Judgments

MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – citizens of Sri Lanka – refusal of Safe Haven Enterprise visa – whether constructive failure to exercise jurisdiction – whether proper formation of required state of satisfaction – whether illogicality or lack of an intelligible justification – whether denial of procedural fairness in failing to consider a claim or substantial argument – whether material jurisdictional error

MIGRATION - Administrative Appeals Tribunal – Visitor Visa (class FA) (subclass 600) refusal – whether time taken to make decision constitutes jurisdictional error – no error made out – application dismissed.

PRACTICE AND PROCEDURE – adverse action – where the hearing is complete but judgment yet to be delivered – where respondent sought leave to file application in a proceeding to re-open a case – where respondent seeks to admit further affidavit evidence in response to the applicant’s amended statement of claim  – whether leave should be granted in the interests of justice – whether re-opening the case will cause embarrassment or prejudice – where interlocutory application determined on the papers – application to re-open case allowed – costs reserved

MIGRATION – application for review of a decision by the Administrative Appeals Tribunal – interpretation of IMMI 15/062 – Shine v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FedCFamC2G 132 – materiality and futility – application dismissed

MIGRATION – approval sought of nominated position under reg 5.19 of the Migration Regulations 1994 (Cth) under the Temporary Residence Transition Stream – allegation that Tribunal misunderstood reg 2.72(15)(c) of sch 2 of Migration Regulations 1994 (Cth) as to determination of the annual market salary rate in accordance with legislative instrument IMMI 18/033 – no jurisdictional error – application dismissed

MIGRATION – application for Employer Nomination (Permanent) (Class EN) visas – the Tribunal on review refused to approve the nomination and accordingly refused to grant the applicants visa – no jurisdictional error in the Tribunal’s decision not to approve the employer nomination – application dismissed

PRACTICE & PROCEDURE – where orders made requiring the respondents to enter an appearance and file a defence – where the respondents failed to comply with orders of the Court – where it was appropriate for judgment to be entered in default – orders accordingly.

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA misapplied s 473DD of the Migration Act 1958 (Cth) – application dismissed

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA failed to give proper consideration to the review material – whether the IAA failed to consider the applicant’s claims by reference to the reasonably foreseeable future and related submissions – whether the IAA made unreasonable findings or unreasonably failed to exercise its power to invite new information – application dismissed

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA erred in its application of the real chance test in respect of the reasonably foreseeable future, or did not take into account aspects of the country information in considering the reasonably foreseeable future – whether the IAA erred in its construction and application of the requirements of s 473DD of the Migration Act 1958 (Cth) – application succeeds 

INDUSTRIAL LAW – breaches of civil remedy provisions of the Fair Work Act 2009 (Cth) – declarations of breach – imposition of pecuniary penalties – relevant considerations.

INDUSTRIAL LAW – Fair Work Act 2009 (Cth) - Compliance notice – contravention.

MIGRATION – application for Employer Nomination (Permanent) (Class EN) visas – the Tribunal on review refused to approve the nomination and accordingly refused to grant the applicants visa – no jurisdictional error in the Tribunal’s decision not to approve the employer nomination – application dismissed

MIGRATION – judicial review – Student (Temporary) (class TU) (subclass 500) visa – cancellation decision for non-compliance with condition 8202 – whether the Tribunal’s decision was vitiated by jurisdictional error on the ground of legal unreasonableness in considering whether to cancel the visa – whether the Tribunal misunderstood condition 8202(2)(a) – no jurisdictional error disclosed – application dismissed

MIGRATION – judicial review – Protection (Class XA) (subclass 866) visa – refusal decision – whether the Tribunal’s decision was affected by jurisdictional error on the ground of legal unreasonableness in relation to findings as to the credibility of the applicant – whether the Tribunal made an unwarranted assumption – no jurisdictional error disclosed – application dismissed

