Judgments

MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa – Review of registrar’s decision to dismiss reinstatement application – Whether any reasonable merit or any prospects of success in the application for judicial review – Whether in interest of justice to reinstate application for judicial review – Explanation for failing to appear inadequate – No reasonable prospects - Application dismissed.

MIGRATION – judicial review – Administrative Appeals Tribunal (the Tribunal) affirmed delegate’s decision refusing to grant a protection visa – Federal Court remitted matter to the Tribunal – whether the Tribunal failed to consider an integer of the claim – whether the Tribunal failed to complete the statutory review – whether the Tribunal failed to consider the applicant’s capacity to present arguments and give evidence – no jurisdictional error disclosed – application dismissed. 

MIGRATION – judicial review – extension of time application – where the Administrative Appeals Tribunal (the Tribunal) refused the grant of a protection visa – where there are no merits to the proposed application for judicial review – application dismissed.

MIGRATION – Ex Tempore – Administrative Appeals Tribunal - Regional Sponsored Migration Scheme (subclass 187) visa– no approved nominator – where the applicant did not meet cl 187.233(3) – three grounds of judicial review – whether the Tribunal fell into error – whether the Tribunal failed to consider evidence – whether the Tribunal failed to apply the law – no jurisdictional error established – application dismissed with costs. 

MIGRATION – judicial review – where the Administrative Appeals Tribunal (the Tribunal) refused to grant the applicant a protection visa – alleged the Tribunal erred by placing weight on irrelevant material – alleged the Tribunal erred by failing to invite the applicant to comment on information pursuant to s 424A or s 424AA – alleged the Tribunal erred by failing to consider a particular social group (PSG) – alleged the Tribunal erred by failing to consider all the material before it – no jurisdictional error disclosed – application dismissed. 

MIGRATION – Ex Tempore – Medical Treatment (Visitor) (Class UB) (subclass 602) – Administrative Appeals Tribunal – four grounds of judicial review – whether the Tribunal failed to consider evidence – allegation of bias – grounds of judicial review have no merit – application dismissed with costs.

FAIR WORK – Prosecution for contraventions of the Fair Work Act – liquidation of first respondent employer –– admissions that Compliance Notice was not satisfied –underpayment of employees who suffered loss – admitted failure to provide payslips – finding by admission that second respondent involved in contraventions – imposition of civil penalties to be paid by the second respondent to the Commonwealth.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether Tribunal overlooked or failed to consider matters – no point of principle – application dismissed.

MIGRATION – Extension of time in which bring proceeding – declined as no arguable ground of review and no adequate explanation for the delay.  

MIGRATION – application for judicial review – decision made by the Administrative Appeals Tribunal – protection visa – whether the Tribunal complied with ss 424A, 424AA of the Migration Act 1958 (Cth) – meaning of ‘information’ for the purposes of ss 424A, 424AA – Tribunal not required to disclose its thought process – application dismissed. 

MIGRATION – application for judicial review – decision made by the Immigration Assessment Authority – protection visa – whether the IAA’s decision unreasonable or illogical – IAA made coherent factual findings – application dismissed. 

MIGRATION – application for reinstatement of proceeding – application for judicial review summarily dismissed by a judicial registrar – application for review of a registrar’s decision dismissed for non-appearance – underlying application for judicial review has limited prospects of success – reinstatement application dismissed. 

BANKRUPTCY – application for delivery of vacant possession of property and for orders for sale of property – property vested in the trustees pursuant to ss 58 and 116 of the Bankruptcy Act 1966 (Cth) – application allowed – orders made consistent with trustees’ obligations under s 30 of the Act. 

PRACTICE AND PROCEDURE – costs – application by successful applicant for costs in excess of scale amount – whether sufficient reason and in interests of justice to order costs in excess of scale amount – whether evidence in affidavit in support of application for costs adequate or sufficient.

PRACTICE AND PROCEDURE – costs – application by unsuccessful party for costs thrown away by late service of amended application. 

MIGRATION – subclass 600 Visitor visa – Administrative Appeals Tribunal – three grounds of judicial review – whether the Tribunal failed to consider the applicant’s past applications – whether the Tribunal failed to consider documents submitted – third ground is a mere expression of dissatisfaction with the Tribunal’s decision – grounds of judicial review have no merit – application dismissed with costs. 

MIGRATION – Judicial Review – student visa refusal – whether Tribunal considered applicant’s claims – whether Tribunal misapplied relevant legislation – where applicable Ministerial Direction was revoked and replaced in the course of the Tribunal proceedings – whether Tribunal erred in failing to notify the applicant of the change in the applicable Ministerial Direction and request information pursuant to that Ministerial Direction before proceeding to a decision – no jurisdictional error established – application dismissed. 

MIGRATION – judicial review application – decision of Administrative Appeals Tribunal refusing to grant protection visa – where Tribunal found applicant to be not a credible witness – whether Tribunal erred in weight placed on medical report - no jurisdictional error established – application dismissed.

