Judgments

MIGRATION – Administrative Appeals Tribunal - Visitor (Class FA) visa (subclass 600) refusal– Where Tribunal found the visa applicant would not stay temporarily in Australia due to the economic conditions in Lebanon – Whether Tribunal asked itself the wrong question – Whether the tribunal failed to take into account a relevant consideration – Error of the kind identified in Khanam – Application upheld

MIGRATION –Judicial review – decision of Administrative Appeals Tribunal – protection (class XA) (subclass 866) visa – whether Tribunal’s findings unreasonable – invalid certificate – whether denial of procedural fairness – no jurisdictional error established – application dismissed

MIGRATION — Judicial review — protection visa — non appearance of applicant — default judgment — leave for notice of discontinuance refused — application dismissed

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether applicant denied procedural fairness – whether Tribunal’s reasoning process was illogical and unreasonable - no jurisdictional error established – application dismissed.

MIGRATION – extension of time – seven days out of time – protection visa – inadequate explanation for delay – no reasonably arguable case for jurisdictional error – application dismissed.

MIGRATION – Protection (subclass 866) visa – Application for review of Registrar’s decision – Extension of time of four days required – Where Registrar dismissed the application for judicial review for non-appearance and then dismissed an application for reinstatement – Where the judicial review grounds have no reasonable prospects of success – Application for extension of time refused – Application for review of Registrar’s decision refused – Order for costs

INDUSTRIAL LAW – Adverse action – application to strike out statement of claim – where statement of claim clearly deficient – orders made to strike out statement of claim and permit the Applicant to replead, or set out her claims in an alternative form.

BANKRUPTCY – Creditor’s Petition for a sequestration order - Applicant holds multiple costs orders against Respondent – Respondent alleges he is a whistleblower and should have never had a judgment made against him – Respondent alleges he does not owe the costs debt in question – whether there is other sufficient cause to apply court’s discretion to not make sequestration order- Respondent alleges he has multiple ongoing claims against Applicant in other courts for an equivalent and/or greater amount than the debts claimed against him – Respondent alleges Applicant pursuing sequestration order with intent of securing object other than recovering a debt – namely to stifle ongoing claims in other courts – whether issuance of bankruptcy notice amounts to an abuse of process

MIGRATION – Whether student visa applicant was genuine temporary entrant

MIGRATION – Student visa – Application for judicial review – Where applicants failed to attend scheduled hearing – Application dismissed.

MIGRATION – work skilled (subclass 457) visa – visa refused – first applicant in breach of cl 457.223 of sch 2 to the Migration Regulations 1994 (Cth) as she was not the subject to an approved nomination with a prospective employer – decision of the former Administrative Appeals Tribunal (Tribunal) to affirm the delegate’s decision – judicial review – whether the applicants were appropriately notified of the changes to the subclass 457 visa scheme – whether the applicants received the Tribunal’s correspondence to comment on the changes to the subclass 457 visa scheme – whether the applicants were given sufficient time to procure a nomination approval – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed

MIGRATION – Protection (Subclass 866) visa - Application for judicial review – Where applicant failed to attend scheduled hearing – Application dismissed.

MIGRATION – judicial review – protection visa –whether Tribunal failed to inquire – whether inquiry obvious – whether inquiry would have gleaned information that could have led to a different outcome – no jurisdictional error established – application dismissed.

MIGRATION – Judicial review – decision of the Immigration Assessment Authority – citizen of Pakistan – Pashtun Shi’a Muslim of the Turi tribe – whether failure to take into account relevant and cogent country information – whether findings legally unreasonable – whether unreasonable failure to consider matters raised – whether finding concerning applicant’s ability and willingness to travel and associated conclusion regarding risk of harm was made without evidence or was legally unreasonable – whether failure to consider claim concerning fear of harm whilst travelling and whether fear of harm was well – founded – whether material jurisdictional error

MIGRATION – Where there was a delay of 136 days in filing an application for review of the decision of the Tribunal – where there was no reasonable explanation provided in any affidavit for the delay – where the substantive grounds of review lacked merit and were not arguable – no jurisdictional error established – application dismissed.

