Judgments

Division 2 - General federal law

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MIGRATION – employer nomination visa – nomination refused – application dismissed for failure to appear-application for reinstatement – applicant not longer wishes to pursue reinstatement –reinstatement dismissed with further order as to fixed costs

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BANKRUPTCY – Costs follow the event – Lump sum costs order – Costs on a standard basis – 25% discount to actual costs – Costs to be costs of the administration of the bankruptcy with the priority accorded by the Bankruptcy Act 1966 (Cth)

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FAIR WORK – PENALTY – Contravention of minimum standards – Specific and general deterrence – Lack of corrective action – Small business – Ignorance not ameliorating factor – Penalty paid to applicant

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MIGRATION – Administrative Appeals Tribunal – protection visa (class XA) (subclass 866) – whether the Tribunal misconstrued the risk and fear of significant harm – whether the Tribunal’s obligations under s 424A and s 424AA were enlivened – jurisdictional error not made out - application dismissed. 

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MIGRATION – Administrative Appeals Tribunal – protection visa (class XA) (subclass 866) - whether the Tribunal misconstrued the risk and fear of significant harm in s 36(2A) – whether the Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant – whether the Tribunal acted outside jurisdiction – whether the Tribunal failed to comply with requirements under s 424A – no error jurisdictional error made out – application dismissed.

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MIGRATION – Safe Haven Enterprise Visa – decision of the Immigration Assessment Authority – whether failure to consider claims – no jurisdictional error established – application dismissed

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FAIR WORK - Whether employee or independent contractor – accessorial liability – unchallenged evidence of applicant –entitlements pursuant to modern award

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INDUSTRIAL LAW – Termination of employment – whether applicant made complaint – whether applicant terminated because he was absent while ill  – where respondent discharged onus

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MIGRATION – Application for judicial review – matter listed for final hearing – applicant’s solicitor unable to locate the applicant to obtain instructions – whether the applicant has failed to prosecute the proceedings with due diligence – application dismissed pursuant to r 13.05(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

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MIGRATION – Application for review of a Registrar’s decision to summarily dismiss an Application and order that the Applicant pay the First Respondent’s costs – Substantive Application has no reasonable prospects of success – order for costs

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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

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MIGRATION – Application for review of a Registrar’s decision – review Application filed out of time – Registrar’s decision to summarily dismiss Application and the Applicant to pay the Minister’s costs – no reasons given for delay in applying for review or reasons why such a review is sought – whether an extension of time should be granted for review of the Registrar’s decision – extension of time denied – substantive Application has no reasonable prospects of success – order for costs

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MIGRATION – Judicial review application – decision of Administrative Appeals Tribunal affirming decision to refuse subclass 457 (Temporary Work (Skilled)) visa – where sponsor’s visa nomination application refused – whether nominee had standing to challenge decision relating to nominator’s application for approval as a standard business sponsor – whether remittal futile – application dismissed – costs ordered

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BANKRUPTCY – section 139ZQ notice -statutory requirements made out – charge registered-  sale of property - judgment in the sum of the debt under s139ZQ

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CONSUMER LAW – where the applicant trustee sought delivery up to him of possession of a Range Rover motor vehicle – where injunctions ordered to maintain the status quo pending the hearing of competing claims – where orders made accordingly.

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INDUSTRIAL LAW – Practice and procedure – application for interim relief to restore applicant employee to roles from which she alleges she had been impermissibly removed and to permit the applicant to work from home – balance of convenience against granting interim relief – application for interim relief dismissed

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FAIR WORK - late receipt of evidence – adjournment granted - interests of the administration of justice – refixed for final hearing

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PRACTICE AND PROCEDURE – Application for leave to amend a statement of claim – application granted.

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INDUSTRIAL LAW – Assessment of pecuniary penalties for contraventions of s 45 and s 44 of the Fair Work Act 2009 (Cth).

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INDUSTRIAL LAW – Application in a proceeding for default judgment pursuant to r 13.05 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 file documents – cumulative failure to defend proceedings with due diligence

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INDUSTRIAL LAW – Practice and procedure – application for default judgment on causes of action alleging contraventions of s 716(5) and s 536(1) of the Fair Work Act 2009 (Cth) (FW Act) – default judgment granted – orders made having the effect of requiring the respondent to comply with a compliance notice that had been issued pursuant to s 716(2) of the FW Act – assessment of pecuniary penalties for the respondent’s contraventions of s 716(5) and s 536(1) of the FW Act.

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 MIGRATION – Administrative Appeals Tribunal – Student visa (class TU) (subclass 500) refusal – whether reasonable apprehension of bias exists – application upheld.

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MIGRATION – Application for reinstatement – Student visa –  Where Applicant’s judicial review application was dismissed for non-attendance – Where Applicant did not provide adequate explanation for non-attendance – Whether it is in the interests of justice to reinstate the application – Where the proposed grounds of the substantive review    application not reasonably arguable – Application for reinstatement dismissed

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MIGRATION – Where the Tribunal relied upon a failure to reply to a request for information – where the request concerned personal records of the second applicant – where both applicants had a history of participation in the review process – where the Tribunal’s exercise of discretion was premised upon a misunderstanding on the part of the Tribunal that an authorised recipient had been appointed in respect of the second applicant – whether the exercise of discretion was legally unreasonable – whether the Tribunal’s decision was otherwise affected by relevant error – application succeeds

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MIGRATION – judicial review – jurisdictional error –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

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MIGRATION LAW –  Protection visa application –  Review of a Tribunal Decision to refuse a protection visa application – Where the Tribunal was satisfied that there were effective protection measures available in Malaysia – Where the Tribunal was satisfied that Applicant could obtain protection from an authority in Malaysia such that there would not be a real risk of significant harm – Grounds not proved – Application dismissed

