Judgments

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – where applicant identifies as a lesbian Muslim and claims to fear harm on that basis – where country information identifies widespread discrimination and harm against those who are LGBTQ identified – where Tribunal concludes that applicant lived “discreetly” and “privately” – where Tribunal determines that no harm would arise if applicant returns to Malaysia – whether the Tribunal failed to properly address the question of whether the applicant’s fear of persecution was well-founded as per the principles in Appellant S395/2002 – Tribunal found to have constructively failed to exercise its jurisdiction – jurisdictional error established – writs issued.

CONSUMER LAW – mortgagee seeking possession of mortgaged goods following default in compliance with finance agreement.

PRACTICE AND PROCEDURE – Application in a proceeding– strike out application – pleading misleading and deceptive conduct – need for precision – whether pleading confusing or embarrassing – whether pleading reveals a reasonable cause of action – pleading accessorial liability – definition of “involved” for purposes of accessorial liability – whether required identification of the paragraphs of the definition of “involved” – whether leave to replead paragraphs struck out

HUMAN RIGHTS – application for leave under s 46PO of the Australian Human Rights Commissions Act 1986 (Cth) – racial discrimination – where Commission previously terminated applicant’s complaint – consideration of whether it is in the interests of the administration of justice for leave to be granted – where the applicant claims unlawful discrimination in breach of the Racial Discrimination Act 1975 (Cth) – where applicant claims that the English Language Skills Registration Standard imposed upon the paramedicine profession is discriminatory – consideration of principles relevant to a suppression or non-publication order – found open justice the paramount consideration and denied the application for anonymisation – consideration of discretion to permit cross-examination in the context of an interlocutory proceeding – where certain grounds of applicant’s claims misconceived – where language or English language proficiency is not a protected attribute under the RDA –found neither the National Law nor the ELS Standard limits the rights of a person of Ugandan national origin – found applicant’s discrimination claim not reasonably arguable – leave refused and application otherwise dismissed.

INDUSTRIAL LAW – general protections claim – adverse action – alleged breach of employment contract – alleged breaches of Fair Work Act – whether employee exercised workplace rights – if exercise of workplace rights was a substantive and operative reason for dismissal – reverse onus satisfied by respondents – general protections claims not made out – breach of contract claim successful in part – whether obligation to give payslips satisfied if access available via payroll software – declarations made that there were some contraventions of the Fair Work Act by the first respondent

INTELLECTUAL PROPERTY - Practice and procedure – application to vary two of the orders (Orders) for costs made on 29 November 2024 on the ground that the applicants were denied procedural fairness – whether the orders for costs were interlocutory – whether the applicants were denied procedural fairness – order for costs are interlocutory – applicants denied procedural fairness – Orders set aside and directions made for the filing of evidence in relation to the quantification of costs.

MIGRATION — judicial review — student visa — Ministerial Direction No. 69 —  genuine temporary entrant criterion — procedural fairness — jurisdictional error not established — application dismissed

MIGRATION — judicial review — student visa —Ministerial Direction No. 69 — whether applicant was a genuine temporary entrant  — unfairness or unreasonableness not established ¬ — jurisdictional error not established — application dismissed

MIGRATION – Whether claim made in submissions to Immigration Assessment Authority was new information where subject matter of claim was contained in country information which had been before the delegate

FAMILY LAW – APPEAL – Where the wife appeals from final property orders – Where the wife alleges errors of fact – Where the primary judge assigned the same liability to each of the husband and the wife in the balance sheet – Where the husband concedes the error – Where further errors of fact as to value of a motor vehicle and furniture are made out but are de minimis – Where the wife contended other errors as to failure to take into account relevant considerations, errors as to weight, and as to the overall outcome being unreasonable or plainly unjust – Where those grounds are not made out – Appeal allowed – Final property orders confirmed with variations pursuant to s 36 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to correct the discrete and confined error without varying the percentage division of the property of the parties or changing the specie of property achieved by way of the primary judge’s orders, the correction finalising the litigation as quickly, inexpensively, and efficiently as possible – No order made as to costs.

MIGRATION – Partner visa – whether Tribunal failed to properly consider social aspects of relationship and nature of household – whether decision of Tribunal legally unreasonable

MIGRATION – judicial review – dismissal of application for non-appearance

MIGRATION – Application for an extension of time to make an application reviewing a decision of the Administrative Appeals Tribunal (the Tribunal) – whether there was a reasonable explanation for delay in filing – whether in the interests of administration of justice to grant extension – extension of time granted – Protection visa – a refusal to grant protection visa under section 65 of the Migration Act 1958 – the Tribunal affirm delegate’s decision – applicant’s claim for protection grounded on claim to be member of particular social group, being homosexual – judicial review – jurisdictional error – whether reasonably open to find that the applicant has given inconsistent evidence – whether decision by Tribunal involved assumptions pre-conceptions or prejudgments – materiality of reasoning – writ of certiorari issued – writ of mandamus issued.

