Judgments

MIGRATION – judicial review – decision of Administrative Appeals Tribunal – dismissal for non-appearance – costs ordered.

MIGRATION– Judicial review of a decision of the Administrative Appeals Tribunal to not grant a student visa – Tribunal undertook a balancing exercise when assessing the factors in Direction No. 53 – jurisdictional error not established – Applicant seeks impermissible merits review – application dismissed with costs 

MIGRATION– Application for review of registrar’s decision – where registrar summarily dismissed the judicial review application – refusal of student visa on the basis of no evidence of current enrolment as required by cl 500.211(a) – Tribunal not required to consider reason for Applicant not being enrolled – no reasonable prospects of success – application dismissed with costs – registrar’s decision affirmed 

MIGRATION – Student 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 r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

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

MIGRATION – judicial review – protection visa – claims of domestic violence – whether Tribunal’s credibility findings impugned – inconsistencies, implausibilities and unwarranted assumptions – legal unreasonableness – jurisdictional error established.

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether Tribunal failed to consider GTE information submitted by applicant – whether Tribunal failed to consider claims cumulatively - no jurisdictional error established – application dismissed.  

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether Tribunal failed to notify applicant of issue arising in relation to decision under review – application dismissed 

MIGRATION– Judicial review of a decision of the Administrative Appeals Tribunal to not grant a protection visa – findings in relation to the Applicant’s whistleblower status and his Chinese Christian ethnicity – Tribunal accepted some of the Applicant’s claims but did not find risk of harm and/or protection obligations – Applicant seeks merits review – no jurisdictional error identified – application dismissed with costs 

MIGRATION – Protection visa – decision of the then 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 r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – dismissal for non-appearance – costs ordered. 

INDUSTRIAL LAW – FAIR WORK – application for default judgment – where respondents have not filed any response material or otherwise participated in proceedings – consideration of rr 13.04 and 13.05 of the Federal Circuit and Family Court of Australia (Division 2) General Federal Law) Rules 2021 (Cth) – alleged contraventions of ss 45, 323(1) and 325 of the Fair Work Act 2009 (Cth) – contraventions found – application granted.

Whether Court had jurisdiction to hear associated matter – whether tort of detinue or conversion – whether second respondent refused demand to return applicant’s belongings – relief granted.

PRACTICE AND PROCEDURE – Third party request for access to documents on the electronic court file – applicable principles and consideration of the interests of the proper administration of justice.  

MIGRATION – Partner (Temporary) (Class UK) (subclass 820) visa – review of a decision of the Administrative Appeals Tribunal – failure to consider evidence – no jurisdictional error established – application dismissed

BANKRUPTCY – whether an undischarged bankrupt had the relevant legal capacity to commence legal proceedings in respect of an interest in a regulated superannuation fund when any such interest was not property divisible amongst creditors of the bankrupt under s. 116(2)(d)(i) of the Bankruptcy Act – whether the trustee in Bankruptcy had any chose in action vested in him – application for declarations and orders made by trustee granted. 

MIGRATION – Student visa – decision of the then Administrative Review Tribunal – whether the Tribunal failed to consider evidence – whether the Tribunal considered irrelevant factors or failed to have regard to relevant factors – whether the Tribunal “took too long” to conduct its review – applicant’s late request to have time to appoint a solicitor refused – no jurisdictional error – application dismissed.

MIGRATION – judicial review of a decision of the Administrative Appeals Tribunal – where applicant applied for a Temporary Skill Shortage visa on the basis of a proposed nomination by her employer – where the employer withdrew the nomination before it was approved  – where the Tribunal found it had no jurisdiction to review the adverse delegate’s decision – where the applicant’s ground of judicial review challenged the validity of reg 2.75(2)(a) of the Migration Regulations 1994 – where the factual premise for the ground was not established – finding that Tribunal correctly determined that the decision of the delegate was not a Part 5-reviewable decision within the meaning of s 338(2)(d)(i) of the Migration Act 1958 – application dismissed with costs  

