Judgments

MIGRATION – judicial review – decision of the Administrative Appeals Tribunal refusing to grant a student visa – where the decision of the Tribunal to not reinstate the application was unreasonable – confirmation decision squashed – matter remitted to the Tribunal - application for judicial review allowed

MIGRATION – application for review of Administrative Appeals Tribunal’s decision – student visa – Public Interest Criterion 4020 – jurisdictional error established.

PRACTICE AND PROCEDURE – application in a proceeding seeking an adjournment of a hearing date to enable the applicant to seek legal representation –application for an adjournment dismissed.

INDUSTRIAL LAW – Contraventions of s 340(1) of the Fair Work Act 2009 (Cth) – Pecuniary penalties and compensation – Whether applicant has suffered compensable loss because of the contravention – Measure of compensation – Compensation and Penalties ordered.

MIGRATION – Protection visa - Protection (Class XA) (Subclass 866) visa – Application for judicial review – Whether Administrative Appeal Tribunal failed to consider a claim that was tolerably clear from the materials – Whether well-founded fear of persecution – No jurisdictional error – Application dismissed.

MIGRATION - Protection (Class XA) (Subclass 866) visa – Application for judicial review – Whether Administrative Appeals Tribunal failed to consider relevant evidence – Whether Administrative Appeals Tribunal failed to give the applicant opportunity to present evidence – Whether well-founded fear of persecution – No jurisdictional error – Application dismissed.

MIGRATION – application for judicial review – Safe Haven Enterprise visa – where Immigration Assessment Authority affirmed decision of first respondent – whether the Authority considered irrelevant country information – whether the Authority failed to consider relevant extracts of country information – found the Authority had regard to relevant country information – found no jurisdictional error – application dismissed.

MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa – Summary dismissal - Application for review of Registrar’s decision – Application for an extension of time – Extension granted – Rule 21.02(2) – Review allowed - Application for judicial review reinstated.

MIGRATION - Elderly female applicant whose only child now lives in Australia, with allegedly no next of kin in country of origin - whether Tribunal erred in considering existence of exceptional circumstances in assessing whether met cl 600.215 of Schedule 2 to the Migration Regulations – where no error even if Court may have concluded differently on facts – Ministerial intervention

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa - Tribunal dismissed application on the basis of applicant’s non-appearance at Tribunal hearing - Whether Tribunal validly invited the Applicant to appear - Whether Tribunal exercised its discretion reasonably – no jurisdictional error established – application dismissed. 

BANKRUPTCY – Application to set aside or stay a bankruptcy notice pending pursuit of separate proceedings – where notice itself is not subject of challenge – whether applicant has a counter claim, set off or cross demand – whether the bankruptcy notice constitutes an abuse of process – whether time for compliance with the bankruptcy notice should be extended – application dismissed.

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – whether the Tribunal failed to investigate the applicant’s claims – whether the Tribunal misconstrued significant harm – whether the Tribunal’s decision was legally unreasonable – jurisdictional error not established – application dismissed with costs 

MIGRATION- Student visa – decision of the Administrative Appeals Tribunal – incorrect information provided by applicant – procedures of Tribunal - unreasonableness - failure to take into account relevant considerations – application dismissed 

MIGRATION- Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider cogent evidence – grounds not particularised- where contradictory evidence-no jurisdictional error-application dismissed 

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – whether the Tribunal misconstrued significant harm – whether the Tribunal failed to investigate the applicant’s claims – whether the Tribunal denied the applicant procedural fairness – jurisdictional error not established – application dismissed with costs. 

MIGRATION – Judicial Review – Administrative Appeals Tribunal – Protection visa – Bangladesh –whether the Tribunal failed to engage in genuine and realistic consideration of the applicant’s claims and/or failed to consider an integer of his claims – whether the Tribunal failed to comply with s 424A or s 424AA to put adverse information to the applicant – whether the Tribunal’s finding that the applicant had not been subject to false cases in Bangladesh lacked rational and logical support and was formed on mere assumptions and/or was irrational, illogical or unreasonable – whether the Tribunal’s breach of s 418 constitutes jurisdictional error – application dismissed 

MIGRATION – Extension of Time Application – where the application for review was 612 days out of time – where the applicant did not provide an adequate explanation for the delay – where prejudice to the public interest caused by excessive delay weighs against grant of the extension of time – where the proposed ground of judicial review has no reasonable prospect of success – application dismissed 

MIGRATION – Application for judicial review of decision made by Administrative Appeals Tribunal – business visa –no jurisdictional error established – application dismissed.

