applicant was not a genuine temporary entrant in Australia for the purpose of undertaking study – no jurisdictional error established – application dismissed. 

MIGRATION – Whether Tribunal failed to consider essential integer of applicant’s claims – whether Tribunal failed to consider or properly consider evidence – whether reasoning for not accepting applicant’s identity was illogical or irrational

MIGRATION – Where a nomination application was withdrawn – where the Department had accepted and acted upon the withdrawal - whether the Department or the Tribunal had power to re-instate a nomination application said to have been erroneously withdrawn – where there was no such power – no jurisdictional error established – application dismissed. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant partner visa – Tribunal not satisfied there were compelling reasons for not applying Schedule 3 criteria – no point of principle – application dismissed 

MIGRATION – Where applicant had previously been granted a Temporary Protection visa which had since lapsed – whether Tribunal erred by failing to consider the previous protection assessment in determining whether application was a refugee for the purposes of the Migration Act – whether Tribunal erred by failing to inform the applicant that it would not consider the original protection assessment or would depart from the approach of the delegate

MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – application of ss 486E and 486F – whether the IAA failed to correctly interpret the meaning of ‘receiving country’ – where Australia is the country of former habitual residence – whether the IAA failed to consider situation of a member of a family unit where no claims advanced – whether the IAA was legally unreasonable – whether the IAA failed to consider claims or evidence – whether IAA properly identified country information – no jurisdictional error established – application dismissed

MIGRATION - Whether Authority misapplied real chance test – whether Authority erred by finding improvement in security situation equated to absence of real chance of harm – whether Authority failed to consider material question of fact

BANKRUPTCY – administration of deceased bankrupt estate – substantial defrauding of now deceased bankrupt’s former employer by which property held on trust was obtained – property held on trust is not divisible amongst creditors – where Trustee and former employer sought orders that Trustee acting reasonably in sale and distribution of property in the estate and for Trustee to be paid remuneration – consideration of relevant factors in exercise of the discretion – orders made, substantially by consent, with creditors of the bankrupt estate granted liberty to apply.  

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether the Tribunal failed to comply with the requirements of s359AA of the Migration Act 1958 (Cth) - whether Tribunal erred in exercise of discretionary power to cancel visa – no jurisdictional error established – application dismissed 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant visitor visa – Tribunal not satisfied exceptional circumstances exist for grant of visa – whether jurisdictional error – no point of principle – application dismissed.  

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing Medical Treatment visa – whether Sch 2 cl 602.215 should be applied – whether applicant genuinely intended to stay temporarily in Australia – no jurisdictional error established – application dismissed.   

MIGRATION – judicial review – decision of Administrative Appeals Tribunal – dismissal for non-appearance – costs ordered.