Judgments

MIGRATION – oral application for an adjournment of the hearing – oral application dismissed.

ADMINISTRATIVE LAW – application for orders of review under the Administrative Decisions (Judicial review) Act 1977 (Cth) - where the International Bureau of the World Intellectual Property Organisation notified the Registrar of Trade Marks (Registrar) of a request (IRDA) that protection resulting from the international registration of the applicant’s trade mark under the Protocol Relating to the Madrid Agreement concerning the International Registration of Marks, as signed at Madrid on 28 June 1989, be extended to Australia – where on 23 February 2023 a delegate of the Registrar accepted the IRDA pursuant to reg 17A.24 of the Trade Marks Regulations 1995 (Cth) (Regulations) – where in April 2023 the owner (Opponent) of three trade marks registered under the Trade Marks Act 1995 (Cth) (Act) filed a notice of opposition in relation to the IRDA – where in February 2024 the Opponent requested the Registrar to exercise the power conferred by reg 17A.27 to revoke the acceptance of the IRDA - where on 4 March 2024 a delegate of the Registrar notified the applicant of an intention to revoke the acceptance of the IRDA – where on 4 May 2024 the applicant provided submissions in support of the contention that it was not reasonable in all of the circumstances for the Registrar to revoke the acceptance of the IRDA – where on 7 May 2024 a delegate of the Registrar notified the applicant that given there is an opposition process underway  revocation of the acceptance of the IRDA would not be reasonable (May 7 position) – where on 3 June 2024 a delegate of the Register notified the applicant that the acceptance of the IRDA must be cancelled and was cancelled purportedly pursuant to reg 17A.27 of the Regulations – whether Registrar owed a duty of procedural fairness to the applicant – whether any such duty of procedural fairness extended to giving the applicant notice that the Registrar intended to renounce the May 7 position and that it would not be reasonable to revoke the acceptance of the IRDA and instead determine that it was reasonable in al of the circumstances to revoke the acceptance of the IRDA – whether the Registrar’s purported exercise of the power under reg 17A.27 to revoke the cancellation of the IRDA resulted from an improper exercise of power or error of law – the Registrar afforded the applicant procedural fairness in relation to the decision to revoke the acceptance of the IRDA, the discharge of the duty to afford procedural fairness not requiring the Registrar to give notice that the Registrar intended to renounce the 7 May position – the decision to revoke acceptance of the IRDA did not result from any improper exercise of power or from an error of law – whether assuming the applicant established any of the grounds for review relief should be withheld on the ground that Parliament manifested an intention that any challenges in relation to the exercise of powers in connection with an IRDA be restricted to the decision that results in a trade mark that is the subject of an IRDA being given protection in Australia – discretion to grant orders should be withheld – application dismissed

PRACTICE AND PROCEDURE -where a statement of claim was not filed in accordance with orders of the Court – proceedings to be dismissed in their entirety - costs in the matter not sought.

BANKRUPTCY – application for review of Registrar’s decision to dismiss application for sequestration order – de novo hearing of creditor’s petition – whether creditors petition claims debt which exceeds statutory minimum – where criteria for issue of bankruptcy notice requires judgment or orders having been obtained against debtor for greater than statutory minimum – where criteria for creditor’s petition requires outstanding debt in excess of statutory minimum – criteria in ss 41 and 44 of Bankruptcy Act 1996 (Cth) discussed – where creditor’s petition does not have to rely on same debt as bankruptcy notice - where additional debts incurred prior to act of bankruptcy can be included creditor’s petition – conditions for making sequestration order satisfied

CONSUMER LAW – alleged unconscionable conduct by real estate property manager – conduct alleged not established – finding that conduct was professional and businesslike – application dismissed

INDUSTRIAL LAW – Practice and Procedure – determination of notices of objection to categories of documents called by subpoenas the applicant caused to be issued

