Judgments
Division 2 - General federal law
Judgment published date:
MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing student visa – whether Tribunal failed to give “genuine and realistic consideration” to applicant’s circumstances – whether Tribunal’s reasoning process was illogical and unreasonable - no jurisdictional error established – application dismissed.
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MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) was satisfied – whether applicant genuinely intended to stay temporarily in Australia – no jurisdictional error established – application dismissed.
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MIGRATION – Protection (Class XA) (Subclass 866) visa – Application for judicial review – Fear of harm due to genital mutilation – Persecution or significant harm arising from failure to register applicant’s birth in receiving country – Fear of discrimination and persecution due to gender dysphoria of sibling – Fear of forced disclosure of protection claims to authorities of receiving country – No jurisdictional error – Application dismissed.
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MIGRATION - Protection (Class XA) (Subclass 866) visa – Application for judicial review – Fear of genital mutilation of sibling–- Claims of persecution or significant harm arising from failure to register applicant’s birth in Malaysia – Fear of discrimination and persecution due to gender dysphoria of sibling – Fear of forced disclosure of protection claims to authorities of receiving country – No jurisdictional error – Application dismissed.
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MIGRATION – Administrative Appeals Tribunal –Protection visa – Whether the Tribunal’s adverse credibility findings on critical issues amounted to jurisdictional error – sole ground of judicial review upheld –Tribunal decision quashed – matter remitted to the Tribunal
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MIGRATION – Application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision made by the Immigration Assessment Authority (Authority) affirming decision not to grant the applicant a Safe Haven Enterprise Visa – whether the Authority failed to properly assess the applicant’s claims of harm – whether the Authority otherwise properly considered the applicant’s claims and country information that was relevant to the applicant’s claims – application dismissed.
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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.
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MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa – Whether the Authority’s assessment of new information under s 473DD of the Migration Act 1958 (Cth) is affected by jurisdictional error – Whether the Authority unreasonably failed to exercise the discretionary power under s 473DC of the Act – Whether the Authority engaged in reasoning, and made findings, that were legally unreasonable – application allowed
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MIGRATION - Protection (Class XA) (Subclass 866) visa – Application for judicial review –– Gender dysphoria claims for protection - Whether material jurisdictional error by the Tribunal – Whether Tribunal considered irrelevant evidence or failed to consider any material facts – No error – Application dismissed - Related proceedings.
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MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal was illogical, irrational or unreasonable – whether the Tribunal failed to exercise jurisdiction – whether the Tribunal failed to put information to the applicant – no jurisdictional error established – application dismissed
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MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider a claim clearly emerging on the material – membership of a particular social group – illogicality, irrationality or unreasonableness – no jurisdictional error established – application dismissed.
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MIGRATION – review of a decision of the Administrative Appeals Tribunal – protection visa – exercise of the discretion to proceed pursuant to s 426A(1A)(a) of the Migration Act 1958 – application dismissed.
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MIGRATION – Safe Haven Enterprise (Class XE) (Subclass 790) visa – Whether an unreasonable failure to exercise discretion under s 473DC(1) of the Migration Act 1958 (Cth) – Whether jurisdictional error material - Authority unreasonably exercised discretion – Informational gap – Jurisdictional error - Application allowed - Writs to issue.
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MIGRATION – application for an extension of time to seek judicial review – decision of the Administrative Appeals Tribunal of a lack of jurisdiction to hear the matter – where applicant failed to apply to the Administrative Appeals Tribunal within the prescribed timeframe – explanation for delay in lodging application for judicial review unsatisfactory – proposed grounds of review lacking in merit – not necessary in the interests of the administration of justice to extend time – application for an extension of time refused with costs
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MIGRATION – Persecution – Review of Administrative Appeals Tribunal (“Tribunal”) decision – visa – protection visa – refusal.
ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider every claim and made incorrect findings of fact.
