Judgments

MIGRATION – application for judicial review – student visa – review of a decision by the Administrative Appeals Tribunal (Tribunal) – whether the Tribunal afforded procedural fairness – whether the Tribunal failed to give proper, genuine and realistic consideration – no judicial error established – application dismissed

MIGRATION – Immigration Assessment Authority – protection visa – whether the Authority failed to consider certain matters – whether the Authority misapplied the law – whether the Authority’s decision was legally unreasonable.

MIGRATION – Student (subclass 500) visa decision of the Administrative Appeals Tribunal – matter listed for final hearing – no appearance by or on behalf of the applicant – application dismissed 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 – Administrative Appeal Tribunal – Student visa application – whether the applicant consented to the Tribunal determining the matter without a hearing –denied opportunity to appear before Tribunal – jurisdictional error established

MIGRATION - review of delegated summary dismissal decision by Registrar – review application made out of time – factors for extending time in context of review application –where substantive application for judicial review has no prospect – extension of time not granted

INDUSTRIAL LAW – application for imposition of pecuniary penalty – admitted contraventions of ss 716(5) and 536(1) of the Fair Work Act 2009 (Cth) – where respondent has rectified underpayments and cooperated with the regulator by signing an agreed statement of facts – where respondent is no longer in business – where no need for specific deterrence – where respondent took responsibility for his actions despite challenging personal circumstances – modest penalty imposed

PRACTICE & PROCEDURE – application for orders for alleged contempt by respondent and his lawyers – no foundation for such application – application dismissed.

 MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicants partner visas – where the Tribunal found the criteria in Schedule 3 to the Migration Act 1958 (Cth) were not met and that there were no compelling reasons not to apply those criteria – whether the Tribunal considered all relevant evidence advanced by the applicants – whether the Tribunal gave the applicants a proper opportunity to address whether there were compelling circumstances not to apply the Schedule 3 criteria – whether the Tribunal considered the matters relied on by the applicants cumulatively – whether the Tribunal displayed a reasonable apprehension of bias – no jurisdictional error – application dismissed.

MIGRATION – administrative law – judicial review – application for extension of time – dismissal for non-appearance – r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

MIGRATION – Judicial review – Student (Temporary) (Class TU) (Subclass 500) visa – Whether the Tribunal failed to take into account relevant considerations – No Jurisdictional error – Application dismissed

MIGRATION LAW – Administrative Appeals Tribunal - Student Visa (Class TU) refused - proper regard to s 359AA - natural justice and relevance of existing studies - application dismissed.

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – whether the Authority misapplied s 473DD of the Migration Act 1958 (Cth) in assessing new information – whether the Authority acted unreasonably in failing to exercise its discretion in s 473DC of the Migration Act 1958 (Cth) to obtain new country information – jurisdictional error established – writs issued.

MIGRATION – application for judicial review of decision of the Immigration Assessment Authority – safe haven enterprise visa – where the Applicant claims there was a constructive failure by the Authority to exercise review jurisdiction – where the Applicant claims there was a failure to consider an integer of the claim – jurisdictional error established – material error found - application for review allowed

MIGRATION – application for reinstatement – where Registrar summarily dismissed application for judicial review and applicant failed to appear at review hearing – student visa – decision of the Administrative Appeals Tribunal – whether the applicant satisfied enrolment requirement in cl 500.211(a) of  Schedule 2 to the Migration Regulations 1994 (Cth) – alleged failure of the Tribunal to consider relevant material– consideration of reinstatement principles – not in the interest of justice to allow reinstatement – application refused with costs

INDUSTRIAL LAW – Fair Work Act – compliance notice issued pursuant to s 716 – determination of primary and accessorial liability – failure to comply with compliance notice – where first respondent challenges the underlying underpayment contravention but has not sought to bring a review application under s 717 – liability established – declarations made – question of further orders reserved – matter set down for penalty hearing

MIGRATION – partner visa – judicial review of decision of Administrative Appeal Tribunal not to grant visa – where visa application made more than 28 days after cessation of previous substantive visa – where applicant had been unlawful non-citizen for four years – whether compelling circumstances warrant waiver of visa criteria – whether Tribunal failed to consider relevant matters – whether applicant denied procedural fairness – whether Tribunal affected by apprehended bias – no error found