MIGRATION – Judicial review application – decision of Immigration Assessment Authority – affirmation of refusal to grant Safe Haven Enterprise visa – citizen of Sri Lanka of Tamil ethnicity – family support for the Liberation Tigers of Tamil Eelam – personal assistance to the Tamil National Alliance in parliamentary elections – alleged threats to and abduction by paramilitary groups – single unparticularised ground of review – further grounds raised orally at hearing – whether failure to understand threats and risks of harm from paramilitary groups – whether failure to consider evidence of political activity in correspondence from local officials – where correspondence not provided in translated form – whether treatment available in Sri Lanka for mental health conditions and following liver transplant – whether failure to understand medical treatment needs and available services following liver transplant – whether failure to understand mental health needs – whether jurisdictional error.

 MIGRATION – reasons for judgment delivered ex tempore – application for extension of time –  where substantive application seeks judicial review of a decision of the Administrative Appeals Tribunal to affirm a delegate’s decision not to grant a protection visa –  application is dismissed with costs.

MIGRATION – Judicial review – review of decision of the Immigration Assessment Authority – whether unreasonable failure to exercise power to invite applicant for interview – where different findings less favourable to applicant made by the Immigration Assessment Authority – where Minister’s delegate had benefit of observing applicant’s demeanour – whether reasoning in relation to credibility irrational or illogical – whether reasoning in relation to credibility unreasonable – whether credibility reasoning made by reference to a false factual premise – whether material jurisdictional error

PRACTICE AND PROCEDURE – Application for leave to institute proceedings following vexatious litigant orders - – proposed proceedings dismissed

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – no jurisdictional error established – application dismissed.

HUMAN RIGHTS – where the applicant’s claim was dismissed – where costs usually follow the event – where amendments to legislation limiting the circumstances in which costs orders might be made in a proceeding commenced under the provisions of the Australian Human Rights Commission Act had no bearing upon the making of costs orders in the current proceeding – where the usual costs order was made.

PRACTICE AND PROCEDURE – Application for leave to institute fresh proceedings following vexatious litigant orders-application dismissed

MIGRATION - judicial review – extension of time application – merits of underlying application - extension of time refused – costs ordered.

FAIR WORK – Compliance Notice

FAIR WORK – Reasonable belief – Section 716(1)(a) – Whether the Inspector reasonably believed that the employer had contravened terms of a modern award – Where the Compliance Notice did not specify each and every contravention but “roved” across a date range throughout a relevant period – Where the court held that employer’s system of conduct in paying a flat rate less than prescribed Award minimums was sufficient grounds for the Inspector’s reasonable belief that the contraventions occurred throughout the relevant period

FAIR WORK – Review of the Compliance Notice –Section 717(1)(a) – Whether the employer had not committed a contravention set out in the Notice because the modern award, the Social, Community, Home Care And Disability Services Industry Award 2010 did not apply to it – Where held that a community language school was an employer in the social and community services sector and the Award applied to it

FAIR WORK – Section 717(1)(b) – Whether the Notice set out “specified action to remedy the direct effects of the contravention” under s. 716(2)(a) – Whether the Notice set out “brief details” of the contravention under s. 716(3)(c) –Held Notice complied with ss. 716(2)(a) and 716(3)(c) –Where the court found that the First Respondent failed to comply with the notice under s. 716(5)

FAIR WORK – Accessorial liability – Where under s. 716(2)(a) the Inspector may require a person to take specified action “within such reasonable time as is specified in the notice” –  Where an officer of the FWO made an express representation that the First Respondent should not make payments at the time specified in the notice – Where the failure to comply with the Contravention Notice was a continuing contravention – Where the Second Respondent was an intentional participant in the contravention

