Judgments

PRACTICE AND PROCEDURE – costs – application by successful applicant for costs in excess of scale amount – whether sufficient reason and in interests of justice to order costs in excess of scale amount – whether evidence in affidavit in support of application for costs adequate or sufficient.

PRACTICE AND PROCEDURE – costs – application by unsuccessful party for costs thrown away by late service of amended application. 

MIGRATION – subclass 600 Visitor visa – Administrative Appeals Tribunal – three grounds of judicial review – whether the Tribunal failed to consider the applicant’s past applications – whether the Tribunal failed to consider documents submitted – third ground is a mere expression of dissatisfaction with the Tribunal’s decision – grounds of judicial review have no merit – application dismissed with costs. 

MIGRATION – Judicial Review – student visa refusal – whether Tribunal considered applicant’s claims – whether Tribunal misapplied relevant legislation – where applicable Ministerial Direction was revoked and replaced in the course of the Tribunal proceedings – whether Tribunal erred in failing to notify the applicant of the change in the applicable Ministerial Direction and request information pursuant to that Ministerial Direction before proceeding to a decision – no jurisdictional error established – application dismissed. 

MIGRATION – judicial review application – decision of Administrative Appeals Tribunal refusing to grant protection visa – where Tribunal found applicant to be not a credible witness – whether Tribunal erred in weight placed on medical report - no jurisdictional error established – application dismissed.

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

MIGRATION – judicial review application – decision of Administrative Appeals Tribunal refusing to grant protection visa - whether the Tribunal erred in adequately assessing the applicant’s well-founded fear of persecution due to link to  ‘particular social group’  - whether the Tribunal misconstrued or misapplied s 36(2)(aa) – whether the Tribunal failed to afford the applicant procedural fairness - no jurisdictional error established – application dismissed. 

MIGRATION – Extension of time – principles – no explanation for delay – no arguable case of error – extension refused.

MIGRATION – Judicial Review – protection visa – whether Tribunal failed to correctly apply the ‘real chance’ test in s 5J of the Migration Act 1958 (Cth) – whether Tribunal failed to consider a claim or an integer of a claim – whether Tribunal’s decision was legally unreasonable – allegations of mischaracterisation of the applicant’s evidence and misuse of country information – no jurisdictional error established – application dismissed.

MIGRATION – Extension of time in which bring proceeding – declined as no arguable ground of review and no adequate explanation for the delay.

MIGRATION – Power of Tribunal to adjourn – Tribunal adjourns future hearing as Tribunal member unavailable due to circumstances beyond control – short adjournment of six weeks – by time of adjourned hearing applicant had turned 23 and faced a new visa condition she could not satisfy – wide discretion to adjourn – intelligible and evident justification – no jurisdictional error – application dismissed.

COSTS – Fair work application – alleged contravention of a general protection – application unsuccessful – whether no reasonable cause of action – whether repleading of accessorial liability during hearing an unreasonable act or consequent upon an unreasonable omission causing other party to incur costs. 

INDUSTRIAL LAW – Alleged contravention of a general protection repleading of accessorial liability during hearing – respondents’ reasons for termination believed – application unsuccessful.

PRACTICE AND PROCEDURE – DISMISSAL OF PROCEEDING BECAUSE THE APPLICANT IS IN DEFAULT – Whether the applicant is in default under r. 5.08 of the court order because her Third Statement of Claim does not comply with the rules and, if so, whether the court should exercise its discretion to dismiss the proceeding under r. 5.10 – Where the Applicant has commenced a general protection proceeding under the Fair Work Act 2009 – Where the court had by a previous decision struck out the Applicant’s statement of claim and provided an opportunity for the Applicant to replead – Where the Applicant’s repleaded statement of claim, her Third SOC, did not conform with the rules – Factors relevant to the exercise of the discretion to dismiss the proceeding when the Applicant is in default – Where there was a history of non-compliance – Where the non-compliance is continuing – Where the Applicant was self-represented – Order made dismissing the proceeding. 

INDUSTRIAL LAW – CIVIL PENALTY – Contravention of s. 44 of the Fair Work Act 2009 by the Respondent’s failure to give the Applicant notice of termination of his employment or a payment in lieu of notice in accordance with s. 117(2) of the Act – Consequential order for interest under s. 547(2) of the Act – An order for a penalty of $16,500 appropriate to meet the objects of specific and general deterrence – Orders made.    

