Judgments

PRACTICE AND PROCEDURE – Application in a proceeding – whether leave to be granted for a non-lawyer to appear for a corporation. 

PRACTICE AND PROCEDURE – where the applicant failed to appear at a listing before the Court relating to her judicial review application – application dismissed pursuant to r 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).   

PRACTICE AND PROCEDURE – Whether procedural rules apply at the time of filing or time of decision and/or should be dispensed with – principle of presumption against retrospectivity – 2021 Rules apply and dispensation not appropriate.

MIGRATION – Partner visa – application for review of a summary dismissal decision made by a Registrar filed 7 days outside of proscribed timeframe – consideration of factors relevant to exercise of the discretion to allow further time for filing – unusual circumstance of recent rule changes – application devoid of merit – application refused with costs. 

MIGRATION – Application for review of a reinstatement decision made by a Registrar – relevant considerations – where the underlying substantive application has no reasonable prospect of success – orders previously made set aside, with the result that the originating application is dismissed.

MIGRATION – Judicial review – refusal to grant the applicant a Partner (Temporary) (Class UK) visa – whether the Tribunal failed to comply with the requirements of s 359A of the Migration Act 1958 (Cth) in failing to give clear particulars of information – no jurisdictional error – application dismissed.

MIGRATION - application for judicial review – student (Temporary) (Class TU) (Subclass 500) visa – where Administrative Appeals Tribunal affirmed decision to cancel the visa under s 116(1)(e)(i) of the Migration Act – whether the Tribunal’s decision was affected by jurisdictional error – found no jurisdictional error on behalf of the Tribunal – application dismissed.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to approve a nomination of position - requirement for training specified in statutory instrument – statutory instrument specified ‘recent expenditure’ in provision of training – whether ‘recent expenditure’ refers to expenditure in months prior to lodging nomination or in months prior to decision.

STATUTORY CONSTRUCTION – meaning of term ‘recent expenditure’ in statutory instrument  - role of departmental policy in interpreting term in statutory instrument – role of explanatory statement in interpreting term in statutory instrument. 

MIGRATION – judicial review – request by applicant to Tribunal for adjournment of review or additional time to provide further evidence – Tribunal refused request – whether Tribunal’s refusal to exercise procedural discretionary power to adjourn review was legally unreasonable – failure of Tribunal to consider that departmental policy was misleading and applicant relied on misleading departmental policy.

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – extension of time – no appearance by or on behalf of the applicant – application dismissed pursuant to r 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

MIGRATION – application for judicial review of a decision made by the Immigration Assessment Authority – protection visa – whether the Authority unreasonably failed to exercise its discretion to ‘get’ new information under s 473DC of the Migration Act 1958 (Cth) – whether the Authority considered exercising its discretion under s 473DC of the Act but unreasonably decided against it – application dismissed.

MIGRATION – Application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA failed to address all integers of the applicant’s claims, or constructively failed to exercise jurisdiction – application dismissed. 

MIGRATION – Judicial review – refusal to grant a Partner (Temporary) (Class UK) (Subclass 820) visa – whether the Tribunal failed to give proper, genuine or realistic consideration to the opinions of the friends and acquaintances of the applicant and his visa sponsor about the nature of the relationship as stipulated by r1.15A(3)(c)(ii) of the Migration Regulations 1994 (Cth) – approach to corroborative evidence in cases where the “well is poisoned beyond redemption” – no jurisdictional error – application dismissed. 

MIGRATION – Judicial review – decision of Administrative Review Tribunal refusing to grant protection visa – applicant absent from Court hearing – dismissal for non-appearance. 

MIGRATION – Application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA relevantly erred in relying upon the applicant’s evidence at an entry interview – whether the IAA failed to consider a claim – writs issued.

FAIR WORK – interlocutory application – review of registrar’s decision not to enter default judgment against respondent – review dismissed - respondent sought orders striking out various parts of the statement of claim – respondent sought orders to summarily dismiss one of the claims in the statement of claim – some paragraphs in the statement of claim to be struck out. 