MIGRATION – Skilled visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal misunderstood the effect of cl 485.224 in Schedule 2 of the Migration Regulations 1994 (Cth) – whether the applicant was denied procedural fairness – whether the Tribunal failed to consider evidence before it – whether the applicant was given a “meaningful” opportunity to appear before the Tribunal – whether the Tribunal’s decision was affected by bias – whether the conduct of the applicant’s agent amounted to fraud on the Tribunal – whether the Tribunal ought to have considered the applicant’s visa application against both the Graduate Work stream and the Post-Study Work stream – no jurisdictional error – application dismissed.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal – dismissal for non-appearance – costs ordered 

MIGRATION – application for protection visa – visa refused by delegate – application for review by Tribunal lodged out of time – where Tribunal found it had no jurisdiction – application for judicial review lodged out of time – extension of time application – not necessary in the interests of the administration of justice to make order extending time – application dismissed

MIGRATION – Student (Temporary) (Class TU) (subclass 500) visa – judicial review of a decision of the Administrative Appeals Tribunal – procedural fairness – adequacy of interpretation – no jurisdictional error established– application dismissed 

MIGRATION – review of Registrar’s decision – where Tribunal dismissed merits review application for non-appearance – no reasonable prospects of success – application dismissed with costs 

 MIGRATION – Ex Tempore – Application for the review of a Registrar's decision – Application for review made 26 days out of time – Whether or not leave should be granted to extend the time for the review of the Registrar's decision – leave refused 

MIGRATION – Regional Sponsored Migration Scheme (Class RN) (Subclass 187) visa – judicial review of a decision of the Administrative Appeals Tribunal – misapplication of Public Interest Criterion 4020(1) – third party fraud – materiality – futility – no jurisdictional error – 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 had not complied with condition 8202(2) – whether Tribunal erred by failing to take into consideration the Applicant’s circumstances –  parties invited to make further written submissions to address whether applicant had re-enrolled in a course of study after the NOICC – found no jurisdictional error on behalf of the Tribunal – application dismissed.

MIGRATION – Migration Act 1958 (Cth) – application for Protection (Class XA) (Subclass 866) visa – Administrative Review Tribunal not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s 36(a) or (aa) and affirmed Delegate’s decision to refuse the application for the Protection (Class XA) (Subclass 866) visa – application for judicial review – no meaningful ground of jurisdictional error asserted – application dismissed.

PRACTICE AND PROCEDURE – Where proceedings commenced in Sydney Registry and solicitors for the applicant located interstate – late request for appearance by video link – request sent by administrative assistant – where correspondence sent ex parte and containing submissions regarding matters of substance and presuming Court would accede –  proceedings are to be held in person unless otherwise allowed

PRACTICE AND PROCEDURE – application for an extension of time to seek judicial review of the Administrative Appeals Tribunal (Tribunal) decision – extension of time granted

MIGRATION – application for judicial review of a decision of the Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal decision was affected by apprehended bias – jurisdictional error established – writs issued.  

CONSUMER LAW – Consumer protection – where respondent refused to engage in process – default judgment entered – damages assessed 

HUMAN RIGHTS – EVIDENCE – parties jointly seek a determination on the admissibility of material filed in the proceeding as evidence under the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) – where the parties seek to rely on documents which are deemed inadmissible under section 37(1) of the Act – determination that the documents are admissible as evidence pursuant to the exception in section 37(2) – finding that section 93(1)(e)(i) applies to the extent that either party seeks to rely on information which would otherwise fall within section 92 of the Act. 

INDUSTRIAL LAW -where applicant made a complaint to a body not involved in employer/employee relationships or workplace health and safety matters – whether there was a workplace right that was exercised – where no workplace right existed – application dismissed – cost order  

MIGRATION -  application for judicial review of a decision of the (then) Immigration Assessment Authority – whether the Authority failed to consider relevant claims or evidence – misinterpreted or misapplied s.473DD and/or s.473DC of the Migration Act 1958 (Cth) in the manner contended – whether the Authority’s decision was attended by legal unreasonableness – where Applicant’s evidence before delegate included an expression of disclaimer – jurisdictional error not established – application dismissed with costs  n

MIGRATION - Safe Haven Enterprise (Class XE) (Subclass 790) visa – Application for judicial review – Whether Immigration Assessment Authority failed to consider a relevant fact – Whether information was new information that met the exceptional circumstances criteria in s 473DD of the Act – Whether well-founded fear of persecution – No jurisdictional error – Application dismissed. 