INDUSTRIAL LAW – General protections application – whether there were misleading and deceptive inducements made by the employer – whether the complaints made by the applicant fall within the definition of a complaint or inquiry – whether those complaints satisfy and fall within the definition of workplace right pursuant to section 341(1)(c) – whether there were multiple decision makers involved in the applicant’s dismissal – what was the substantive and operative reason for the applicants dismissal – is that reason protected or prohibited under the Fair Work Act – whether the applicant was dismissed within the probationary period - evidentiary matters to be considered 

INDUSTRIAL LAW - application in a proceeding for default judgment pursuant to r 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – failure to comply with Court orders – failure to file Notices of Address for Service – failure to attend Court  

INDUSTRIAL LAW – GENERAL PROTECTIONS – application for dismissal on the basis of the applicant’s default – where the applicant is self-represented – where the applicant has not complied with orders to file and serve trial evidence or an outline of submissions – where the applicant was not prepared for the final hearing – where the applicant was found to be in default – consideration of factors relevant to exercise of discretion – order made dismissing the proceedings in the applicant’s default 

MIGRATION – judicial review – application to review registrar’s decision – review application filed 16 days out of time – whether extension of time should be granted – unsatisfactory explanation for delay – no arguable case of jurisdictional error – application dismissed 

MIGRATION – Application for judicial review of decision made by Administrative Appeals Tribunal – whether the Tribunal’s reasoning was unreasonable in relation to accepting the applicant’s claim about potential harm – whether the Tribunal acted unfairly – no jurisdictional error established – application dismissed.   

MIGRATION – extension of time – seven days out of time – where related judicial review matter dismissed – no arguable case for jurisdictional error – application dismissed 

MIGRATION – Judicial review – Temporary Graduate visa – English language requirement – minimum overall test score met but test not undertaken within three years prior to application – invitation to impermissibly engage in merits review of the delegate’s decision – allegations of procedural unfairness – error found but not material – jurisdictional error not established – application dismissed.

MIGRATION - Safe Haven Enterprise Visa (Class XE) (Subclass 790) visa – grounds of review invite the Court to undertake impermissible merits review – allegation of illogicality, unreasonableness in the decision under review – no breach of s 473 DD of the Migration Act 1958 (Cth) – no jurisdictional error established –  application dismissed with costs 

MIGRATION – application for judicial review – whether Tribunal correctly considered subreg 2.72(10)(f) of the Migration Regulations 1994 (Cth) – meaning of the word ‘genuine’ – whether open to the Tribunal to consider financial circumstances of the nominator – no jurisdictional error established – application dismissed 

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – whether the Tribunal was affected by apprehended bias – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to take evidence into account – no jurisdictional error established – application dismissed with costs  PRACTICE AND PROCEDURE – APPLICATION FOR AN ADJOURNMENT AND REFERRAL FOR LEGAL ASSISTANCE – where the applicant took recent steps to seek legal assistance – where there is no certainty of legal representation – where a party has no right to apply for a referral for legal assistance – where the discretion to adjourn the hearing or refer the applicant for legal assistance is not enlivened 

MIGRATION – student visa – decision of the Administrative Appeals Tribunal – treatment of prejudicial material – apprehended bias – where fair-minded lay observer might consider Tribunal affected by subconscious bias – futility – application succeeds – writs issued. 

MIGRATION LAW – Where the Authority made findings contrary to the evidence before it – where no reasonable decision maker could have made such findings – where a different decision could have been arrived at had the Authority not erred – jurisdictional error established – application granted.   

PRACTICE AND PROCEDURE – Application to transfer proceeding to the Federal Court of Australia – relevant considerations.  

MIGRATION – Whether Immigration Assessment Authority decision is attended by reasonable apprehension of bias – whether Authority failed to consider claims – whether error in relation to treatment of data breach – whether IMMI17/015 is invalid insofar as it purports to apply to the applicant.

MIGRATION – Whether Immigration Assessment Authority failed to engage an active intellectual process resulting in unreasonable, illogical and irrational credibility findings. 

MIGRATION – Whether the Tribunal erred in failing to address and make findings in respect of each identified possible contravention of a provision of the Act as set out in a Notice of Intention to Consider Cancellation of a visa – no jurisdictional error established – application dismissed.  