MIGRATION – application of judicial review of a decision made by the Administrative Appeals Tribunal – whether the Tribunal constructively failed to review the delegate’s decision – whether the Tribunal denied the applicant procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extend him the opportunity to reply to adverse information due to interpretation errors at the hearing – no jurisdictional error – application dismissed.

MIGRATION – Application for extension of time – where explanation for delay was election by applicant to seek Ministerial intervention in reliance on information set out in Tribunal’s decision

MIGRATION – Judicial review – decision of Immigration Assessment Authority – citizen of Sri Lanka – Tamil ethnicity – Christian religion – alleged fear of harm from Tamil political organisation – new information being allegation of abduction and sexual assault – whether failure to apply real chance test – whether failure to consider relevant considerations – whether failure to consider whether new information met statutory requirements – whether law misunderstood or misinterpreted in consideration of new information – whether failure to consider claim applicant specifically targeted – whether failure to consider concerning conduct of Tamil political organisation – whether failure to consider information relating to risk of torture or other serious or significant harm – whether findings unreasonable, illogical or irrational – whether findings made on basis of no probative evidence – whether  exceptional circumstances to justify considering new information – whether unreasonable not to interview applicant – whether unreasonable not to give significant corroborative weight to letters from various civil and clerical officeholders – whether material jurisdictional error – writs issued

MIGRATION – Application for judicial review – decision of the Immigration Assessment Authority – citizen of Afghanistan – Hazara Shia – previously resident in Quetta, Pakistan – whether the test for internal relocation in considering whether there was taken not to be a real risk of suffering significant harm in Afghanistan was misunderstood or misapplied – whether constructive failure to exercise jurisdiction – whether comparative analysis rather than consideration of safe place for relocation engaged in – whether constructive failure to exercise jurisdiction by failing to rely upon most recent new information concerning the security situation in Afghanistan – whether decision irrational or illogical because finding of fact not open – whether error in exercise of jurisdiction by misunderstanding or misapplying the meaning of “well-founded fear of persecution” – whether material jurisdictional error.

EVIDENCE – Objection to annexures to affidavit filed on behalf of the applicant – new information – whether new information must be considered by the Authority – where evidence relevant to a ground of review – evidence admissible 

MIGRATION – application for review of a summary dismissal decision made by a Registrar – where the substantive application has no reasonable prospect of success – application dismissed

MIGRATION – Judicial Review –  student visa – cancellation under s 109 of the Migration Act 1958 (Cth) – interpretation and application of reg 2.41 of the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed. 

MIGRATION – Application for judicial review – Student visa – Failure to have a Certificate of Enrolment – Primary criteria cl 500.211 of Regulations – application dismissed.

MIGRATION – application for judicial review of the Administrative Appeal Tribunal’s (Tribunal) decision – whether the Tribunal’s decision was unreasonable – no jurisdictional error established – application dismissed

MIGRATION – review of a decision of the Administrative Appeals Tribunal (Tribunal) – temporary business entry visa – 457 visa program – whether the Tribunal misinterpreted s 140GB of the Migration Act 1958 (Act) – interpretation of the term ‘approved sponsor’ – application dismissed.

MIGRATION - Protection (Class XA) (Subclass 866) visa – application for judicial review – whether Tribunal misconstrued ss 5J of the Migration Act 1958 (Cth) – whether Tribunal failed to consider evidence – not unreasonable - no failure to consider relevant evidence – application dismissed

MIGRATION – application for review of a decision of the Administrative Appeals Tribunal to not grant a protection visa – protection claims made on the basis of economic hardship and marriage – procedural fairness – proper construction of the Applicant’s claims – application dismissed with costs 

MIGRATION – Judicial Review – student visa – Direction No. 69 – whether applicant was a genuine temporary entrant – whether Tribunal failed to consider a claim – whether Tribunal afforded applicant procedural fairness – whether para 12(c) of Direction No. 69 ultra vires – whether Tribunal failed to consider evidence – jurisdictional error not established – materiality – application dismissed.

MIGRATION – Immigration Assessment Authority - Safe Haven Enterprise Visa (class XE) (subclass 790) visa refusal - whether e-mail was given to the Authority within the meaning of s 473HF(1)(a) of the Migration Act 1958(Cth) – no jurisdictional error – application dismissed. 

INDUSTRIAL LAW – application in proceeding for relief in the nature of an anti-suit injunction – where first and second applicants commenced proceeding in this Court  alleging breaches of the Fair Work Act 2009 (Cth) in connection with their employment by the first respondent in a Korean restaurant – where first applicant later commenced proceeding in the County Court of Victoria against the second respondent alleging breaches of a business and loan agreement relating to the establishment and operation of the Korean restaurant – whether Court has power to make orders that would restrain the first applicant from taking steps in the County Court proceeding – whether the two proceedings concern the same justiciable controversy – whether, in circumstances where the County Court proceeding is listed for trial imminently, it would be in the interests of justice to grant injunction – application in proceeding dismissed

FAIR WORK – general protections court application – application filed out of time – where there is no evidence of explanation for delay – where application can not succeed – leave to file outside statutory timeframe refused.

