Judgments

PRACTICE AND PROCEDURE – Application for interlocutory injunction to restrain respondent from terminating the applicant’s employment – whether prima facie case is sufficiently strong – whether balance of convenience favours grant of interlocutory relief – application for interlocutory relief dismissed. 

PRACTICE AND PROCEDURE – Application for leave to re-open – relevant principles – finding that the interests of justice are better served by granting leave to re-open in the particular circumstances of the case – leave to re-open granted on condition of certain Court fees being paid by the first respondent – referral of the matter for pro bono assistance. 

MIGRATION – application for judicial review – protection visa – application filed out of time – whether an extension of time should be granted – length of delay and explanation for that delay – any prejudice caused – merits of the underlying application for review – application dismissed. 

MIGRATION – judicial review application – decision of Administrative Appeals Tribunal refusing to grant partner visa – whether applicant provided bogus document - construction of “in relation to” in PIC 4020(1) – no jurisdictional error established – application dismissed.   

MIGRATION – Protection visa refusal – judicial review of decision of Immigration Assessment Authority – suspected political group involvement – where Authority decided not to consider new information – where Authority found applicant’s political involvement low-level – no real chance of harm found – whether new information was credible personal information – whether Authority misunderstood or misapplied s 473DD – error established – whether error material – writs issued 

MIGRATION – judicial review application – decision of Administrative Appeals tribunal refusing grant of protection visa - whether Tribunal misunderstood the applicant’s evidence – no jurisdictional error established – application dismissed.  

 MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing Medical Treatment visa – whether Sch 2 cl 602.215 should be applied – whether applicant genuinely intended to stay temporarily in Australia – - Tribunal failed to consider relevant information - no jurisdictional error established – application dismissed.  

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – 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 delegate and the Tribunal disregarded the persecution the applicant faced from the Chinese authorities on account of his support for Hong Kong – whether the Tribunal failed to consider the matters raised in the applicant’s written statement – 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 – where the applicant asserts an unspecified jurisdictional error – whether the Tribunal’s conclusion was based on personal opinion rather than fact – no jurisdictional error – application dismissed. 

MIGRATION-Decision of Administrative Appeals Tribunal – refusal of student visa – whether failure to consider evidence – whether findings legally unreasonable – impermissible merits review - application dismissed 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa - whether Tribunal’s credibility findings were unreasonable – 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 did not adequately consider or give sufficient weight to evidence and claims presented – whether the Tribunal made errors in its fact-finding process by not properly investigating or questioning the accuracy of the applicant’s claims – no jurisdictional error – application dismissed. 

MIGRATION LAW – Where it was claimed that the Tribunal had misunderstood and misapplied subordinate legislation – where it was claimed that Tribunal had made a finding without there being any evidence to justify the finding - where claims made with an eye too keenly attuned to error – no jurisdictional error established – application dismissed.    

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant medical treatment visa – whether applicant satisfied genuine temporary entrant criteria for purpose of visa – applicant did not satisfy cl 602.212(6) – whether decision was decision was legally unreasonable - no jurisdictional error established – application dismissed. 

MIGRATION LAW – Where the applicant failed to establish that he had an ownership interest in one or more main businesses over a two-year period before he made application for a visa – where no jurisdictional error established on the part of the Tribunal – application dismissed. 

MIGRATION – Partner (Temporary) (Class UK) (Subclass 820) visa – review of a decision of the Administrative Review Tribunal – whether the Tribunal failed to consider all the circumstances of the parties’ relationship, including all the matters set out in r 1.09A(3) of the Migration Regulations 1994 (Cth) and failed to consider whether the applicant suffered family violence by the sponsor – no jurisdictional error established – application dismissed  

PRACTICE AND PROCEDURE – Application made by the First Respondent to amend defence – Where application granted – Greater weight given to the Respondents being able to advance all arguments than any prejudice to the Applicant

PRACTICE AND PROCEDURE – Affidavits – Late filing of Respondents’ affidavits permitted – No material prejudice to the Applicant 

INDUSTRIAL LAW – FAIR WORK – hospitality industry – application for penalties in relation to contraventions of general protections and various minimum entitlement, regular payment and payslip obligations under the Fair Work Act 2009 (Cth) – where default judgment was entered in respect for liability and the respondent has continued to elect not to participate in the proceedings for relief – final relief granted on default.   

 INDUSTRIAL LAW – FAIR WORK – hospitality industry – contraventions of general protections and various minimum entitlement, regular payment and payslip obligations arising under the Fair Work Act 2009 (Cth) – where default judgment was entered in respect of liability and the respondent has continued to elect not to participate in the proceedings for relief – final relief granted on default.  