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MIGRATION – Protection Visa – Where the Authority did not consider new information – Whether the Authority made a jurisdictional error by imposing a higher standard for considering new information than s. 473DD(b)(ii) prescribed – Where the rejection of the new information as contrived as a matter of substance was a finding that the new information was not credible – Application dismissed

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MIGRATION –judicial review of a decision of the Administrative Appeals Tribunal – refusal to grant a Partner (Temporary) (Class UK) visa – where applicant filed notice to produce – where applicant sought to satisfy visa criteria through claim of non-judicially determined family violence – where applicant failed to meet prescribed evidentiary requirements – no jurisdictional error – application dismissed

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PRACTICE AND PROCEDURE – application for substituted service – consideration of whether orders for substituted service ought be made– orders made for substituted service

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PRACTICE AND PROCEDURE – application for substituted service – consideration of whether orders for substituted service ought be made– orders made for substituted service.

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MIGRATION –bridging E (class WE) bridging E general, subclass 050 visa cancellation – application seeking constitutional writ of Ministers decision – no jurisdictional error - application dismissed

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MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) - protection visa – applicant unrepresented - whether the Tribunal misconstrued the definition of significant harm – whether the Tribunal failed to consider the applicant’s claims against the “Convention definition” – no jurisdictional error established – application dismissed.

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MIGRATION – Application for reinstatement of an application for extension of time – where applicant also proposes to seek leave to amend substantive grounds of review if application reinstated – where original substantive grounds lack reasonable prospect of success but proposed amended grounds do not – practical considerations and overarching purpose – proceedings reinstated on terms, with self-executing orders in event amendment not made

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MIGRATION – dismissal for non-appearance

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MIGRATION – application for an extension of time to seek judicial review of a decision of the Administrative Appeals Tribunal – extensive delay only partially explained – no specific prejudice to respondent – merits of proposed application not sufficiently strong to justify extensive delay – application for an extension of time dismissed.

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MIGRATION – application for judicial review of a decision made by the Immigration Assessment Authority – where the Authority failed to consider new information against the requirements of s 473DD of the Migration Act 1958 (Cth) – whether that failure was material – whether the Authority asked itself the wrong question in deciding not to exercise its discretion in s 473DC of the Migration Act to get new information from the applicant at an interview – whether the Authority unreasonably failed to exercise, or considering exercising, its discretion in s 473DC of the Migration Act to get new information from the applicant – whether the Authority made a finding that was illogical or irrational – jurisdictional error established – writs issued.

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MIGRATION – judicial review – decision of Administrative Appeals Tribunal – student visa – whether open to Tribunal to affirm delegate’s decision on different basis to delegate – whether denial of procedural fairness – whether Tribunal’s refusal to grant adjournment was unreasonable – whether Tribunal failed to have regard to matters

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MIGRATION – Skilled Nominated (Permanent) (class SN) (Subclass 190) visa – decision of the Administrative Appeals Tribunal – unreasonableness – requirements of Public Interest Criterion 4020 – bogus document – false or misleading information – compelling and compassionate circumstance – no jurisdictional error established – application dismissed.

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MIGRATION – extension of time application – protection visa- oral adjournment application refused- insufficient merits on impressionistic basic to warrant extension of time- extension of time application dismissed

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MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal affirming a decision refusing to grant the applicant a protection visa – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error – application dismissed.

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MIGRATION – protection visa - application for extension of time to seek judicial review of Administrative Appeals Tribunal (Tribunal) decision – minimal delay - no prejudice to the Minister – limited arguable case of jurisdictional error - application for extension of time refused

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MIGRATION – student visa – whether the Tribunal failed to comply with s 360 of the Migration Act 1958 (Cth) – whether the issue was apparent from its nature or from the terms of the statute under which it was made – whether the applicant was on notice that enrolment in a registered course of study may be a dispositive issue – materiality – jurisdictional error established – application succeeds

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MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal affirming delegate’s decision not to grant a visa – protection claim relating to loan sharks – adverse credibility findings – no jurisdictional error – application dismissed

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 MIGRATION – Immigration Assessment Authority - whether the Authority committed jurisdictional error by failing to lawfully consider essential evidence – whether the Authority denied the applicant natural justice and procedural fairness – whether the Authority failed to consider part of a claim – whether the decision was affected by legal unreasonableness – application dismissed.

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MIGRATION – Application for judicial review and extension of time – protection visa – prospects of success - whether acceptable reason for delay - whether interpretation deficiencies constituted reviewable error – onus of proof – allegation of third-party conduct - whether in the interests of administration of justice to extend time- application dismissed.

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

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MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – jurisdictional error identified by the Minister – Minister had been unable to obtain the applicant’s consent to remit matter – Court satisfied the Tribunal erred – writs issued.

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MIGRATION – protection visa – judicial review of a decision of the Immigration Assessment Authority - whether the Authority exercised the power in s 473DD of the Migration Act 1958 (Cth) unreasonably when it focused on a particular aspect of a medical report – whether it was unreasonable for the Authority not to exercise its power under s 473DC(3) of the Act by not obtaining new information concerning the applicant’s ongoing psychological vulnerability  – whether the Authority unreasonably failed to consider a claim – no jurisdictional error – application dismissed with costs

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 MIGRATION – judicial review – decision of Administrative Appeals Tribunal – student (Temporary) (Class TU) visa – obligation to invite applicant to present arguments relating to issues arising in review – extent of obligation whether Tribunal failed to give notice of issue – whether denial of procedural fairness - no jurisdictional error established – application dismissed

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MIGRATION – Protection visa – decision of the then 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).