BANKRUPTCY – application by trustee under s.146 of the Bankruptcy Act 1996 (Cth) for distribution of dividends in circumstances where no statement of affairs filed – factors relevant to the exercise of discretion – orders that the distribution of dividends proceed as if bankrupt had filed a statement of affairs as required by the Act – application granted with an order that the Trustee retains their costs of these proceedings.

PRACTICE AND PROCEDURE – BANKRUPTCY – interim application for an extension of time of over 200 days for the filing on an application for review of sequestration order made by a Registrar – trustee appointed – no reasonable explanation for substantial delay – significant prejudice to creditors and trustee – no evidence of solvency – application dismissed

MIGRATION – Administrative Appeals Tribunal – Partner (Provisional) (Class UF) (subclass 309) visa – whether the Tribunal understood and considered applicant’s claims when deciding to exercise its discretion under s 116 of the Act – no jurisdictional error made out – application dismissed.

MIGRATION – Immigration Assessment Authority – refusal of Safe Haven Enterprise Visa (SHEV) (Subclass 790) visa – whether the Authority committed jurisdictional error by failing to apply the well-founded fear test – whether the Authority failed to consider the prevalence of torture in Sri Lanka – no jurisdictional error – application dismissed.

MIGRATION- Immigration Assessment Authority – Safe Haven Enterprise Visa – Whether the Authority erred in its consideration of new information pursuant to s 473DD – The Authority’s reference to “credible or corroborative” information –Imposing a higher standard of satisfaction in considering s 473DD - jurisdictional error established – Application allowed.

MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – where the applicant was unaware of the grounds raised – whether the IAA considered information provided by the secretary – whether the applicant was properly notified of the IAA’s decision – no jurisdictional error established – application dismissed

MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – where the applicant was unaware of the grounds raised – whether failure to consider claims – no jurisdictional error established – application dismissed

MIGRATION – application for judicial review – matter listed for final hearing – no appearance by or on behalf of the applicant – application dismissed 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 – protection visa – whether Tribunal failed to consider claims or documents - no jurisdictional error established – application dismissed.

FAIR WORK – application for costs

BANKRUPTCY – Creditor’s petition – No matter of principle

CONSUMER LAW – Chattel mortgage of motor vehicle (“Vehicle”) – security interest registered under the Personal Property Securities Act 2009 (Cth) – application for orders sanctioning seizure of Vehicle. 

PRACTICE AND PROCEDURE – Costs – Application for costs where the applicant was successful in the substantive proceeding – Where the criteria for costs ordered on an indemnity basis was not satisfied – Costs ordered in accordance with the Court’s scale

INDUSTRIAL LAW – FAIR WORK – on remittal from the Full Court of the Federal Court – lengthy procedural history – initial application filed in 2015 – Letter from company to prospective employees – Full Court found letter contained threats to take adverse action – whether the Letter was sent with an intention to prevent the exercise of workplace right – consideration of chief operating officer’s evidence both at the first trial and re-trial – witness found to be credible – finding that letter not sent for proscribed purpose – section 340 and 343 claims not made out

PRACTICE AND PROCEDURE – procedural issue – whether judgment can be delivered when court advised after judgment reserved the respondent was placed in administration – operation of section 440D of the Corporations Act 2001 (Cth) – liberty to apply

MIGRATION – application for judicial review – protection visa – review of a decision of the Administrative Appeals Tribunal – where the Tribunal made adverse credibility findings – whether the Tribunal’s findings were legally unreasonable – application dismissed 

MIGRATION – application for judicial review – medical treatment visa – review of a decision of the Administrative Appeals Tribunal - whether the Tribunal acted unreasonably in relation to the request for an extension of time – whether the Tribunal’s decision was affected by apprehended bias – no jurisdictional error established - application dismissed.

MIGRATION – Extension of time application – Short delay and satisfactory explanation – no prospects of success – application dismissed

MIGRATION – Whether the Tribunal conducted a proper review – whether the decision of the Tribunal was attended with any irrationality or illogicality – no jurisdictional error established – application dismissed.

MIGRATION – Whether the Tribunal carried out a proper review – whether the Tribunal misdirected itself as to its consideration of the relevant criteria under PIC 4020 – no jurisdictional error established – application dismissed.

MIGRATION – urgent interlocutory application to restrain Minister from removing applicant from Australia – whether serious question to be tried – whether damages an insufficient remedy – where balance of convenience lies – application dismissed.

MIGRATION – urgent interlocutory application to restrain Minister from removing applicant from Australia – whether serious question to be tried – whether damages an insufficient remedy – where balance of convenience lies – application dismissed.

MIGRATION – Whether the Tribunal conducted a proper review – whether the decision of the Tribunal was attended with any irrationality or illogicality – no jurisdictional error established – application dismissed.