Judgments

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

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 
 

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 
 

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. 
 

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 – 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 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 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. 
 

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

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. 
 

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.   
 

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.

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

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 – 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 – Whether applicant was denied procedural fairness 

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 

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 
 

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 - Application for judicial review –Related proceeding – Proceedings heard concurrently – Reliance on country information – Typographical errors – No jurisdictional error – Application 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 
 

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 

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.
 

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.   
 

PRACTICE AND PROCEDURE - Student (Subclass 500) visa application - Notice of Discontinuance - Leave to file Notice of Discontinuance before hearing - Discretion to award Costs – Leave granted - Costs ordered 
 

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 
 

PRACTICE AND PROCEDURE – Artificial Intelligence – conduct of legal practitioners before the Court – citation of cases which do not exist – case citations generated by an artificial intelligence program – duties to the Court – practitioner referred to Legal Practice Board of Western Australia – personal costs order made against legal practitioner – application of s 486E and s 486F of Migration Act 1958 (Cth). 

MIGRATION – Where applicants alleged during final hearing that error constituted by inadequate standard of interpretation at Tribunal – additional opportunity provided to applicants to file evidence not taken  
 

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) of Act–  whether the Tribunal failed to consider relevant evidence related to the applicant’s credibility – 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 –  no jurisdictional error established – application dismissed  
 

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal erred in relying on general country information that did not fully reflect the applicant’s situation – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal erroneously assumed the applicant could seek effective state protection – no jurisdictional error – application dismissed. 

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal failed to consider the applicant’s claims – no jurisdictional error – application dismissed.  
 

MIGRATION – Application for judicial review – regional employer nomination (subclass 187) visa – refusal due to no approved nomination – application for review of registrar’s summary dismissal – extension of time –inadequate explanation for delay – no reasonably arguable error – futility of remittal – application dismissed 
 

MIGRATION – student visa – decision of the Administrative Appeals Tribunal (as it then was) – genuine temporary entrant criterion – procedural fairness – consideration of the applicant’s evidence and arguments – whether the Tribunal’s reasoning regarding the applicant’s change of course was open to it – no jurisdictional error established – application dismissed. 

MIGRATION – Administrative Appeals Tribunal provision of false and misleading information in visa application – whether there was anything illogical unreasonable or irrational in the Tribunal’s decision – where the applicant conceded there were no compassionate or compelling circumstances in favour of a waiver – sole ground of judicial review has no merit – application dismissed    
 

MIGRATION – JUDICIAL REVIEW – Where the Respondent conceded that the decision to grant the Applicant a substantive visitor visa involved jurisdictional error - Constitutional writs issued by consent 
MIGRATION – BRIDGING VISA - Whether on the correct interpretation of s. 82(7A) of the Act and cl. 010.511(1)(b)(i) and (2) of the Regulations the bridging visa ceased on the “in fact” grant of the visitor visa even though the grant involved jurisdictional error or whether because the grant involved jurisdictional error the Applicant continued to hold the bridging visa - Where although it has been said that an administrative decision which involved jurisdictional error is no decision at all the legal and factual consequences of an invalid decision depend on the statute - Expressio unius - Held that the grant of the substantive visa was in law no decision at all and on the correct interpretation of the statute the Applicant continued to hold the bridging visa
DECLARATION - Declaration made by way of ancillary relief that the Applicant held the bridging visa in addition to the issue of the constitutional writs
 

MIGRATION - application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) affirming refusal of a protection visa – whether the IAA’s decision was affected by legal unreasonableness – whether the IAA failed to consider an integer of a claim – application dismissed

MIGRATION – Application for judicial review – Partner (temporary) (class UK) (subclass 820) visa – Whether genuine spousal relationship exists – Whether family violence allegations required to be considered – No jurisdictional error established – Application dismissed with costs 

MIGRATION LAW – Application for judicial review –Student (subclass 500) visa refused – Genuine temporary entrant criteria not met – No jurisdictional error established – Application dismissed with costs 

MIGRATION LAW – Application for judicial review –Student (subclass 500) visa refused – Genuine temporary entrant criteria not met – No jurisdictional error established – Application dismissed with costs 

INDUSTRIAL LAW – Fair Work – agreed penalties – admitted failure to comply with compliance notice – admitted contravention of s 536(3) of the Fair Work Act 2009 (Cth) by giving pay slip containing misleading information – admitted accessorial liability - statement of agreed facts  – application of penalty considerations – demonstration of cooperation – limited financial information – need for specific and general deterrence where employer continues to trade – declarations and orders made 

MIGRATION –  Administrative Appeals Tribunal – Student (Temporary) (Subclass 500) visa – one ground of judicial review – whether the Tribunal failed to take into account evidence and failed to give these considerations appropriate credibility. sole ground of judicial review has no merit – impermissible merits review – application dismissed with costs

MIGRATION LAW – where the applicants’ ground of review was unparticularised – where the applicants’ failed to place evidence before the Court probative of the claim that the Tribunal member had denied them procedural fairness during the conduct of the Tribunal hearing – where it was open to the Tribunal to find that the applicants did not have a well-founded fear of persecution should they be returned to Papua New Guinea – no jurisdictional error established – application dismissed.   

MIGRATION –  Administrative Appeals Tribunal – Student (Temporary) (Subclass 500) visa – four grounds of judicial review – whether the Tribunal failed to review the decision of the Department – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to take into account relevant considerations – whether Tribunal was legally unreasonable – grounds of judicial review have no merit – impermissible merits review – application dismissed with costs

MIGRATION – application for extension of time - judicial review of a decision of the Administrative Appeals Tribunal – minimal delay – not in the interests of the administration of justice to extend – no reasonably arguable case – application dismissed