Judgments

MIGRATION – PRACTICE AND PROCEDURE –Ex Tempore Reasons for Judgment – Application for adjournment of the interlocutory hearing – Application dismissed

INDUSTRIAL LAW – Fair Work Act 2009 – Professional Employees Award 2000 – adverse action – whether objection to participate in on-call roster a workplace right – coercion – undue influence – unreasonable work hours – accessorial liability. 

MIGRATION - JUDICIAL REVIEW – Protection visa – Whether Administrative Appeals Tribunal failed to consider or consider the extent of corroborating evidence – Whether strong credibility findings were open on the evidence or unreasonable 

MIGRATION - JUDICIAL REVIEW – Protection visa – Whether Administrative Appeals Tribunal failed to consider or consider the extent of corroborating evidence – Whether strong credibility findings were open on the evidence or unreasonable 

MIGRATION – Minister for Immigration – whether Minister erred at law – whether Minister biased – whether there was jurisdictional error. 

CHILD SUPPORT – Appeal on a question of law from a decision of the Administrative Appeals Tribunal – Whether special circumstances existed-  whether the administrative assessment of child support would result in an unjust and inequitable determination – whether departure order just and equitable - whether departure order otherwise proper - whether departure order can be made to cover a prospective 18 month period - whether departure order must be calculated by a mathematical formula – Application dismissed 

MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – whether jurisdictional error is made out – no jurisdictional error made out.  

MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority failed to apply the correct legal test – whether Authority failed to afford procedural fairness – no jurisdictional error – application dismissed. 

MIGRATION – applications for judicial review of decisions of Administrative Appeals Tribunal affirming decisions not to grant applicants Medical Treatment (Visitor) (Class UB) visas – whether Tribunal failed to apply relevant criteria – whether Tribunal took into account irrelevant considerations – no jurisdictional error – applications dismissed. 

MIGRATION – Administrative Appeals Tribunal – whether the Tribunal erred in its decision – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. 

MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicants protection visas – whether jurisdictional error in adverse credibility findings – assertion that witness was not permitted to give evidence before Tribunal – assertion that there were errors in interpretation before Tribunal – whether Tribunal failed to consider evidence – no jurisdictional error – application dismissed. 

MIGRATION – application for judicial review of decision of the Administrative Appeals Tribunal – where applicant claimed harm arising from criminal gangs in Malaysia – where Tribunal rejected applicant’s claims based on a lack of detail in his account of events – where Tribunal recorded alternative finding that based on country information the applicant could obtain adequate protection from authorities – no jurisdictional error in the decision of the Tribunal  –  application dismissed with costs

PRACTICE AND PROCEDURE – application for discovery of documents – whether discovery appropriate in the interests of the administration of justice – whether allowing discovery would be likely to contribute to the fair and expeditious conduct of the proceedings –  relevant factors – where documents sought to be discovered are voluminous – where discovery would not contribute to any narrowing of the issues – where available evidence suggests that the documents will not disclose relevant detail – application dismissed

MIGRATION - JUDICIAL REVIEW – Protection visa – Whether Administrative Appeals Tribunal failed to consider or consider the extent of corroborating evidence – Whether strong credibility findings were open on the evidence or unreasonable

INDUSTRIAL LAW – penalty hearing – contraventions of Fair Work Act 2009 (Cth) – where parties agree as to penalty within a specified range – determination of quantum of penalties to be paid to Commonwealth – penalty orders made 

INDUSTRIAL LAW – Failure to comply with a Compliance Notice – Second Respondent admits breach – agreed penalty range – pecuniary penalty imposed within agreed range. 

FAMILY LAW – Property – where there are concurrent related proceedings – application for transfer of proceedings to Division 1 – application for transfer declined  

ADMNISTRATIVE LAW – Application for costs in discontinued judicial review application brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth)

COSTS – discontinuance does not result in a “successful party” for the purposes of the general principle that costs follow the event

INDUSTRIAL LAW – alleged adverse action – letter concerning conduct -– family and carer’s responsibilities –illness – whether adverse action for prohibited reason - requirement to return of laptop – whether prejudicial alteration to position - whether coercion with respect to workers compensation claim - advertisement of position – alleged failure to consult over redundancy - dismissal on the basis of alleged redundancy. INDUSTRIAL LAW – redundancy payment – whether employer a small business employer with fewer than 15 employees – whether other companies were associated entities. INDUSTRIAL LAW – alleged failure to provide payslips – whether proof of alleged failure. INDUSTRIAL LAW – admitted failure to provide Fair Work Information Statement. INDUSTRIAL LAW – alleged breach of award – no award put into evidence.