FAIR WORK –– determination of pecuniary penalty –– failure to comply with compliance notice –– contravening conduct occurred over period during which different maximum penalty amounts applicable –– what penalty is necessary to effect deterrence where contravening party failed to appear or provide any explanation of contravening conduct.

INDUSTRIAL LAW – general protections – whether the applicant had a workplace right – whether the applicant exercised a workplace right – whether adverse actions was taken because the applicant exercised a workplace right – whether the exercise of workplace rights by the Applicant was a substantial and operative reason for dismissal – whether the respondent failed to discharge the reverse onus in s 361 of the Fair Work Act (Cth) – reverse onus engaged – declarations made. 

MIGRATION - Safe Haven Enterprise (Class XE) (subclass 790) – Application for judicial review – Whether the Authority failed to consider a necessary and relevant consideration – Whether illogical and unreasonable to reject evidence as unreliable or fabricated – Whether illogical, irrational or unreasonable to determine that such evidence undermined credibility – No jurisdictional error – Application dismissed. 

MIGRATION LAW – Application for judicial review of the tribunal – Medical Treatment Visitor Class UB Visa application – Applicant not 50 years of age – whether applicant genuinely intended to remain in Australia on a temporary basis – not gravely ill or receiving intensive or critical care – application dismissed.

MIGRATION – Student (Subclass 573) visa - Application for judicial review – Non-attendance of applicant – Application dismissed pursuant to rr 5.08, 5.10 and 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) – Costs ordered. 

MIGRATION – Whether decisions of Tribunal following non-appearance of respective applicants was stultified by third party fraud in dissuading them from attendance – where advice came from intermediary and was at most negligent or incompetent – whether Tribunal failed to consider claims or integers of claims and made unreasonable decisions.

MIGRATION – application for student visa – where applicant had two previous student visas – where applicant had suffered an injury which took a year to recover – where applicant had not completed post-graduate courses of study and had a period of several months during which he undertook no study – where applicant enrolled in registered course of study on day of Tribunal hearing – where Tribunal determined applicant did not satisfy cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) – whether Tribunal erred by considering factors beyond applicant’s control – whether Tribunal erred by expecting applicant to have made job applications prior to completing his studies – no jurisdictional error identified – application dismissed with costs.

MIGRATION – application for review of Registrar’s decision – where Registrar dismissed application for judicial review after applicant failed to appear at a callover listing – where applicant applied for reinstatement of application for judicial review – where Registrar dismissed application for reinstatement – application for review dismissed with costs. 

MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.   

MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – whether Authority entitled to rely on findings made during refugee assessment in considering complementary protection criterion – whether applicant made claim not considered by Authority – whether applicant abandoned claim – whether Authority failed to consider claim – application dismissed.

MIGRATION – student visa - decision of Administrative Appeals Tribunal - whether procedural fairness was afforded – where incompetence of agent alleged but no record of agent - whether it was open for the Tribunal to make a decision without a hearing rather than adjourn – whether the Tribunal applied the law correctly – no jurisdictional error – application dismissed.

MIGRATION – Costs – Application for costs sought above the scale following a final hearing – Fixed costs order made.

MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa - Application for extension of time to seek judicial review – Application dismissed due to non-appearance by applicant pursuant to rr 5.08(c), 5.10(a) and 22.04(1)(a)(i).

MIGRATION – Judicial review of Administrative Appeals Tribunal’s decision to confirm the decision to dismiss the application to the Tribunal after the applicant failed to appear at the hearing and failed to apply for reinstatement of the application within the prescribed period – Dismissal for non-appearance at the hearing before the Court. 

MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – whether Authority failed to consider whether it could consider new information – whether Secretary failed to provide audio recording of interview to Authority in breach of s 473CB – whether Authority failed to consider applicant’s claims cumulatively. 

FAIR WORK – dismissal in alleged contravention of ss.340, 351 and 352 of the Fair Work Act 2009 (Cth) – where applicant was underperforming, intermittently took personal leave for undiagnosed illness, complained about a directive to perform work in the office and was summarily dismissed – where adverse action and exercise of workplace rights established – consideration of evidence as to the actuating reasons for the dismissal – HELD that the first respondent contravened s.340 of the Act and the second respondent was involved within the meaning of s.550.