FAMILY LAW – Parenting – spend time arrangements – where the father seeks order that the children spend supervised time with him - where the children have not seen the father for five years – where one of the children has never met the father – unacceptable risk – allegations of family violence – whether there is a benefit to the children of being able to have a relationship with both parents – consideration of what arrangements will promote the safety of the children – whether supervision of the children’s time with the father will ameliorate identified risks – consideration of mother’s capacity to provide for the children’s needs if there is an order for supervised time with the father – where order for supervised time will expose the children and the mother to unacceptable risk – allocation of decision-making about major long-term issues – HELD that the father spend no time and have no communication with the children, and that the mother have sole decision-making for all major long-term issues relating to the children.

BANKRUPTCY – application to review a registrar’s decision – application dismissed – costs – applicant to pay the respondent’s costs. 

FAIR WORK – PRACTICE AND PROCEDURE – application to strike out statement of claim –statement of claim contains content that is likely to be embarrassing or cause delay in the proceeding – appropriate to strike out parts of the statement of claim and give applicant an opportunity to replead.   

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a student visa – whether the Tribunal failed to have regard to a relevant document – whether the Tribunal unreasonably failed to give the applicant more time to provide evidence – whether the Tribunal unreasonably failed to adjourn the hearing – whether the Tribunal acted unreasonably in exercising its discretion in s 362B(1A)(a) of the Migration Act 1958 (Cth) to make a decision on the review when the applicant failed to appear at the hearing – no jurisdictional error – application dismissed. 

MIGRATION - Skilled Nominated (Permanent) (Subclass 190) visa – Application for judicial review – Typographical errors in Tribunal reasons – Alleged failure to discharge statutory task of review – Unreasonable decision making – Bias – 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 failed to consider, or gave insufficient weight to, evidence presented by the applicant – whether the Tribunal incorrectly applied the relevant legal tests – no jurisdictional error – application dismissed.  

MIGRATION – non-appearance by or on behalf of the applicants after withdrawal by solicitor – limited engagement with the proceeding more generally – application dismissed for non-appearance – costs. 

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – judicial review – no appearance by or on behalf of the applicant – application dismissed pursuant to r 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). 

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – judicial review – no appearance by or on behalf of the applicant – application dismissed pursuant to r 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). 

MIGRATION – judicial review – decision of Administrative Review Tribunal refusing to grant protection visa – applicant absent from Court hearing – dismissal for non-appearance. 

MIGRATION – decision of Administrative Appeals Tribunal cancelling resident return visa – exercise of discretionary power to cancel visa after Tribunal found applicant provided incorrect information in visa application – Tribunal accepted applicant may face real chance of serious harm if required to return to Pakistan but found cancellation would not lead to applicant’s removal in breach of Australia’s non-refoulement obligations – whether error by Tribunal in finding that Australia’s non-refoulement obligations would not be breached.

MIGRATION – application for Protection (Class XA) (Subclass 866) visa – Administrative Appeals Tribunal not satisfied that applicant is a person to whom Australia owes protection obligations as outlined in s 36(a) or (aa) –delegate’s decision to refuse the grant of the visa affirmed – whether Tribunal made a jurisdictional error– no jurisdictional error established – application dismissed.

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – extension of time – no appearance by or on behalf of the applicant – application dismissed pursuant to r 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). 

MIGRATION – protection visa – application for an injunction to restrain the Minister from removing the applicant from Australia – where no underlying application – effect of application for bridging visa – effect of request for Ministerial intervention – application of s 198(5) – application of s 197E – application for interlocutory injunction dismissed. 

PRACTICE AND PROCEDURE – application for an extension of time to file a general protections court application under the Fair Work Act 2009 (Cth) – extension of time granted.   

PRACTICE AND PROCEDURE – where the applicant failed to appear at a listing before the Court relating to his judicial review application – application dismissed pursuant to r 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).  

MIGRATION – Judicial Review – Protection (Class XA) (Subclass 866) visa – whether application to Tribunal was lodged out of time – meaning of ‘end of day’ in section 494C of the Migration Act 1958 (Cth) – meaning of ‘transmit’- held that application was lodged out of time – application dismissed. 

MIGRATION – Judicial Review – protection visa – credibility findings – allegation of denial of procedural fairness – allegation of bias – whether error arose out of Tribunal’s misstatement of an aspect of country information – whether error disclosed in Tribunal’s consideration of the applicant’s delay in lodging the protection visa application – no jurisdictional error – application dismissed.