MIGRATION – costs – cost sought in an amount above scale – relevant principles – fixed costs order made

MIGRATION – Administrative Appeals Tribunal – Migration Act 1958 (Cth) – applicant seeks juridical review – whether the Tribunal failed to give proper, genuine and realistic consideration to the applicant’s claims and/or acted in the legally unreasonable manner and/or irrationally and/or a logically in determining the applicant had decided not to attend a protection visa interview – whether the Tribunal failed to give proper, genuine and realistic consideration to the applicant’s claims and/or acted in the legally unreasonable manner and/or irrationally and/or logically in failing to make any findings as to the credibility of the supporting evidence provided by NGP and HAL – whether the Tribunal fell into jurisdictional error – the application is dismissed. 

MIGRATION LAW – Whether Authority failed to consider all elements of the applicant’s claims – whether the Authority’s findings were illogical – whether the Authority failed to understand and consider the contents of country information reports referred to by the applicant – no jurisdictional error established – application dismissed  

FAIR WORK – Penalty hearing – adjournment application – defaults by respondents – inappropriate communication with Chambers – penalty hearing adjourned. 

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of an application for an extension of time – 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).   

PRACTICE AND PROCEDURE – interlocutory application for an adjournment made by the applicant’s representative – application opposed – matter listed for hearing of an interlocutory application – application for adjournment granted.   

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to properly consider the first applicant’s complementary protection claims – jurisdictional error established – writs issued.   

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for a final 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).   

FAIR WORK - Whether employee or independent contractor – accessorial liability – unchallenged evidence of applicant –entitlements pursuant to modern award 

MIGRATION – Application for review of Registrar’s decision dismissing application for reinstatement –  onus for review of reinstatement application is borne by applicants

MIGRATION – Application for withdrawal of a filed Notice of Discontinuance not listed for hearing by the Registry – whether such application should be heard – matter listed for a directions hearing to enable the parties to make any relevant submissions.   

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal misconstrued or misapplied cl 802.211 of Schedule 2 to the Migration Regulations 1994 (Cth) – application dismissed 

INDUSTRIAL LAW – Failure by Respondent to comply with Compliance Notices issued by the Applicant – No contrition evident – non-compliance by Respondent with Court orders – non-engagement by Respondent in the Court proceedings – pecuniary penalty orders made accordingly.

MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant protection visa – whether Tribunal took into account irrelevant considerations or failed to take into account relevant considerations – no jurisdictional error – application dismissed. 

MIGRATION LAW - Administrative Appeals Tribunal affirmed delegate’s decision to cancel Subclass 572 Vocational Education and Training Sector visa – whether Tribunal considered Applicant’s claim that enrolment records should not be relied upon – whether the Tribunal breached procedural fairness obligations under s 359A and/or s 359AA of the Migration Act 1958 (Cth) – application dismissed – costs ordered 
 

MIGRATION– Whether the Immigration Assessment Authority erred in failing to consider whether new information was credible personal information – whether the Authority had made findings absent any factual foundation for them – whether the Authority failed to consider an integer of the applicants’ claims – whether the Authority ought to have interviewed the second applicant – no jurisdictional error established – application dismissed. 

MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority unreasonably failed to exercise its discretion in s 473DC of Migration Act 1958 (Cth) to invite applicant to attend an interview – whether Authority failed to accept relevant evidence – no jurisdictional error – application dismissed. 

MIGRATION – application for an extension of time in which to seek judicial review – where the applicant contends that a purported withdrawal of a visa application was invalid – whether there is a relevant “migration decision” – whether the Court has jurisdiction to determine the matter – application dismissed

MIGRATION – application for extension of time for judicial review of delegate’s decision not to grant applicants Business Skills (Provisional) (class EB) Business Innovation and Investment (Provisional) (subclass 188) visas – whether applicants have provided sufficient explanation for the delay – merits of proposed judicial review application asserting that  delegate took into account an irrelevant consideration and that decision was irrational or illogical – application for an extension of time dismissed. 