INDUSTRIAL LAW – FAIR WORK – hospitality industry – application for penalties in relation to contraventions of general protections and various minimum entitlement, regular payment and payslip obligations under the Fair Work Act 2009 (Cth) – where default judgment was entered in respect for liability and the respondent has continued to elect not to participate in the proceedings for relief – final relief granted on default.    

CONSUMER LAW – application under s 100 and s 101 of the National Credit Code for access to residential premises for the purpose of taking possession of a vehicle claimed to be the subject of a security interest, and an order for possession of a vehicle – whether order should be made deeming service – whether preconditions for making of orders under s 100 and s 101 satisfied – orders made. 
 

CHILD SUPPORT – JURISDICTION – appeal from a decision of the Administrative Appeals Tribunal – where the applicant appealed under section 44AAA of the Administrative Review Tribunal Act 1975 (Cth) –  where the decision on appeal was made by a Deputy President of the Tribunal – consideration of jurisdiction under section 44 – consideration of whether the matter was heard on first review pursuant to section 3 – finding that the Federal Circuit and Family Court of Australia does not have jurisdiction to hear the appeal – appeal dismissed 

BANKRUPTCY – Ex Tempore - application for leave to distribute dividends to creditors of bankrupt estate – failure to file statement of affairs pursuant to s 54 of the Bankruptcy Act 1966 (Cth).   

MIGRATION – student (class TU) (subclass 500) visa – where delegate refused to grant applicant and his spouse a visa – judicial review – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – where former primary applicant abandoned visa application before Tribunal hearing – where applicant was formerly the dependent applicant to the visa application – where applicant attended Tribunal hearing as substituted primary review applicant – whether Tribunal’s decision attended by jurisdictional error – request under s 359A of the Migration Act 1958 (Cth) – whether Tribunal erred in inviting applicant to attend a hearing where he was not entitled to attend – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed. 

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 in interests of administration of justice to grant an extension of time application – no substantial merit to grant extension of time found – application dismissed. 

MIGRATION – Decision of Administrative Appeals Tribunal to refuse medical treatment visa – whether medical evidence not considered – whether failure to consider treatment in home country – whether Tribunal should have made further enquiries – whether procedural fairness denied – application dismissed- procedural issue – admissibility of new medical evidence. 

MIGRATION - protection visa – application for judicial review of a decision of the then Immigration Assessment Authority – whether the Applicant was denied procedural fairness – whether the Authority otherwise made an error of law – non-identification of basis for contentions – no jurisdictional error established – application dismissed with costs.  

MIGRATION – protection visa – application for review of decision of the then Immigration Assessment Authority – whether the applicant was denied procedural fairness – where applicant made generalised allegations of error which were not particularised or developed – no jurisdictional error established – application dismissed with costs. 

MIGRATION - Protection (Class XA) (subclass 866) visa - Application for judicial review – Application for review of Registrar decision - Non-appearance of applicant - Application dismissed. 

MIGRATION – Judicial Review – protection visa – credibility assessment – inconsistencies and implausibilities – unwarranted assumptions – legal unreasonableness – whether Tribunal had proper regard to circumstances affecting the applicant’s ability to recall traumatic events when giving evidence – whether Tribunal failed to understand and thereby mischaracterised the applicant’s evidence – whether Tribunal failed to explain significance of inconsistency when reaching an adverse credibility finding – whether Tribunal relied upon an unwarranted assumption – where Tribunal reached findings based on common knowledge – no error disclosed – application dismissed.

MIGRATION - Student (Temporary) (Class TU) visa - Application for judicial review – Non-appearance of applicant - Application dismissed. 

MIGRATION – Judicial Review – Partner visa – Schedule 3 criteria – failure to satisfy criterion 3001 – Tribunal declined to assess whether applicant satisfies criteria 3003 and 3004 – whether Tribunal erred in finding no ‘compelling reasons’ existed for not applying certain Schedule 3 criteria – proper construction and application of cl 820.211(d)(ii) – misconstruction of statutory task – jurisdictional error established – application allowed.

BANKRUPTCY – Creditor’s petition – service of bankruptcy notice – parties have history of convoluted proceedings between each other – relevance of earlier discontinued proceedings against second respondent – exercise of court’s discretion to go behind judgment debt – relevance of counterclaim – extension of petition – overarching principle of civil litigation – relevance of fraud of first respondent – exercise of discretion – matters to be considered. 