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa to applicant from Iran – Direction No 84 given by Minister under s 499 of Act – obligation of Tribunal pursuant to Direction No 84 to take into account DFAT country information assessment where relevant – Tribunal did not take into account or consider most recent DFAT country information assessment concerning Iran – whether information in DFAT assessment was relevant to Tribunal’s decision – whether any failure by Tribunal to comply with Direction No 84 and s 499 of Act was material – whether Tribunal’s decision could realistically have been different if Tribunal had considered DFAT assessment. 

BANKRUPTCY – Costs – application pursuant to order previously made that costs of applicant be set or be referred for taxation – applicant’s costs set.

INDUSTRIAL LAW – alleged breach of general protections – workplace right – adverse action – onus – whether workplace right to a safe workplace or a safe system of work – whether workplace right to workers compensation – whether a workplace right to the provision of medical assistance – whether workplace right to payments for medical treatment before acceptance of liability by workers compensation insurer – whether workplace right to be provided with light duties - whether coercion – whether discouragement constitutes coercion – whether undue influence or pressure – whether false or misleading misrepresentation made knowingly or recklessly – whether discrimination on basis of race, disability or national extraction – whether coercion concerning allocation  of particular duties to employee – whether consultation concerning change to regular roster or a change to ordinary working hours.

PRACTICE AND PROCEDURE – Application to reopen proceedings and file further materials – consideration of relevant factors – allegations of collusion and corruption – alleged conflicts of interest of respondent’s barrister, barrister’s parents and judicial officers – allegations of serious misconduct against respondent’s barrister – allegations irrelevant and scandalous – some material previously struck out – length of hearing – finality of litigation

MIGRATION – student visa – application for review of a decision of the Administrative Appeals Tribunal – whether the Tribunal was unreasonable – whether the Tribunal erred in affording procedural fairness – no jurisdictional error established – application dismissed.

INDUSTRIAL LAW – FAIR WORK – failure to comply with a compliance notice – application for imposition of pecuniary penalties – consideration of factors relevant to penalty – pecuniary penalties ordered

INDUSTRIAL LAW – application for default judgment against company and its sole director – default judgment – declarations made.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant bridging visa – whether earlier protection visa application finally determined – whether earlier application for judicial review of protection visa refusal decision not finally determined – application dismissed 

MIGRATION - judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visas – whether Tribunal erred in not accepting applicant’s claim that Colombian authorities were unable or unwilling to protect applicant – whether Tribunal overlooked or failed to consider items of information in documents Tribunal otherwise considered – whether findings of Tribunal supported by probative evidence – whether Tribunal assessed significance of findings of inconsistencies in applicant’s evidence – no jurisdictional error established - application dismissed 

MIGRATION – related applications for judicial review of decisions of the Administrative Appeals Tribunal – where the Tribunal’s finding that a claim of mistaken identity was unsupported overlooked support for the claim in Australian Border Force records before the Tribunal – whether findings regarding inconsistencies were open – whether the Tribunal considered other evidence that was before it – materiality – writs issued 

MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant applicant protection visa – no point of principle – application dismissed 

MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed. 

MIGRATION – Administrative Review Tribunal – where there were significant discrepancies in the applicant’s evidence –  adverse credibility findings – where the grounds of judicial review do not reveal jurisdictional error – no jurisdictional error established – application  dismissed with costs

MIGRATION – Administrative Appeals Tribunal – cancellation of a Spouse (subclass 820) visa and Bridging A (subclass 010) visa – where the applicant had previous criminal conviction charges – suppression order made in regard to a  s 359A letter – whether the Tribunal failed to comply with the requirements of s 359A –  whether the Tribunal denied the applicant an opportunity for a physical hearing –  no jurisdictional error made out – application dismissed with costs. 

MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal failed to give active consideration to clearly articulated claims – whether the Tribunal fell into jurisdictional error by adopting legally unreasonable reasoning in relation to its findings regarding the applicant’s credibility – both grounds of judicial review have no merit – application dismissed 

MIGRATION – Administrative Appeals Tribunal – Prospective Marriage (Class TO) (Subclass 300) visa – whether the Tribunal’s reasoning was illogical, irrational or unreasonable – where there was inconsistencies in the applicant’s evidence to the Tribunal -adverse credibility findings made – no jurisdictional error established – application dismissed with costs.  

PRACTICE AND PROCEDURE – application for interlocutory injunction to restrain first respondent from unlawfully terminating the applicant from his employment – strength of prima facie case – balance of convenience – nature and terms of the applicant’s employment in dispute – substantial dispute about the status quo – applicant led no evidence about the nature of his employment with the first respondent – no sufficient prospects of success to warrant the preservation of the status quo – application for interlocutory relief dismissed