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MIGRATION – Protection Visa – Administrative Appeals Tribunal – Whether the Tribunal misapprehended the applicants claims and failed to give them proper, genuine and realistic consideration – Whether the Tribunal reasoned with the applicants claims in an irrational, illogical or legally unreasonable way – Proposed grounds of judicial review have no merit – Application dismissed
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HUMAN RIGHTS – DISCRIMINATION – application by the respondent for summary dismissal – where the applicant is in default – where the applicant failed to attend a court ordered mediation and comply with orders – application for the statement of claim to be summarily dismissed or struck out – whether the statement of claim is evasive or ambiguous – orders made striking out portions of the statement of claim – orders made for the applicant to re-plead the statement of claim and for the parties to attend a mediation
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PRACTICE AND PROCEDURE – Application for transfer of proceeding to the Federal Court of Australia – relevant considerations.
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MIGRATION - application for judicial review of a decision of the (then) Immigration Assessment Authority – whether the Authority misinterpreted or misapplied s.473DD of the Migration Act 1958 (Cth) in the manner contended – whether the Authority failed to consider relevant claims or evidence – whether the Authority’s decision was attended by legal unreasonableness – jurisdictional error not established – application dismissed with costs.
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MIGRATION – application for review of decision made by Registrar to summarily dismiss judicial review application – where Tribunal found that it did not have jurisdiction to conduct review – where application for review made out of time – where no adequate explanation for delay – where there is no reasonable prospect of success of judicial review application – extension of time refused with costs
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INDUSTRIAL LAW – COSTS – Where the applicant discontinued the proceeding some months before a trial listed for a seven (7) day hearing – where the applicant failed to personally depose as to why he discontinued the proceeding – where substantial costs had been incurred by both the applicant and the respondent before the discontinuance of the proceeding – where a lawyer who provided an affidavit deposing on an information and belief basis what the applicant’s reasons for discontinuance were had failed to provide any explanation as to why the applicant had not personally deposed as to his reasons for discontinuing the proceeding – where the applicant’s lawyer had failed to depose as to why the applicant might have been unable to depose as to his reasons for discontinuing the proceeding – where no weight attached to the evidence of the applicant’s lawyer provided on an information and belief basis – where a costs order on a party/party basis was accordingly made in favour of the respondent.
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MIGRATION - Safe Haven Enterprise (Class XE) (Subclass 790) visa – Application for judicial review – Whether there was a real risk or a real chance of the applicant suffering significant harm – Whether Immigration Assessment Authority afforded the applicant procedural fairness – Application dismissed
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HUMAN RIGHTS – DISCRIMINATION – where the applicant alleges that the first respondent discriminated against him unlawfully in the course of his employment with the second respondent, in breach of sections 9 and 18C of the Racial Discrimination Act 1975 (Cth) – where the applicant claims that the second respondent is vicariously liable for those breaches – where the applicant also claims that the second respondent has independently breached section 9 of the Act by alleged underpayment of wages to the applicant – where the applicant seeks damages, declarations and an apology – consideration of whether the alleged conduct occurred and if so whether it was in breach of section 9 – consideration of whether any conduct was made otherwise than in private pursuant to section 18C of the Act – finding that the conduct did not breach sections 9 and 18C of the Act – application dismissed.
Judgment published date:
HUMAN RIGHTS – DISCRIMINATION – where the applicant alleges that the first respondent discriminated against him unlawfully in the course of his employment with the second respondent, in breach of sections 9 and 18C of the Racial Discrimination Act 1975 (Cth) – where the applicant claims that the second respondent is vicariously liable for those breaches – where the applicant also claims that the second respondent has independently breached section 9 of the Act by alleged underpayment of wages to the applicant – where the applicant seeks damages, declarations and an apology – consideration of whether the alleged conduct occurred and if so whether it was in breach of section 9 – consideration of whether any conduct was made otherwise than in private pursuant to section 18C of the Act – finding that the conduct did not breach sections 9 and 18C of the Act – application dismissed.