MIGRATION - judicial review – decision of Administrative Appeals Tribunal refusing to grant partner visa – Tribunal refused to permit applicant to give oral evidence at hearing – whether breach of procedural obligation – whether Tribunal failed to provide applicant with meaningful opportunity to present case - whether Tribunal’s procedural decision to refuse to permit applicant to give oral evidence was legally unreasonable – whether reasons provided by Tribunal for refusing to permit applicant to give oral evidence were complete explanation for exercise of power or discretion

MIGRATION – judicial review – whether Tribunal ought to have adjourned hearing or given applicants additional time after hearing to obtain and provide further evidence to Tribunal – whether Tribunal’s procedural decision not to adjourn hearing was legally unreasonable – whether Tribunal’s procedural decision not to give applicants additional time to obtain evidence was legally unreasonable 

MIGRATION – application for judicial review of decision made by the Administrative Appeals Tribunal – student visa – whether the Tribunal made an express finding that the applicant genuinely intends to stay temporarily – no jurisdictional error established – application dismissed.   

MIGRATION – Protection (Class XA) (subclass 866) visa – application for extension of time to bring application for judicial review of a decision of the Administrative Appeals Tribunal that it lacked jurisdiction to review application – extension of time not necessary in the interests of the administration of justice – application for extension of time is refused 

MIGRATION – Student visa refusal – decision of the Administrative Appeals Tribunal to confirm its dismissal for non-appearance – where the applicants did not apply for reinstatement – where the primary applicant submits circumstances beyond her control were not considered by the Tribunal – application dismissed 

MIGRATION LAW – application for judicial review of a decision of the Administrative Appeals Tribunal to not grant a protection visa – application filed 900 days out of time – substantial delay – inadequate explanation for delay – application lacks merit – extension not in the administration of justice – application dismissed with costs 

MIGRATION LAW – judicial review of a decision of the Immigration Assessment Authority to not grant a protection visa – fast track decision – consideration of well-founded fear of persecution by reason of the heavy discrimination of Tamils in Sri Lanka – reasons of the IAA do not embrace a claim with respect to discrimination – particular not subsumed by the generality – no error in consideration of material before the IAA – application allowed 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa - whether Tribunal’s credibility findings were unreasonable – no jurisdictional error established – application dismissed. 

PRACTICE AND PROCEDURE – application for substituted service – whether it is impracticable to serve documents by hand – whether the proposed methods of service will result in the documents coming to the attention of the respondents – orders for substituted service made

PRACTICE & PROCEDURE – Fair Work proceedings – extension of time – General Protections claim – Australian Consumer Law -  whether leave should be granted for the General Protection claim to be filed out of time – whether leave should be granted for the applicant to rely upon causes of action the Court has previously dismissed – leave to rely on the General Protection claim refused – leave is granted for the applicant to pursue claims under the Australian Consumer Law. 

MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal relevantly erred in relying upon correspondence sent to an email address associated with the applicant’s representative – futility – application dismissed 

MIGRATION LAW – JUDICIAL REVIEW – Medical treatment visa – Where the Tribunal was satisfied that the Applicant met some but not all of the criteria for the grant of a visa – Where the Applicant had made arrangements for medical treatment in Australia and met criteria for the grant of a visa under cl. 602.212(2) of Schedule 2 to the Migration Regulations 1994 – Where the Tribunal found that the Applicant did not genuinely intend to stay temporarily in Australia and did not meet the criteria under cl. 602.215 for the grant of a visa – Whether the Tribunal failed to consider the Applicant’s compelling circumstances – Whether the Tribunal’s conclusion was legally unreasonable – Held no jurisdictional error – Application dismissed 

CHILD SUPPORT - Writ of certiorari issues quashing the decision of Administrative Appeals Tribunal - writ of mandamus issues requiring the Administrative Review Tribunal to determine the application made to it for review according to law - no order for costs  

BANKRUPTCY - Application for review of a Registrar’s decision to make sequestration order – Hearing de novo – Discretion not to make an order – Solvency – Annulment – 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 – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – whether Authority failed to consider information provided by representative to Authority. 

MIGRATION – application for Employer Nomination Scheme (Subclass 186) visa – where Administrative Appeals Tribunal not satisfied that applicant had a valid nomination as required by cl 186.233(3) – Tribunal found no jurisdiction to hear nomination application – summary dismissal application by Minister dismissed – application for judicial review – no meaningful ground of jurisdictional error asserted – no jurisdictional error established – application for judicial review dismissed.