MIGRATION – student visa – decision of the Administrative Appeals Tribunal –  whether the applicant could satisfy the genuine temporary entrant criterion under cl 500.212(a) of  Schedule 2 to the Migration Regulations 1994 (Cth) – consideration of factors in Ministerial Direction 69 – consideration of the applicant’s circumstances in Australia and his home country— where applicant alleges the Tribunal drew illogical conclusions about his familial ties and incentive to return to his home country– no jurisdictional error – application dismissed with costs

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA unreasonably failed to consider exercising, or exercise, its discretion to invite the applicant to give new information – whether the IAA failed to give proper, genuine and realistic consideration to a claim – application dismissed

MIGRATION LAW – Protection visa – Application for an extension of time to commence judicial review proceeding – Adequacy of explanation for delay – Applicant’s proposed ground of review not reasonably arguable – No utility in granting an extension – Application dismissed

MIGRATION – application for review of Registrar’s decision filed outside of proscribed timeframe – where represented applicant failed to seek extension of time – application dismissed as incompetent with costs.

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal constructively failed to exercise its jurisdiction by adopting an erroneous approach to the criterion in question – application dismissed

MIGRATION – Judicial review application – decision of Administrative Appeals Tribunal to affirm refusal of Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa – where sponsor’s visa nomination application refused – whether denial of natural justice – whether jurisdiction to grant sponsor opportunity to resubmit visa nomination application – meaning of “position” in relevant criterion – whether remitter futile – materiality – whether material jurisdictional error

PRACTICE & PROCEDURE - Default judgment following non-compliance with Court rules and orders.

MIGRATION – application for review of a decision of the Administrative Appeals Tribunal – where applicant alleged fear of harm from money lenders in home country - where Tribunal accepted applicant had a genuine and credible fear of harm for the purposes of s 5J(1) of the Migration Act 1958 (Cth) but that effective protection measures would be available to the applicant in the receiving country– where applicant alleged that Tribunal misunderstood his evidence – where mistake of fact did not flow into dispositive findings - no jurisdictional error established – application dismissed with costs

MIGRATION – Application for judicial review – failure to consider claim or component integers of claim – claim as advanced was considered – application dismissed.

MIGRATION – Whether the authority had failed to carry out a proper review of the applicants’ claims – whether the Authority misunderstood or misapplied s. 473DD of the Migration Act – whether the Authority improperly received new information under s. 473DD of the Act – no jurisdictional error established – application dismissed.

MIGRATION – Whether Tribunal erred in exercise of discretion to cancel visa – whether applicants denied procedural fairness

MIGRATION – Application for judicial review – unparticularised grounds – where delegate accepted certain claims – where Immigration Assessment Authority (‘Authority’) found the claims ‘evasive’ and ‘vague’ and rejected the claims – where Authority listened to audio recording and did not call the Applicant for interview – whether Authority rejected the Applicant’s claims wholly or substantially on the basis of the manner in which the Applicant gave evidence – HELD that the Authority did not reject the Applicant’s claims wholly or substantially on the basis of his demeanour – application dismissed.

MIGRATION – Judicial review – where Tribunal sent invitation to appear to incorrect email and incorrect postal address – where other email communications were sent to the correct email address – where Authority relied on repeated attempts to contact the Applicant before determining to proceed without requesting further information from the Applicant – whether actions of Authority unreasonable – HELD that the Authority acted unreasonably.

BANKRUPTCY – Practice and procedure – Application for summary dismissal – Applicant seeks to examine the respondent and various associates – Where the respondent was discharged from bankruptcy 14 years ago – Documents sought relate to a period of 18 years – Where the trustee previously appointed to administer the estate does not support any further efforts being undertaken – Whether the summonses are oppressive and vexatious or an abuse of process – Status of applicant to bring proceedings – Matters to be considered

MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal affirming a decision to refuse to grant the applicants Temporary Skill Shortage (Class GK) visas – where the Tribunal found that there was no approved nomination in respect of the position for which the visa was sought – where the sponsor separately sought judicial review of a decision of the Tribunal affirming the refusal of the nomination application – where the sole ground of application is based on an assertion of jurisdictional error in the decision relating to the nomination application – no jurisdictional error – application dismissed.