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MIGRATION – judicial review – partner visa – applicant alleged Tribunal was in error because it looked at whether the applicant was a member of the family unit of the primary person as at the time of the Tribunal’s decision whereas it should have considered that question as at the time of the application for the visa – no jurisdictional error disclosed as Tribunal needed to be satisfied of the relevant criteria at the time of the Tribunal decision on the material then before the Tribunal – application dismissed.
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MIGRATION – judicial review – protection visa – Tribunal accepted the applicant was a member of a particular social group being “persons being pursued by loan sharks” – Tribunal found on the country information the applicant would not be denied effective protection by the police from loan sharks – issue as to whether the Tribunal ignored or failed to have regard to relevant country information as to effective protection by the police from loan sharks – no jurisdictional error – application dismissed
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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)
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MIGRATION – Judicial review – Protection visa – Administrative Appeals Tribunal – Whether the Tribunal failed to consider claims - Whether the Tribunal erred in making a decision instead of dismissing the matter under s 426A – application dismissed.
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PRACTICE AND PROCEDURE – Fair Work – where earlier finding of contravention of s 340(1) of the Fair Work Act 2009 (Cth) – where finding of liability reflected failure of the respondent employer to discharge onus under s 361(1) of the Fair Work Act- where proceeding listed separately for hearing on relief – where respondent sought to rely on evidence of “decision-maker” to make submissions about compensation and penalty – where “decision-maker” had not given evidence at the liability hearing – where applicant objects to parts of affidavit – whether respondent is estopped from relying on parts of evidence of “decision-maker” because they invite the Court to trespass on findings of fact or law made in the liability judgment – objections upheld in part
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CONSUMER LAW – where applicant seeks declaration and orders under s 123 of the Personal Property Securitys Act 2009 (Cth) and s 100 of the National Credit Code – where respondent has failed to meet vehicle loan repayments – where applicant seeks to enter property to seize vehicle – where respondent did not participate in the proceedings – where application for substituted service was granted previously – order made requiring the respondent to deliver vehicle within 7 days – order made that applicant can enter the respondent’s residential property or any other property he has apparent control over for the purposes of repossessing the vehicle – respondent to pay applicant’s costs in a fixed amount
Judgment published date:
MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant partner visa – whether Tribunal failed to consider or have regard to text messages between applicant and sponsor in considering degree of companionship and emotional support they drew from each other – no jurisdictional error established – application dismissed
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MIGRATION – Persecution – Review of Immigration Assessment Authority (“IAA”) decision – visa – protection visa – refusal.
ADMINISTRATIVE LAW – Allegation that the IAA’s decision was affected by jurisdictional error by reason that it was unreasonable, illogical, irrational and against the weight of the evidence.
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MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal was required to make finding as to why militia group issued threat letter to applicant’s family - application dismissed
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MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – where the applicant did not attend a scheduled hearing – whether the Tribunal’s exercise of discretion under s 362B(1A)(a) of the Migration Act 1958 (Cth) was legally unreasonable or otherwise affected by error – application dismissed
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BANKRUPTCY – application of trustee under s 146 of the Bankruptcy Act 1966 (Cth) for distribution of dividends – where no statement of affairs filed by the Bankrupt with the Official Receiver – application heard ex parte – orders that the distribution of dividends proceed as if the Bankrupt had filed a statement of affairs as required by the Act – application granted.
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MIGRATION – Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa - Application for judicial review of a Registrar’s decision – No reasonable prospects of successfully prosecuting application – Application dismissed.
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MIGRATION – Skilled Independent (Points-Tested) (Subclass 189) visa - Application for review of a Registrar’s decision – Application for an extension of time to seek review – Rule 21.02(2) – Whether adequate explanation for delay – Consideration of merits – Allegation of fraud perpetrated by Migration Agent – Allegation unsupported by evidence – No particulars of jurisdictional error – No jurisdictional error apparent – No reasonable prospects of success – Application for review dismissed with costs.