MIGRATION – application for judicial review of decision of the former Immigration Assessment Authority -  where Authority rejected claim based on the failure of the applicant to raise the claim in a series of interviews, including a screening interview and an arrival interview – whether it was unreasonable for the Authority to have recorded adverse finding without first exercising the power under s 473DC of the Migration Act 1958 (Cth) to get information from the applicant –  whether case can be distinguished from Minister for Home Affairs v AYJ17- no jurisdictional error  – application dismissed with costs

MIGRATION – whether Court should grant orders not to adduce information under claim of public interest immunity – whether Court should grant orders not to adduce third party information not relevant to the proceedings – orders granted

MIGRATION – Judicial review application – decision of the Immigration Assessment Authority – refusal to grant Safe Haven Enterprise visa – citizen of Vietnam of the Catholic faith – claims of persecution on the basis of religion, Australian Government data breach and asylum seeker status – single unparticularised ground of review –whether unreasonableness – whether interpreter error – whether jurisdictional error otherwise – whether jurisdictional error

PRACTICE AND PROCEDURE – Application for leave to institute proceedings following vexatious litigant orders - – proposed proceedings dismissed  

BANKRUPTCY AND INSOLVENCY – letter of request to foreign court exercising jurisdiction in bankruptcy to act in aid of and be auxiliary to the Federal Circuit and Family Court of Australia – directions made for assistance of foreign court. 

INDUSTRIAL LAW – assessment of a pecuniary penalty for contravention of s 716(5) of the Fair Work Act 2009 (Cth) – liability conceded – dispute regarding appropriate penalty to be imposed – penalty determined

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA unreasonably failed to exercise, or consider exercising, power under s 473DC of the Migration Act 1958 (Cth) – whether the IAA’s reasoning was otherwise open on the material before it – application succeeds

MIGRATION – Administrative Appeals Tribunal – affirmed refusal of protection visa (class XA) (subclass 866) – whether risk and fear of significant harm under s 36(2A) misconstrued – whether clear particulars of information given to applicant under s 424A read with s 424AA – application dismissed. 

MIGRATION – Administrative Appeals Tribunal Permanent Protection (class XA) (subclass 866) visa) - grounds of judicial review invite the Court to engage in impermissible merits review – no jurisdictional error established – application dismissed.  

MIGRATION -Administrative Appeal Tribunal – decision to affirm refusal of protection visa (class XA) (subclass 866) – protection claim on the basis of homosexual relationship – impermissible merits review - application dismissed.  

MIGRATION – application for judicial review – student visa – review of a decision of the Administrative Appeals Tribunal (Tribunal) – whether the Tribunal failed to consider relevant material – whether the Tribunal failed to give the material proper weight – no jurisdictional error found – application dismissed

INDUSTRIAL LAW – Fair Work – application for default judgment pursuant to rule 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – applicant seeking declaration of contravention of the Fair Work Act 2009 (Cth) by reason of failure of first respondent to comply with compliance notice – applicant seeking declaration that second respondent involved in the contravention and liable as an accessory – acts of default established – statement of claim establishes basis for declarations – where applicant seeks orders that would require first respondent to make payment to employee of specified amount identified as underpayment – where question of relief to be addressed at hearing on penalty 

MIGRATION -  review of Administrative Appeals Tribunal decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed 

MIGRATION – Student visa – genuine temporary entrant criterion – whether the Tribunal failed to engage with the evidence – whether the finding that the applicant did not have strong ties to her home country on the basis of a lack of employment prospects and the applicant’s economic circumstances was illogical – whether finding that the applicant’s courses of study lacked value to her future was illogical – 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 made illogical or unreasonable findings based on unwarranted assumptions – no jurisdictional error – application dismissed. 

MIGRATION – Judicial Review – Student Visa – GTE Criteria – Where the Tribunal considered that the applicant’s knowledge that relatives obtained citizenship after holding a temporary visa was not an irrelevant consideration having regard to the subject matter, scope, and purpose of cl 500.212(a) and Direction No. 69 – Application dismissed.   