UNDERPAYMENT AND BREACH OF CONTRACT – dismissal without notice in alleged breach of contract and contravention of ss.44 and 117(2) – where serious misconduct not apt – finding of contractual breach, contravention and involvement within meaning of s.550 of the Act.

INDUSTRIAL LAW – general protections – whether the applicant had a workplace right – whether the applicant exercised a workplace right – whether adverse actions was taken because the applicant exercised a workplace right – whether the exercise of workplace rights by the Applicant was a substantial and operative reason for dismissal – whether the respondent failed to discharge the reverse onus in s 361 of the Fair Work Act (Cth) – reverse onus engaged – declarations made. 

MIGRATION – Judicial review – Safe Haven Enterprise (Class XE) (subclass 970) visa – Whether findings by the Immigration Assessment Authority were legally unreasonable, irrational or illogical – Whether the Immigration Assessment Authority erred when it did not get, or consider getting, new information pursuant to s 473DC of the Migration Act 1958 (Cth) concerning the applicant’s claims – No jurisdictional error established – Application dismissed.

MIGRATION – Judicial review – Protection (Class XA) visa – Whether the Tribunal failed to take further steps to notify the applicant of the hearing date before the Tribunal once it was aware the applicant’s migration agent was no longer registered as a migration agent – Whether the applicant’s visa application was invalid by reason of fraud allegedly perpetrated by the applicant’s migration agent in including claims in the protection visa application without the applicant’s knowledge or instructions – Whether the Tribunal’s processes were stultified by reason of fraud allegedly perpetrated by the applicant’s migration agent in allegedly failing to notify the applicant as to the hearing date or that the applicant could apply for reinstatement after the dismissal of the proceedings – no fraud established by the applicant – Application dismissed.

MIGRATION – decision of Administrative Appeals Tribunal – where applicant applied out of time for Tribunal review – where applicant has provided multiple email addresses to the Tribunal – whether the applicant was taken to have been notified of the delegate’s decision under s 494B(5) of the Migration Act 1958 (Cth) – meaning of “provided to the Minister” for the purposes of receiving documents – whether a contact address may be provided for multiple purposes – application dismissed.

MIGRATION –-Interlocutory Application for extension of time to apply for judicial review – Refusal to grant waiver of ‘no further stay’ condition on Student Guardian (Class TU) (Subclass 590) visa – Short delay -No jurisdictional error identified – No reasonable prospects of success -Application for extension of time dismissed. 

MIGRATION – costs – judicial review application dismissed – application for costs – fixed costs order made – applicant to pay the first respondent’s costs.

MIGRATION – Judicial review – Application to review decision of the Administrative Appeals Tribunal (‘Tribunal’) – whether Tribunal erred by engaging in irrational and illogical reasoning in finding that the Applicant was not homosexual – whether the Tribunal failed to have regard to the evidence before it – HELD application for judicial review dismissed.

MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – Authority found there was real risk applicant would suffer significant harm if required to return to Nasiriyah, but it was reasonable for applicant to relocate to Wasit governorate – whether Authority erred in finding it was reasonable for applicant to relocate to Wasit governorate – whether no evidence to support finding that applicant could stay with relative in Wasit governorate who would vouch for him – whether probative basis for finding – application dismissed.

MIGRATION– application for judicial review of a decision of the Administrative Appeals Tribunal to not grant partner visa – matter had been remitted with the direction that the Applicant met the schedule 3 criteria – whether sponsor and applicant were in a genuine relationship at the time of the decision.

MIGRATION– application for review of a Registrar’s decision to summarily dismiss judicial review application – Student visa application – where the Applicant did not have a current certificate of enrolment – consent for the application to be heard on the papers – no jurisdictional error established by the applicant – where it is a binary decision whether the Applicant was enrolled in a registered course of study – no reasonable prospects of success established.

MIGRATION - Student (Temporary) (Subclass 573) visa - Application for judicial review –– Writ of mandamus not sought by applicant –Visa cancelled by delegate as applicant not enrolled in a registered course of study – Applicant conceded not enrolled in a registered course of study - Whether Tribunal unreasonable in denying adjournment request to obtain medical evidence – No adjournment request actually made - Where alleged fraud by agent – No evidence of agent retained by applicant - Medical evidence not produced by applicant – No jurisdictional error by Tribunal - Application dismissed.