MIGRATION – judicial review – application for review to the Tribunal withdrawn by the applicant – issue as to the Tribunal’s power to accept a withdrawal of an application for review where no express legislative provision to permit the applicant to withdraw an application or for the Tribunal to accept a withdrawal – common law principle that unless constrained by statutory considerations effectively abrogating or fettering the right to unilaterally withdraw, an applicant has an inherent right to withdraw – common law applies to permit applicant to validly withdraw – no jurisdictional errors disclosed – application dismissed

MIGRATION – judicial review – allegation that the application for the protection visa was invalid by virtue of fraud of the migration agent – unrepresented litigant – explanation by court of practice and procedure as to adjournment application and requirement to adduce evidence as to alleged fraud – applicant sought adjournment and filed evidence – no relevant fraud stultified the delegate’s decision under s 65(1) of the Migration Act 1958 (Cth) – application dismissed

MIGRATION – approval sought of nominated position under reg 5.19 of the Migration Regulations 1994 (Cth) under the Temporary Residence Transition Stream – allegation that Tribunal misunderstood reg 2.72(15)(c) of sch 2 of Migration Regulations 1994 (Cth) as to determination of the annual market salary rate in accordance with legislative instrument IMMI 18/033 – no jurisdictional error – application dismissed

MIGRATION – cancellation of a Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence or claims – whether the Tribunal’s decision was legally unreasonable – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal’s decision was affected by bias – remittal futile in any event – no jurisdictional error – application dismissed.

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

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

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.

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – reinstatement application – matter reinstated – extension of time application – insignificant delay – inadequate explanation – no prejudice – no arguable case of jurisdictional error – extension of time refused.

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – allegation of agent misconduct and/or fraud on the Tribunal raised at first hearing before this Court – applicant given an opportunity to produce evidence in relation to the agent’s alleged misconduct – matter listed for a further hearing in relation to the allegation of fraud – 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 – Temporary Protection visa – decision of the then Immigration Assessment Authority – whether the IAA failed to consider the applicant’s protection claim or an integer of that claim – jurisdictional error established – writs issued.

MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – extension of time previously granted – hearing of substantive application – whether the Tribunal erred by denying the applicant procedural fairness in respect of its obligations under s 360 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

BANKRUPTCY –  creditor’s petition – challenge to service of bankruptcy notice – where applicant creditor relies on statutory deeming provisions contained in ss 28A(1)(a)(ii) and 29(1) of the Acts Interpretation Act 1901 (Cth) – where envelope containing bankruptcy notice recorded the incorrect postcode but the correct street and suburb – where the incorrect postcode had been recorded by the respondent on documents filed in court proceedings - whether bankruptcy notice sent to the address of the place of residence of the person last known to the person serving the document – whether envelope containing the bankruptcy notice “properly addressed” – whether applicant able to establish service independently of the deeming provisions – no proof of service – creditor’s petition dismissed – sequestration order set aside

MIGRATION – judicial review – decision of Administrative Appeals Tribunal - whether Tribunal failed to consider and make findings concerning claim by applicant – whether error in Tribunal’s findings concerning inconsistencies and discrepancies in applicants’ evidence -no jurisdictional error established – application dismissed.

MIGRATION – judicial review – extension of time application - extension of time refused – costs ordered.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal - whether applicant satisfied clause 500.212 – whether Tribunal made typographical errors in its decision – no jurisdictional error established – application dismissed.

MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal misconstrued or misapplied cl 11(b) of Direction 69 – whether the Tribunal’s conclusions were unreasonable – jurisdictional error established – writs issued.

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 — judicial review — student visa — Ministerial Direction No. 69 —  genuine temporary entrant criterion — procedural fairness — 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

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.

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

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.

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 – 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 – 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

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 – 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 – 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 - 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 – 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 – 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 – Application for judicial review – Student visa – Failure to have a Certificate of Enrolment – Primary criteria cl 500.211 of Regulations – 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 review of a summary dismissal decision made by a Registrar – where the substantive application has no reasonable prospect of success – application dismissed