MIGRATION – Regional Employer Nomination visa – decision of the 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 rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)  

MIGRATION – Medical Treatment (Visitor) (Class UB) subclass 602 visa – decision of the Administrative Review Tribunal – no appearance by or on behalf of the applicant – oral application to dismiss pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 – application dismissed with costs  

BANKRUPTCY – application for review of Registrar’s decision to dismiss substantive application by self-executing order – where applicant did not wholly meet filing deadlines imposed by Registrar’s procedural orders –order dismissing the proceedings be set aside.  

MIGRATION – Judicial review application – decision of Administrative Appeals Tribunal – citizen of Vietnam - refusal of Partner (Temporary) (Class UK) visa – whether consideration given to joint responsibility for the care and support of the children – whether new evidence able to be put before Court – whether existence of unborn child relevant to nature of persons’ commitment to each other and to whether relationship a long term one – whether Tribunal required to consider best interests of the child – whether Tribunal required to have regard to requirements in international convention concerning the best interests of the child – whether case concerning international convention put before the Tribunal – whether international convention obligations enacted in domestic law – whether proposed new evidence indicative of fraud on the Tribunal – whether fraud on the Tribunal – whether jurisdictional error otherwise - whether material jurisdictional error – writs issued.

MIGRATION – application for protection visa – review of the decision of the Administrative Appeals Tribunal – whether the Tribunal properly considered the Applicant’s claim to fear harm on account of her status as a single woman – whether the Tribunal properly considered the Applicant’s claim to fear harm on account of her status as single mother – no jurisdictional error established – application for review dismissed.  

MIGRATION – Judicial review application - decision of the Immigration Assessment Authority – citizen of Vietnam of the Catholic faith – claims of persecution on the basis of religion, Australian Government data breach and asylum seeker status – single unparticularised ground of review – whether jurisdictional error otherwise – whether material jurisdictional error. PRACTICE AND PROCEDURE – Application for adjournment – whether right to legal representation – other factors – length of time in the Court’s lists – further delay before hearing – backlog of unheard cases – length of time in which legal representation might have been obtained – where proper explanation of processes and nature of proceedings provided at earlier directions hearing.

MIGRATION – adjournment request refused – where medical evidence in support of adjournment request unsatisfactory – dismissal for non-appearance – costs ordered 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal – student (Class TU) (Subclass 500) visa – cl 500.212 – whether applicant satisfied genuine temporary entrant criterion – whether Tribunal overlooked matter in manner which involved jurisdictional error – no jurisdictional error established – application dismissed 

MIGRATION – application for reinstatement – where the applicant failed to appear at hearing – where there was no reasonable excuse for the non-appearance – where the Court’s discretion to reinstate the case is not enlivened – application for reinstatement refused – application for review of Administrative Appeals Tribunal dismissed 

MIGRATION – student (subclass 500) visa – visa refused – breach of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) – decision of the Administrative Appeals Tribunal to affirm delegate’s decision – judicial review – whether Tribunal denied the applicant procedural fairness – whether Tribunal failed to consider relevant facts – whether Tribunal applied the wrong legal test –Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed

CONSUMER LAW – Application for order under s. 101 of the National Credit Code – Where Vehicle under chattel mortgage was used for business purposes – Matter arises in relation to the Personal Property Securities Act 2009 – No appearance from Respondent – Declaration that Applicant entitled to take possession of the vehicle – Declaration that Applicant may enter premises and seize vehicle 

MIGRATION – costs – where application for judicial review was dismissed – where the Minister sought costs – where the applicants contested Minister’s proposed costs on the basis of their impecuniosity and that they were unaware they would be liable for costs in the event that the application was dismissed

MIGRATION – Student (Subclass 500) visa – decision of Administrative Appeals Tribunal – where delegate determined that applicant was not a genuine temporary entrant – where applicant not enrolled in a course of study at the time of Tribunal decision – where Tribunal found the applicant did not satisfy the primary criterion pursuant to cl 500.211 – no jurisdictional error – application dismissed 

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision not to grant the applicant a protection visa – where the applicant’s grounds are directed to the merits of the Tribunal decision – no jurisdictional error – application dismissed. 