Judgment published date:
MIGRATION – application for judicial review of a decision by the Tribunal affirming a decision not to grant the first applicant a Medical Treatment (Visitor) (Class UB) visa – whether the Tribunal ignored the first applicant’s medical condition and failed to recognise the first applicant as a person who needed medical treatment – whether the Tribunal failed to understand the first applicant’s serious depression – whether the Tribunal misunderstood the first applicant’s plan and reason why the first applicant did not wish to return to Nepal – whether the Tribunal was correct in finding that it did not have jurisdiction with respect to the second applicant – no jurisdictional error – application dismissed
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MIGRATION – judicial review – protection visa refusal – credibility – no jurisdictional error established – application dismissed.
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MIGRATION – judicial review – extension of time application – merits of underlying application – lengthy delay – unsatisfactory explanation for delay – extension of time refused
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MIGRATION – protection visa – decision of the Immigration Assessment Authority – whether the IAA failed to consider a claim which clearly emerged on the material before it – membership of a particular social group – whether the IAA failed to give genuine consideration to the applicant’s claims – illogicality – no jurisdictional error established – application dismissed
Judgment published date:
MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal erred in not accepting country information on which applicant relied or erred in preferring and relying on other country information – application dismissed
Judgment published date:
MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa - whether Tribunal erred in finding applicant was not credible - no jurisdictional error established – application dismissed.
Judgment published date:
MIGRATION – protection visa – application for review of a decision of the Administrative Appeals Tribunal – whether the Tribunal erred in failing to consider the risks faced by the applicant’s family as forming a basis for the fear of persecution faced by the applicant – whether the claim of vicarious harm to the applicant was articulated or suggested on the material before the Tribunal – jurisdictional error established.
Judgment published date:
MIGRATION – judicial review of a decision made by the Administrative Appeals Tribunal – student visa – whether s 366C of the Migration Act 1958 (Cth) was enlivened – no jurisdictional error established – application dismissed.
Judgment published date:
MIGRATION – Judicial Review – Where Administrative Appeals Tribunal (Tribunal) refused to grant applicant a student visa as it found the applicant was not a genuine applicant for entry and stay as a student as required under cl 500.212 – Whether the Tribunal failed to give the applicant an opportunity to respond to reasons for refusal – Whether Tribunal used Direction No. 69 as a checklist – Whether the Tribunal failed to obtain further information under s 359 of the Act – Where applicant stated that he experienced communication issues with the Tribunal in circumstances where he was provided access to an interpreter – application dismissed
Judgment published date:
PRACTICE AND PROCEDURE – review of Registrar’s decision – where Registrar made declaration under s 176(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) that discovery is in the interests of the administration of justice – whether Registrar had delegated power to make a declaration – statutory interpretation – Registrar had been delegated power to make declaration –
hearing de novo – whether orders for discovery ought be made – whether discovery is appropriate, in the interests of the administration of justice – where the Court is satisfied discovery is in the interests of the administration of justice – declaration under s 176(2) and orders for discovery made – discovery order set aside for uncertainty – alternative discovery and other orders made – application for review of Registrar’s decision otherwise dismissed
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INDUSTRIAL LAW – FAIR WORK ACT – general protections court application – application for an extension of time – matters relevant to the discretion – extension of time granted
Judgment published date:
MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) – whether the IAA misinterpreted or misapplied s 473DD of the Migration Act 1958 (Cth) in the manner contended – whether the IAA failed to consider claims or evidence – application dismissed
Judgment published date:
MIGRATION – judicial review – refusal of student visa – application under s 476 of the Migration Act 1958 (Cth) – Tribunal determined application on the basis of cl.500.211 (lack of enrolment in a course of study) rather than cl.500.212 (genuine temporary entrant) – whether failure to consider cl.500.211 constituted jurisdictional error – whether Tribunal failed to afford the Applicant procedural fairness