BANKRUPTCY – application for an extension of time to review a sequestration order made by a registrar – no substantive merit in grounds of opposition to creditor’s petition – extension of time application dismissed – application for annulment of respondents’ bankruptcies pursuant to s 153B of the Bankruptcy Act – consideration of principles and claims – res judicata – issue estoppel – Anshun estoppel – abuse of process – not satisfied appropriate to look behind judgment – service of bankruptcy notice disputed – discretion to annul bankruptcies does not arise – annulment application dismissed.  

PRACTICE AND PROCEDURE – application for leave to re-open application – consideration of exhibits after reservation of judgment – discretion exercised – found necessary in interests of justice to re-open application. 

BANKRUPTCY – creditor’s petition application – consideration of validity of bankruptcy notice – whether filing confirmation and default judgment are a final judgment – satisfied with formal proofs required – matter referred to a registrar for hearing of creditor’s petition.  

PRACTICE AND PROCEDURE – application for separate question to be heard pursuant to r 22.01 of the Rules – allowed – separate question answered. 

MIGRATION – application for judicial review – decision of the Administrative Appeals Tribunal affirming decision not to grant Protection (subclass 866) visa – whether Tribunal failed to consider evidence – whether Tribunal erred in making adverse credibility findings – no jurisdictional error established – application dismissed.

MIGRATION – Ex tempore – Protection (subclass 866) visa –judicial review – application for the review of a Registrar's decision – applicant was properly invited to hearing and failed to attend – failed to apply for reinstatement – no real or genuine dispute that might reasonably be resolved in an applicant’s favour – application dismissed.

MIGRATION – costs – application for above scale costs – where a further hearing date and additional submissions were required due to the late articulation of the applicant’s case – fixed costs order made.

PRACTICE AND PROCEDURE – application for leave to file amended statement of claim – paragraph deals with multiple matters rather than separate matters – part of pleading does not state all material facts on which applicant relies – whether pleading omits element of cause of action for restitution – whether applicant should be granted leave to file revised amended statement of claim.

PRACTICE AND PROCEDURE – application to set aside subpoena – whether documents sought in each paragraph of subpoena have legitimate forensic purpose – whether subpoena involves attempt to obtain discovery. 

MIGRATION – Judicial Review – protection visa – credibility assessment – whether Tribunal failed to consider evidence – whether Tribunal failed to properly inquire – whether Tribunal’s approach discloses bias or apprehended bias – whether Tribunal Member’s reliance on personal experience or knowledge discloses error – no jurisdictional error established – application dismissed.

MIGRATION – judicial review – Student (Temporary) (Class TU) visa – genuine temporary entrant criterion in cl 500.212 of the Migration Regulations 1994 (Cth) – whether the Tribunal failed to comply with the statutory obligations under s 359AA of the Migration Act 1958 (Cth) – whether the Tribunal took an adversarial and not an inquisitorial role in the proceedings – whether the Tribunal failed to consider the applicants’ substantial claims – whether the Tribunal was illogical and irrational and misinterpreted and misapplied cl 500.212 of the Regulations – no jurisdictional error established – application dismissed.

INDUSTRIAL LAW – PENALTY – two contraventions of the Fair Work Act 1975 (Cth) – breach of section 45 of the Act by failing to pay the applicant under clause 11.5 of the Hospitality Industry (General) Award 2020 – breach of section 536 of the Act by failing to provide a payslip to the applicant with the required information within the required time frame – where the applicant contends that pecuniary penalties are necessary – finding that the breaches occurred due to honest and reasonable oversights – no pecuniary penalty imposed. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – Tribunal satisfied there was evidence applicant gave bogus document to Department in relation to visa application – Tribunal reasonably suspected bank statement showing funds in account was counterfeit – whether error by Tribunal in finding that it “reasonably suspects” document was counterfeit – Tribunal relied on investigative report – whether Tribunal’s reliance on investigative report was unreasonable – Tribunal accepted bank statement was issued by bank – whether bank statement issued by bank could be counterfeit – application dismissed.