INDUSTRIAL LAW – Application for leave under r. 9.04 for corporation to carry on proceeding otherwise than by a lawyer – Where director of corporation proposes to carry on a proceeding for corporation – Effectiveness of representation – Financial position of the corporation – Leave to carry on a proceeding otherwise than by a lawyer not granted 

MIGRATION – student visa – decision of the Administrative Appeals Tribunal – whether the applicant could satisfy requirements in condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) – consideration of whether the Tribunal erred in its decision to proceed under s 362B(1A)(a) of the Migration Act 1958 (Cth) –consideration of DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 – no jurisdictional error  – application dismissed with costs  

MIGRATION – judicial review – jurisdictional error –illogicality or irrationality – failure to consider relevant consideration – misapplying paragraph 12(c) of Direction 69 – failed to comply with s 360 of the Migration Act 1958 (Cth)  – sch 2, cl 500.212 Migration Regulations 1994 (Cth) – genuine temporary entrant criterion – student visa –Direction 69 required personal ties to be considered in reaching a state of satisfaction in assessing the genuine temporary entrant criteria – jurisdictional error established on illogical or irrational ground

MIGRATION – protection visa – non-appearance by or on behalf of the application – application dismissed.

MIGRATION – protection visa – application for judicial review - non-appearance by or on behalf of the applicant - application dismissed.  

MIGRATION – practice and procedure – judicial review of decision of Administrative Appeals Tribunal refusing grant of Business Skills visa – separate application in Federal Court seeking relief under s 39B of the Judiciary Act – where applications in relation to same Tribunal decision – where applications relate to different exercises of power – application for transfer of judicial review proceeding to Federal Court – mandatory consideration of matters relevant to the transfer – whether transfer in the interests of the administration of justice – application for transfer granted 

MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise visa – consideration of whether the Authority made a reasonable finding in respect of relocation within Pakistan – consideration of the applicant’s claims as made to the Authority and the material before it – findings by the Authority open to be made – no jurisdictional error – application dismissed

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal affirming delegate’s decision not to grant a visa – application for judicial review filed out of time – extension of time application –whether there was an adequate explanation for significant delay – whether there was an arguable case of jurisdictional error – extension of time application refused with costs 

MIGRATION – protection visa – application for extension of time to review decision of AAT–whether proper explanation of delay - consideration of the interest of the administration of justice –decision-maker’s duty to make inquiries – procedural fairness – application for extension of time dismissed

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority affirming a decision not to grant the applicant a protection visa – whether the Authority made illogical, irrational or unreasonable findings based on unwarranted assumptions – no jurisdictional error – application dismissed.   

MIGRATION - Temporary Protection (class XD) (subclass 785) visa - whether there was evidence before the Tribunal to support their findings – no jurisdictional error made out – application dismissed. 

MIGRATION - Administrative Appeals Tribunal (AAT) – Higher Education Sector (subclass 573) visa – visa cancellation due to breach of condition 8202(2)(a) – whether the AAT heard and considered the applicant’s evidence – application dismissed. 

FAIR WORK – alleged adverse action - dismissal –probationary review – withholding of termination payments- presumption of adverse action rebutted by the respondent - no contravention of s 340, s 352 of the Fair Work Act 2009 (Cth) – applicant withheld company property –– contravention of s44 in two ways in relation to s117 - whether it is appropriate to make declarations order an apology - compensation order in the amount of $10,000- no civil penalty hearing considered appropriate – amended application otherwise dismissed 

MIGRATION – Urgent interlocutory application to restrain removal from Australia – where Applicant seeks to remain in Australia to pursue review of a decision by the Administrative Appeals Tribunal to cancel his student visa – whether prima facie case exists – HELD application for injunction refused.