MIGRATION – Protection (subclass 866) visa – judicial review of a decision of the Administrative Appeals Tribunal – failure to consider – no jurisdictional error established – application dismissed 

MIGRATION – Regional Employer Nomination (Permanent) (subclass 187) visa – judicial review of a decision of the Administrative Appeals Tribunal – procedural fairness – issues arising in relation to the decision under review – no jurisdictional error established – application dismissed 

MIGRATION - Student (Temporary) (Class TU) visa – Application for review of a Registrar’s decision – Whether reasonable prospects of success – Summarily dismissed pursuant to 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – Costs ordered. 

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to assess the applicant’s protection claims – whether the applicant was denied procedural fairness – whether the Tribunal was biased – no jurisdictional error – application dismissed.

MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicant’s circumstances – whether the Tribunal was correct to find that the opinion of the Medical Officer of the Commonwealth was correct – no jurisdictional error – application dismissed.

MIGRATION – Migration Act 1958 (Cth) – application for Protection (Class XA) (Subclass 866) visa – Administrative Review Tribunal not satisfied that the applicants were persons to whom Australia has protection obligations as outlined in s 36(a) or (aa) and affirmed Delegate’s decision to refuse the application for the Protection (Class XA) (Subclass 866) visa – application for judicial review – no meaningful ground of jurisdictional error asserted – no jurisdictional error established – application for judicial review dismissed.

MIGRATION LAW – whether submissions were ever sent to the Authority on behalf of the applicants – whether there was an explanation for non-receipt by the Authority of the submissions before the Authority handed down its decision – no jurisdictional error established – application dismissed.  

MIGRATION LAW – application for judicial review of a decision of the Immigration Assessment Authority to not grant a protection visa – fast track review – claims relating to family’s involvement in Liberation Tigers of Tamil Eelam activities, family being imputed with a pro-LTTE political opinion and harassment by Sri Lankan officials – IAA’s findings were reasonably open to it – application dismissed with costs 

MIGRATION – application for review of a decision of the Administrative Appeals Tribunal – protection visa – application dismissed. 

MIGRATION – application for review of decision of Immigration Assessment Authority (IAA) – parties seeking issue of writ of certiorari against IAA where IAA now disestablished – approach where orders sought by consent – decision quashed

MIGRATION – application to extend time where application to Court nearly four months out of time – where Tribunal found it had no jurisdiction to entertain review application made out of time and had no discretion to extend time – no arguable jurisdictional error – application to extend time dismissed

MIGRATION – Migration Act 1958 (Cth) – Application for Protection (Class XA) (Subclass 866) visa – Administrative Review Tribunal not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s 36(a) or (aa) and affirmed Delegate’s decision to refuse the application for the Protection (Class XA) (Subclass 866) visa – application for judicial review – no meaningful ground of jurisdictional error asserted – no jurisdictional error established – application for judicial review dismissed.

COSTS – Proceeding under the Fair Work Act 2009 (Cth) - quantification of costs entitlement – assessment pursuant to the Federal Circuit and Family Court of Australia (Division 2) general federal law scale of costs 

PRACTICE & PROCEDURE – Death of applicant – abatement of proceeding.  

PRACTICE & PROCEDURE – Death of applicant – abatement of proceeding.  

FAIR WORK – application in a proceeding seeking summary judgment in respect of various parts of the applicants’ claim – whether the applicants’ statement of claim is misconceived to the extent it alleges contravention of a ‘workplace right’ under s 340(1) of the Fair Work Act 2009 (Cth) – whether the applicants’ claim is misconceived to the extent it seeks protection under s 346 – whether the applicants’ claim there was a contravention of s 350B(1) can be sustained as a matter of law.