MIGRATION – application for judicial review of a decision of the Administrative Review Tribunal affirming a decision not to grant the applicant a protection visa – whether the ART failed to consider, or gave insufficient weight to, the applicant’s evidence and claims – whether the ART denied the applicant procedural fairness – whether the ART failed to comply with s 367A of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.  

MIGRATION – application for judicial review - Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) – whether Tribunal failed to engage with and properly consider evidence relating to family violence – whether Tribunal failed to afford procedural fairness - application dismissed  

MIGRATION – Application for student visa – primary applicant citizen of Nepal – Tribunal determined applicant did not satisfy criterion in cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) – whether Tribunal erred by failing to provide an interpreter – applicant did not seek assistance of interpreter – applicant did not demonstrate any subversion of the review – Tribunal did not fail to give proper, genuine and realistic consideration to application – no jurisdictional error – application dismissed. 

MIGRATION – Extension of Time – Delay of eight years, six months and eleven days – Non-attendance of applicant – Extension of time dismissed pursuant to rr 5.08(c), 5.10(a) and 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

MIGRATION – Application for student visa – applicant a citizen of Nepal – Tribunal determined applicant did not satisfy criterion in cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) – no jurisdictional error identified – application dismissed.

MIGRATION  – judicial review of a decision of the Immigration Assessment Authority to not grant a protection visa – where grounds of review are unparticularised – where the Applicant challenged the merits of the decision – where no jurisdictional error could be established 

MIGRATION - Protection (Class XA) (subclass 866) visa– application seeking constitutional writ of Tribunal decision to affirm Ministers decision – no jurisdictional error – application dismissed.  

MIGRATION – application for constitutional writ of a decision of the ART – refusal to grant a Subclass 500 student visa – considerations for GTE criterion – strength of incentives to return to home country – value of the course of study to future employment prospects – Court found no jurisdictional error – application dismissed.  

 MIGRATION - Protection (Class XA) (subclass 866) visa– application seeking constitutional writ of Tribunal decision to affirm Ministers decision – no jurisdictional error – application dismissed. 

MIGRATION – Review of summary dismissal by Registrar – protection visa application – where Tribunal dismissed application after applicants failed to appear at hearing and failed to apply for reinstatement within prescribed period – whether application has no reasonable prospect of success – where applicants claim they did not receive invitation to Tribunal hearing – where Tribunal invitation transmitted to last email address provided by the applicant in connection with the application – application allowed. 

PRACTICE AND PROCEDURE – where the applicant failed to appear at a listing before the Court relating to her judicial review application – application dismissed pursuant to r 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).    

 FAIR WORK – applicant has failed to appear – appropriate to exercise the Court’s powers under r 5.10 of the rules to dismiss the applicant's proceedings – proceedings dismissed 

CHILD SUPPORT – Costs - where the appeal was dismissed - where the Child Support Registrar is seeking costs in respect to the failed appeal - held that the respondent pay to the Child Support Registrar costs in the sum of $7,543 

BANKRUPTCY - property jointly owned by the respondent and the bankrupt - proceeds of sale currently in the trustee's trust account as a result of realising the property of the bankrupt - the legal title is what the trustee was entitled to act upon 

CONSUMER LAW – application for orders requiring delivery of a vehicle subject to a security interest registered under the Personal Property Securities Act 2009 (Cth) – evidence that the vehicle was transferred to the second respondent, a non-party to the security agreement – orders made requiring delivery of the vehicle and keys by the second respondent according to a specified procedure – opportunity for the second respondent to seek discharge or variation of the orders within a specified period 

DEFAMATION – assessment of damages  

MIGRATION – Application for student visa – criterion for visa enrolment in course of study - where applicant consented to matter being dealt with without a Tribunal hearing – where Tribunal afforded applicant 8 months to submit evidence in support of review and refused request for additional time – not unreasonable for Tribunal to so proceed where applicant claimed to be awaiting Tribunal decision before obtaining Confirmation of Enrolment – criteria for grant of the visa not met – Tribunal affirmed decision under review – application dismissed

CHILD SUPPORT- Appeal – Notice of Appeal failed to establish that there had been an error in law made by the Administrative Appeals Tribunal – Appeal dismissed – Costs reserved pending written submissions.