Judgments

MIGRATION LAW – ex tempore reasons –  application for interlocutory injunction to restrain the Minister from removing the applicant from Australia – prima facie case not established – balance of convenience not in favour of Applicant – Application dismissed with costs   

MIGRATION – Application for Student (Temporary) (Class TU) visa – Review of Administrative Appeals Tribunal (“Tribunal”) decision – Allegation that the Tribunal’s decision was affected by jurisdictional error – Allegation that the Tribunal erred in determining that the applicant was not a genuine temporary entrant – Allegation that the Tribunal’s decision lacked clarity – Application dismissed. 

MIGRATION – Decision of Administrative Appeals Tribunal to refuse student visa – bias – failure to consider evidence – failure to intellectually engage - procedural fairness 

MIGRATION LAW – Where the applicant failed to place evidence in support of his claims before the Tribunal when it was his obligation to do so – where the applicant’s Grounds of Review lacked particularity and were meaningless – where the applicant was in default of Court orders at the time of the hearing before the Court – no jurisdictional error established – application dismissed. 

MIGRATION – Application for judicial review– Matter listed for a final hearing – No appearance by or on behalf of the applicant – Application dismissed for non-appearance –Order for costs. 

CHILD SUPPORT – Amended Notice of Appeal dismissed – increase in child support payment – applicant pay first respondent’s costs  

MIGRATION – Safe haven enterprise (class XE) (subclass 790) visa – review of decision of the Immigration Assessment Authority (Authority) – judicial review – where Authority affirmed decision refusing applicant a visa – where Authority did not exercise discretion under s 473DC of the Migration Act 1958 (Cth) to obtain ‘new information’ – information gap – whether failure to exercise s 473DC discretion was unreasonable – whether Authority failed to consider relevant material – Authority overlooked relevant information – failure to exercise discretion legally unreasonable – Authority’s decision attended by jurisdictional error – writ of certiorari issued – writ of mandamus issued 

MIGRATION – Distinguished talent (Residence) (class BX) (subclass 858) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – judicial review – application for extension of time – merit of proposed application – where Tribunal determined it had no jurisdiction to hear review application pursuant to s 348 of the Migration Act 1958 (Cth) – whether application ‘properly made’ – application form contained credit card details to facilitate payment of application fee – where Tribunal’s attempts to process application fee failed – where payment successful after prescribed period elapsed – whether application ‘accompanied by’ prescribed fee – meaning of ‘accompanied by’ – whether fee was ‘paid’ – whether Tribunal erred in finding application not properly made – application for extension of time refused  

MIGRATION – Protection (class XA) (subclass 866) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – extension of time – where there is no acceptable explanation for the delay – where there is no arguable case of jurisdictional error – not satisfied that it is in the interests of administration of justice to grant an extension of time – application to extend the 35-day period is dismissed

MIGRATION – Application for a Student (Temporary) (Class TU) visa – Review of Administrative Appeals Tribunal (“Tribunal”) decision – Allegation that the Tribunal’s decision was affected by jurisdictional error – Where the application was found not to be a genuine temporary entrant – Application dismissed 

MIGRATION – Safe haven enterprise (subclass 790) visa – judicial review – decision of the former Immigration Assessment Authority (IAA) – where IAA affirmed decision of delegate of the first respondent refusing the applicant a visa – whether IAA’s decision attended by jurisdictional error – IAA’s decision not attended by jurisdictional error – application for judicial review dismissed 

MIGRATION – Application for a Student (Temporary) (Class TU) visa – Review of Administrative Appeals Tribunal (“Tribunal”) decision – Allegation that the Tribunal’s decision was affected by jurisdictional error – Where the applicant alleges that the Tribunal did not place significant weight on certain key facts – Where the applicant was found not to be a genuine temporary entrant – Application dismissed 

PRACTICE AND PROCEDURE – Application in a proceeding – application for a further amended statement of claim – pleads alleged misleading and deceptive conduct under Australian Consumer Law– need for precision – whether pleading confusing or embarrassing – whether pleading reveals a reasonable cause of action – pleading accessorial liability – whether the amended statement of claim should be accepted – whether leave to replead paragraphs struck out – matters to be considered 

INDUSTRIAL LAW – FAIR WORK – penalty hearing – failure to pay entitlements to employees – liability determined – first time offender – respondent remedied mistake before proceedings took place – calculation of penalty – matters to be considered 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa on basis of evidence that applicant gave or caused to be given bogus document in relation to visa application – applicant absent from Court hearing – dismissal for non-appearance.  

MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) – Whether the Tribunal erred in its consideration of evidence – Where the Tribunal incorrectly applied the Ministerial Direction – Court satisfied that the error is not material – Judicial review application dismissed with costs 

MIGRATION – Urgent interlocutory injunction application – Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) visa – whether the Applicant should be granted an interlocutory injunction restraining the First Respondent from taking steps to remove the Applicant from Australia pursuant to section 198 of the Migration Act – found the Minister erred – interlocutory injunction granted.

MIGRATION – Temporary Graduate (Class VC) Subclass 485 visa – application for review of a Registrar’s decision – application of the English language test requirement – where visa application not accompanied by evidence that applicant had sat English language test within three years before the day on which visa application made – where the applicant’s application was summarily dismissed – no reasonable prospects of success in the substantive application – application dismissed. 

MIGRATION – Whether it was legally unreasonable for the Immigration Assessment Authority to not exercise its discretion under s 473DC of the Migration Act 1958 (Cth) in circumstances of partial acceptance of claim by delegate which Authority then rejected on the basis of demeanour in manner identified in ABT17  
 

MIGRATION - application for judicial review – student (Temporary) (Class TU) (Subclass 500) visa – where Administrative Appeals Tribunal affirmed decision not to grant applicant the visa as applicant did not comply with cl 500.212(a) of the Migration Regulations – whether Tribunal erred by failing to have regard to his passport – found no jurisdictional error on behalf of the Tribunal – application dismissed. 
 

MIGRATION – application for judicial review – student (Temporary) (Class TU) (Subclass 500) visa – where Administrative Appeals Tribunal affirmed decision not to grant applicant the visa as applicant failed to satisfy cl 500.212(a) of the Regulations – whether Tribunal failed to take into account relevant considerations – found no jurisdictional error on behalf of the Tribunal – application dismissed.
 

MIGRATION – application for Skilled (Provisional) (Class VC) (Subclass 485) visa – Administrative Review Tribunal not satisfied that the applicant met cl 485.222 of Schedule 2 of the Migration Regulations – affirmed Delegate’s decision to refuse the application – application for judicial review – no meaningful grounds of jurisdictional error asserted – application for judicial review dismissed.
 

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

MIGRATION LAW – Where the Authority was “not satisfied” that there were exceptional circumstances justifying the consideration of new information – where the Authority failed to properly carry out its role when considering whether there were exceptional circumstances justifying its consideration of new information – jurisdictional error established – application granted. 
 

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 to refuse the grant of the visa affirmed – where the applicant alleged erroneous findings in the tribunal’s decision –  found the error to be material – jurisdictional error established – application allowed.

MIGRATION – where the applicant granted a protection visa – where visa was subsequently cancelled pursuant to s 109 on basis of non-compliance with s 101 – where decision affirmed by the Tribunal - whether the Tribunal erred by failing to give proper consideration to the best interests of the Applicant’s children – where one of the children was an Australian citizen - the Tribunal failed to properly consider the best interests of the children – writs of certiorari and mandamus issued  

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 s36(a) or (aa) –Delegate’s decision to refuse the grant of Protection (Class XA) (Subclass 866) affirmed – whether Tribunal failed to take into account relevant considerations – no jurisdictional error established – application dismissed. 
 

INDUSTRIAL LAW – Where the First Respondent committed contraventions of provisions of the Fair Work Act – where no contrition shown – where the respondents failed to participate in the proceeding – where the quantum of any pecuniary penalty ordered to be paid was required to deter the respondents from committing further contraventions – orders accordingly 
 

INDUSTRIAL LAW – FAIR WORK – application for default judgment –– consideration of rr 13.04(2) and 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) – alleged contraventions of ss 44, 323(1), 405 and 550(2) of the Fair Work Act 2009 (Cth) – whether the respondent was involved in the contraventions of the applicant’s employer – upon admissions taken to have been made by reason of the respondent’s default contraventions found and default judgment entered 
 

PRACTICE AND PROCEDURE – Application in a proceeding requesting transfer to Brisbane Registry - consideration of mandatory factors – transfer request granted 
 

MIGRATION – Administrative Appeals Tribunal – Subclass 500 (Student) visa – grounds for cancellation of the visa existed – whether the Tribunal considered relevant information – grounds of judicial review have no merit – application dismissed

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – no point of principle – application dismissed 

MIGRATION – judicial review – application for reinstatement of judicial review application – where judicial review application was dismissed for non-appearance – whether applicant has arguable prospects of establishing that Tribunal’s decision was vitiated by jurisdictional error – where Tribunal dismissed review application after applicant failed to appear at hearing – where Tribunal confirmed dismissal decision after applicant failed to apply for reinstatement within prescribed period.

INTELLECTUAL PROPERTY - account of profits for infringement of registered trade marks – whether applicant is able to prove respondent made profit from the infringement of the applicant’s trade marks – profits not proved.   
 