FAIR WORK – Reasonable belief – Section 716(1)(a) – Whether the Inspector reasonably believed that the employer had contravened terms of a modern award – Where the Compliance Notice did not specify each and every contravention but “roved” across a date range throughout a relevant period – Where the court held that employer’s system of conduct in paying a flat rate less than prescribed Award minimums was sufficient grounds for the Inspector’s reasonable belief that the contraventions occurred throughout the relevant period

FAIR WORK – Review of the Compliance Notice –Section 717(1)(a) – Whether the employer had not committed a contravention set out in the Notice because the modern award, the Social, Community, Home Care And Disability Services Industry Award 2010 did not apply to it – Where held that a community language school was an employer in the social and community services sector and the Award applied to it

FAIR WORK – Section 717(1)(b) – Whether the Notice set out “specified action to remedy the direct effects of the contravention” under s. 716(2)(a) – Whether the Notice set out “brief details” of the contravention under s. 716(3)(c) –Held Notice complied with ss. 716(2)(a) and 716(3)(c) –Where the court found that the First Respondent failed to comply with the notice under s. 716(5)

FAIR WORK – Accessorial liability – Where under s. 716(2)(a) the Inspector may require a person to take specified action “within such reasonable time as is specified in the notice” –  Where an officer of the FWO made an express representation that the First Respondent should not make payments at the time specified in the notice – Where the failure to comply with the Contravention Notice was a continuing contravention – Where the Second Respondent was an intentional participant in the contravention

MIGRATION– application for review of registrar’s decision – extension of time of 17 days required – where Registrar dismissed the application for judicial review for nonappearance and then dismissed an application for reinstatement – Tribunal found no jurisdiction to review refusal of Business Innovation And Investment (Provisional) (Extension) (Subclass 188) visa – delay and lack of prospects of success of reinstatement application do not warrant an extension of time

MIGRATION – Protection visa – Application for judicial review – Whether Tribunal failed to consider relevant country information assessment – Identified error - Whether a material jurisdictional error – Review allowed – Writs issued.

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal to not grant a protection visa – fear of harm as Berish member and from Malaysian authorities – lack of particulars – grounds of review not made out – application dismissed with costs

MIGRATION– extension of time application – applicant filed 371 days out of time – insufficient explanation as to delay – unparticularised grounds – lack of merit in substantive application – extension of time not granted – costs ordered

MIGRATION – Protection visa – Application for judicial review – Whether Tribunal failed to identify country information – Whether findings supported by evidence – Outcome consistent with evidence – Application dismissed.

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL – application to extend time to file the application – delay of 4 days – where the applicant’s oral application to adjourn the hearing due to unwellness not allowed – where the applicant failed to comply with orders to give further evidence and submissions after the hearing – where there is an insufficient explanation for the delay – where the proposed grounds of review lack merit – application for extension of time refused – application dismissed

MIGRATION – judicial review of Administrative Appeals Tribunal decision – student visa – no jurisdictional error established – application dismissed.

MIGRATION – Whether Tribunal erred by misconstruing the term ‘exceptional reasons’ – where applicant twice foreshadowed discontinuance of proceedings and sought multiple adjournments

MIGRATION – jurisdiction of the court to deal with a claim for damages for false imprisonment – original proceeding being an application for habeas corpus.

MIGRATION – student (subclass 500) visa – decision of the (then) Administrative Appeals Tribunal – no appearance by or on behalf of the applicant – oral application to dismiss pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – application dismissed with costs

MIGRATION– application for judicial review of a decision of the Administrative Appeals Tribunal to cancel a Student (Temporary) (Class TU) Higher Education Sector subclass 573 visa – whether the Tribunal considered the applicant’s circumstances and gave weight in accordance with law – application dismissed with costs

MIGRATION – judicial review – cancellation of Subclass (Student) visa under s 116 of the Migration Act 1958 (Cth) for breach of a visa condition – whether the Tribunal in exercising its discretion whether to cancel the visa failed to consider relevant matters and took into account irrelevant matters – no jurisdictional error disclosed – application dismissed

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal’s assessment of applicant’s credibility was legally unreasonable or overlooked effect of lapse of time on memory and recollection and applicant’s psychological and mental health conditions – whether Tribunal’s refusal to call witness was unreasonable – no jurisdictional error established – application dismissed.