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal misconstrued or misapplied cl 802.211 of Schedule 2 to the Migration Regulations 1994 (Cth) – application dismissed 

MIGRATION – Whether finding that applicant could reasonably refrain from drinking alcohol on return to Iraq involved misapplication of s 5J(3) of the Migration Act 1958 – where no claim that drinking alcohol was fundamental to applicant’s identity or part of religious belief or practice of faith – whether claim to fear pious people arose on materials   

INTELLECTUAL PROPERTY – COPYRIGHT – children’s animated television programs – applicant asserts authorship of literary, dramatic and artistic works and cinematograph films for children’s animation series ‘Buster the Brave Little Wooden Boat’ and ‘Buster and Jack series’ – applicant claims infringement of copyright by respondent’s broadcast of its children’s animated television series ‘Bubble Bath Bay’ (also ‘Sydney Sailboat’) – common subject matter – characters are anthropomorphic boats, a bird and other animals, with adventures set in a harbour environment – applicant alleges infringement of whole or substantial part of her works and films – respondent denies copyright infringement – no objective similarity – asserts its television series independently created without copying – applicant has authorship, and ownership in some but not all claimed works and films – held no infringement – no objective similarity – no causal connection – ideas, concepts, themes only – held respondent’s television series ‘Bubble Bath Bay’ was independently created – applicant’s claim dismissed

MIGRATION – Application for review of delegate’s decision seeking waiver of condition 8503 – merits review

BANKRUPTCY LAW – Creditor’s Petition - Application for review of a sequestration order made by a Registrar – whether the Respondent was served with the bankruptcy notice – where the Respondent was served – review application dismissed

PRACTICE AND PROCEDURE – Application by respondents for leave to reopen – where application to reopen limited to tender of potentially relevant document – where parties’ evidentiary cases closed but final addresses not commenced and judgment not yet reserved – complex matter being reheard on remittal after previous lengthy trial and appeal – where applicant will be afforded opportunity to cross-examine on further evidence including as to provenance of document – principles relevant to discretion to allow reopening – interests of justice and finality of litigation considered – leave granted

MIGRATION – Regional Employer Nomination visas – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – where first applicant (and first applicant only) contacted the Court on short notice advising he no longer wanted to proceed with the hearing – where all applicants had left the country – where notice of discontinuance had been signed by only one applicant – application discontinued – appropriate costs amount to be awarded.  

MIGRATION – Temporary Business Entry visas – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – where first applicant (and first applicant only) contacted the Court on short notice advising he no longer wanted to proceed with the hearing – where no notice of discontinuance had been filed – application discontinued – costs awarded below set scale.

BANKRUPTCY – Application by trustee under s 146 of the Bankruptcy Act 1996 (Cth) for distribution of dividends in circumstances where no Statement of Affairs filed – factors relevant to the exercise of discretion – orders that the distribution of dividends proceed as if bankrupt had filed a Statement of Affairs as required by the Act – application granted subject to certain events occurring

HUMAN RIGHTS – Application to summarily dismiss claims made against a local council purportedly pursuant to ss 5, 6, 7, 11, 29, 30, and 32 of the Disability Discrimination Act 1992 (Cth) – (DD Act) – proceeding dismissed to the extent it relates to claims under those provisions – directions made for the filing of written submissions on whether conduct that amounts to victimisation within the meaning of s 42(2) of the DD Act constitutes “unlawful discrimination” within the meaning of s 3 of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) and, if not, whether the Court has jurisdiction under s 46PO(1) of the AHRC Act to hear the claims the applicants make purportedly on the basis of s 42 of the DD Act.

 MIGRATION – requirement that matter be heard by a different Judge after Presiding Judge viewed contents of confidential exhibit – order accordingly  

INDUSTRIAL LAW – Security for costs – need to consider application of s 570 of Fair Work Act 2009 (Cth) prior to assessing security application – where respondent relied exclusively on s 570(2)(b) – where applicant resident outside Australia