INDUSTRIAL LAW- Whether there was a breach of the Heads of Agreement - Whether the bonus term contained in the Heads of Agreement was void for uncertainty – Determination of the amount of profit derived under the bonus term - Whether the applicant was an officer of the company for the purposes of the Corporations Act 2001 -  Whether a breach of the employment contracts occurred- Whether there was a breach of fiduciary obligations - Breach of ss 90(2) and section 44 of the Fair Work Act 2009 - Failure to pay accrued annual leave – Claim successful in relation to the Respondent’s failure to pay the Applicants in accordance with the bonus term – Cross-claim successful in relation to the loss of sales commission. 
 

BANKRUPTCY – Leave to proceed against a bankrupt in respect of a provable debt – relevant considerations.  

MIGRATION – Whether applicant was denied procedural fairness 

MIGRATION – protection 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) 
 

MIGRATION – Application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal fell into the species of error considered in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 in relying upon a finding that the applicant would express his sexuality and relationships in a “discreet manner” unlikely to draw the adverse attention of the authorities – writs issued 

INDUSTRIAL LAW - Application pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) for extension of time within which to make a general protections court application – whether applicant has given adequate explanation for delay – whether applicant has meritorious claim if extension granted – proceeding dismissed.
 

 MIGRATION – application for judicial review – decision of the AAT to not grant Protection (Subclass 866) Visa – whether the Tribunal failed to comply with the obligation under s 425(1) –  whether the Tribunal failed to consider relevant evidence – whether the Tribunal’s decision was unreasonable, illogical or irrational  –  whether the Tribunal failed to afford procedural fairness – whether the Tribunal relied upon and adopted a decision of a related proceedings that was itself affected by jurisdictional error – a no jurisdictional error established – application dismissed 
 

MIGRATION – Protection (Class XA) (Subclass 866) visa - Application for judicial review –Related proceeding – Proceedings heard concurrently – Reliance on country information – Typographical errors – No jurisdictional error – Application dismissed. 
 

MIGRATION – Student (Temporary) (Class TU) (subclass 500) visa – application for reinstatement of application for judicial review – whether reasonable excuse for non-appearance at hearing – whether reasonably arguable grounds of review – futility – application for reinstatement refused 
 

MIGRATION – protection (class XA) (subclass 866) visa – judicial review – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – where Minister’s delegate refused to grant applicant a visa – where Tribunal affirmed delegate’s decision – whether Tribunal’s decision was illogical, irrational or unreasonable – Tribunal’s decision attended by jurisdictional error – writ of certiorari issued – writ of mandamus issued  
 

MIGRATION – non-appearance by or on behalf of the applicant where a solicitor remains on the record for the applicant – limited engagement with the proceedings more generally – application dismissed for non-appearance 
 

MIGRATION – Medical Treatment (Visitor) (Class UB) – judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider all the medical evidence provided by the applicant before the hearing – whether the exercise of the discretion pursuant to s 362B(a) of the Migration Act 1958 (Cth) was unreasonable – whether the Tribunal failed to apply the requirements of cl 602.215 of the Migration Regulations 1994 (Cth) – whether the Tribunal erred in considering the applicant’s immigration history – no jurisdictional error established – application dismissed 
 

MIGRATION – temporary graduate (class VC) (subclass 485) (post-study work) visa – where former Administrative Appeals Tribunal (Tribunal) affirmed delegate’s decision that the first applicant did not satisfy cl 485.212 of the Migration Regulations 1994 (Cth) (Regulations) – where visa application was not accompanied by evidence that the first applicant achieved the allowable score on her English language test as specified by the Minister in the IMMI 15/062 instrument – judicial review – whether cl 485.212 of the Regulations is invalid – whether cl 485.212 of the Regulations, to the extent it contains the words “[t]he application was accompanied by evidence” ought be severed – whether the requirement that the application be accompanied by an English language test is unreasonable or lacking in proportionality – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed
 

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

PRACTICE AND PROCEDURE – Where solicitor purported to withdraw day before hearing – Notice to Withdraw invalid – Rule 9.03(2) of FCFCOA Rules – leave granted to withdraw and adjourn – costs pursuant to rule 22.06 reserved 
 

BANKRUPTCY – where a sequestration order made by a Registrar was set aside by consent on the debtor’s paying money to the creditors – whether trustee in bankruptcy is entitled to remuneration and reimbursement for work done and expenses incurred from the making of the sequestration order to the date on which the sequestration order was set aside – trustee is entitled to remuneration and reimbursement of expenses – whether the trustee is entitled to the amounts he claims for remuneration and reimbursement – determination made allowing part of the amount the trustee claims – debtor ordered to pay amount determined.