INDUSTRIAL LAW – ADVERSE ACTION – where the applicant claims that the respondent breached sections 340 and 351 of the Fair Work Act 2009 (Cth) in terminating his employment – consideration of whether the respondent terminated the applicant’s employment for, or for reasons which included him exercising a workplace right – consideration of whether the respondent terminated the applicant’s employment for reason of any disability of applicant’s, actual or imputed – finding that there was no breach of sections 340 or 351 in the circumstances – application dismissed.

MIGRATION – Judicial review – applicant alleges failure by the Immigration Assessment Authority to consider relevant considerations – applicant alleges reasoning of the Authority is unreasonable – no error identified – Application dismissed.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether applicant was included as member of family unit of partner’s student visa application - no jurisdictional error established – application dismissed.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether error in Tribunal’s finding that applicant not credible – whether open to Tribunal to rely on omission in answer given by applicant at hearing as a reason in support of adverse credibility finding – no jurisdictional error established – application dismissed

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing temporary graduate visa – whether Trades Recognition Australia validly appointed as relevant assessing authority – meaning of ‘body’ - no jurisdictional error established – application dismissed.

MIGRATION - judicial review – decision of Administrative Appeals Tribunal – Partner (Temporary) (Class UK) subclass 820 visa – meaning of phrase “has developed close business, cultural or personal ties in Australia” – Tribunal found that applicant’s ties with sponsor’s family did not constitute development of close personal ties – whether finding legally unreasonable – no jurisdictional error established – application dismissed

MIGRATION – Student visa – Impermissible merits review – Unparticularised grounds – Application dismissed

MIGRATION – judicial review – Protection visa refusal – credibility – whether Tribunal biased in the making of its decision – whether Tribunal failed to make an inquiry to verify a claim – no jurisdictional error established – application dismissed.

MIGRATION – judicial review – protection visa –whether Tribunal failed to inquire – whether inquiry obvious – whether inquiry would have gleaned information that could have led to a different outcome –  no jurisdictional error established – application dismissed.

MIGRATION – Judicial review – whether Administrative Appeals Tribunal (‘Tribunal’) misconstrued section 36(2)(aa) and section 36(2B)(b) of the Migration Act 1958 (Cth) – whether Tribunal wrongly treated section 36(2B)(b) as a ‘carve out’ from section 36(2)(aa), contrary to the principles in Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 – whether Tribunal erred by focusing on a system of protection rather than the ability of the individual to avail himself of protection – no error established – application dismissed.

MIGRATION – Temporary Business Entry (Skilled) (subclass 457) visa – Where the primary applicant’s application was tied to the approval of her sponsor’s nomination of an occupation in relation to her – Where another Tribunal had refused to approve her sponsor’s nomination – Where because her sponsor’s nomination was not approved the primary applicant could not meet the mandatory criteria for the grant of the visa and the only available decision for the Tribunal was to refuse to grant the visa – Where because the primary applicant was refused the visa as a necessary consequence her family unit was not granted visas – Application dismissed

MIGRATION – Student visa – Where application listed both for an extension of time hearing and if the time was extended a final hearing – Where the First Respondent consented to an extension of time – Whether the notification of the decision of a delegate to the Applicant stated the time in which the application for review to the Tribunal may be made in accordance with s. 66(2)(d)(ii) of the Migration Act 1958 (Cth) – Held the notification to the Applicant was complete and clear in compliance with the statute – No jurisdictional error – Application dismissed

MIGRATION – Cancellation of a Temporary Work (Skilled) (Class UC) (Subclass 457) visa – decision of the then Administrative Appeals Tribunal – matter listed for a final hearing by video link – applicant offshore – 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).