PRACTICE AND PROCEDURE – BANKRUPTCY – interim application for an extension of time of one day for the filing on an application for review and stay of sequestration order made by a registrar – trustee appointed – prejudice to other persons – arguable case not supported by the evidence – balance of convenience not served by granting stay – other sufficient cause futile – application dismissed with costs

MIGRATION – Whether Immigration Assessment Authority denied applicant procedural fairness by failing to alert him to potential adverse conclusions available on the material before it and thereafter invite comment

PRACTICE AND PROCEDURE – application to strike out a statement of claim – where statement of claim contains content that is likely to cause prejudice, embarrassment or delay in the proceeding – appropriate to strike out statement of claim – whether proceeding should be summarily dismissed.

MIGRATION – student (subclass 500) visa – decision of the Administrative Appeals Tribunal – where tribunal asked to determine whether applicant is enrolled in a course of study – current Confirmation of Enrolment not found – no appearance by or on behalf of the applicant – applicant is offshore, does not have a visa and cannot return to Australia – 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.

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence or claims – whether the Tribunal relevantly erred by failing to make inquiries – whether the Tribunal’s reasoning was open on the material before it – application dismissed

BYL23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 745

INDUSTRIAL LAW - FAIR WORK – FAILURE TO COMPLY WITH COMPLIANCE NOTICE – application for imposition of pecuniary penalties and other relief – apprentice entitlements – pecuniary penalty ordered

MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal affirming a decision to refuse the applicant’s nomination application – whether the Tribunal failed to carry out its statutory task in determining whether the position was genuine – whether the Tribunal failed to have regard to a relevant consideration or evidence – no jurisdictional error – application dismissed

MIGRATION – applications for judicial review of decisions made by the Immigration Assessment Authority affirming decisions not to grant the applicants protection visas – where Authority obtained new country information – whether the Authority acted unreasonably in failing to exercise its discretion in s 473DC of the Migration Act 1958 (Cth) to invite the applicants to comment on the new country information – no jurisdictional error – applications dismissed.

MIGRATION – Immigration Assessment Authority – protection visa – apprehended bias – application convicted of assault and indecent assault of a child under 16 years old – whether the Authority misconstrued s.473DC of the Migration Act 1958

PRACTICE AND PROCEDURE – application to strike out a statement of claim – where statement of claim fails to disclose a reasonable cause of action and contains content that is likely to cause prejudice, embarrassment or delay in the proceeding – appropriate to strike out statement of claim and give applicant an opportunity to replead.

MIGRATION – Student (subclass 500) visa – decision of the Administrative Appeals Tribunal – where tribunal asked to determine whether applicant is enrolled in a course of study – no appearance by or on behalf of the applicant – no explanation or communication received from 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.

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal’s decision was affected by bias – whether the Tribunal failed to consider evidence – whether the Tribunal’s decision was open to it on the material before it or affected by any other form of legally recognisable error – application dismissed

BANKRUPTCY – COSTS – where an application for annulment of an order for sequestration was dismissed – where the applicant bankrupt opposed the making of an adverse costs order – where costs ought to follow the event as the usual order – order accordingly.

MIGRATION – Judicial review application - citizen of Sri Lanka – single unparticularised ground of review – whether any jurisdictional error in new information findings – whether any jurisdictional error in refugee and complementary protection findings – whether impermissible merits review – whether jurisdictional error otherwise – whether material jurisdictional error

MIGRATION – Student visa – Where the Tribunal did not fail to have regard to relevant considerations – Application dismissed

MIGRATION – Protection Visa – Refusal – Review of Immigration Assessment Authority (“IAA”) decision – Criteria for considering “new information” under s 473DD of the Migration Act 1958 (Cth)

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal made a finding without supporting evidence, failed to consider the applicants’ claims, or reasoned in a manner that was not open to it on the evidence – application dismissed

MIGRATION LAW – Administrative Appeals Tribunal - Student (Temporary) (Class TU) Subclass 500 (Student) visa – Whether genuine applicant for entry and stay as a student – application dismissed