MIGRATION – judicial review – extension of time application - extension of time refused – costs ordered.

MIGRATION – judicial review application – decision of Administrative Appeals Tribunal refusing to grant protection visa - whether the Tribunal erred in adequately assessing the applicant’s well-founded fear of persecution due to link to  ‘particular social group’  - whether the Tribunal misconstrued or misapplied s 36(2)(aa) – whether the Tribunal failed to afford the applicant procedural fairness - no jurisdictional error established – application dismissed. 

MIGRATION – Extension of time – principles – no explanation for delay – no arguable case of error – extension refused.

MIGRATION – Judicial Review – protection visa – whether Tribunal failed to correctly apply the ‘real chance’ test in s 5J of the Migration Act 1958 (Cth) – whether Tribunal failed to consider a claim or an integer of a claim – whether Tribunal’s decision was legally unreasonable – allegations of mischaracterisation of the applicant’s evidence and misuse of country information – no jurisdictional error established – application dismissed.

MIGRATION – Extension of time in which bring proceeding – declined as no arguable ground of review and no adequate explanation for the delay.

MIGRATION – Power of Tribunal to adjourn – Tribunal adjourns future hearing as Tribunal member unavailable due to circumstances beyond control – short adjournment of six weeks – by time of adjourned hearing applicant had turned 23 and faced a new visa condition she could not satisfy – wide discretion to adjourn – intelligible and evident justification – no jurisdictional error – application dismissed.

COSTS – Fair work application – alleged contravention of a general protection – application unsuccessful – whether no reasonable cause of action – whether repleading of accessorial liability during hearing an unreasonable act or consequent upon an unreasonable omission causing other party to incur costs. 

INDUSTRIAL LAW – Alleged contravention of a general protection repleading of accessorial liability during hearing – respondents’ reasons for termination believed – application unsuccessful.

PRACTICE AND PROCEDURE – DISMISSAL OF PROCEEDING BECAUSE THE APPLICANT IS IN DEFAULT – Whether the applicant is in default under r. 5.08 of the court order because her Third Statement of Claim does not comply with the rules and, if so, whether the court should exercise its discretion to dismiss the proceeding under r. 5.10 – Where the Applicant has commenced a general protection proceeding under the Fair Work Act 2009 – Where the court had by a previous decision struck out the Applicant’s statement of claim and provided an opportunity for the Applicant to replead – Where the Applicant’s repleaded statement of claim, her Third SOC, did not conform with the rules – Factors relevant to the exercise of the discretion to dismiss the proceeding when the Applicant is in default – Where there was a history of non-compliance – Where the non-compliance is continuing – Where the Applicant was self-represented – Order made dismissing the proceeding. 

INDUSTRIAL LAW – CIVIL PENALTY – Contravention of s. 44 of the Fair Work Act 2009 by the Respondent’s failure to give the Applicant notice of termination of his employment or a payment in lieu of notice in accordance with s. 117(2) of the Act – Consequential order for interest under s. 547(2) of the Act – An order for a penalty of $16,500 appropriate to meet the objects of specific and general deterrence – Orders made.    

FAIR WORK –– determination of pecuniary penalty –– failure to comply with compliance notice –– contravening conduct occurred over period during which different maximum penalty amounts applicable –– what penalty is necessary to effect deterrence where contravening party failed to appear or provide any explanation of contravening conduct.

INDUSTRIAL LAW – general protections – whether the applicant had a workplace right – whether the applicant exercised a workplace right – whether adverse actions was taken because the applicant exercised a workplace right – whether the exercise of workplace rights by the Applicant was a substantial and operative reason for dismissal – whether the respondent failed to discharge the reverse onus in s 361 of the Fair Work Act (Cth) – reverse onus engaged – declarations made. 

MIGRATION - Safe Haven Enterprise (Class XE) (subclass 790) – Application for judicial review – Whether the Authority failed to consider a necessary and relevant consideration – Whether illogical and unreasonable to reject evidence as unreliable or fabricated – Whether illogical, irrational or unreasonable to determine that such evidence undermined credibility – No jurisdictional error – Application dismissed. 

MIGRATION LAW – Application for judicial review of the tribunal – Medical Treatment Visitor Class UB Visa application – Applicant not 50 years of age – whether applicant genuinely intended to remain in Australia on a temporary basis – not gravely ill or receiving intensive or critical care – application dismissed.

MIGRATION – Student (Subclass 573) visa - Application for judicial review – Non-attendance of applicant – Application dismissed pursuant to rr 5.08, 5.10 and 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) – Costs ordered. 

MIGRATION – application for review of Registrar’s decision – where Registrar dismissed application for judicial review after applicant failed to appear at a callover listing – where applicant applied for reinstatement of application for judicial review – where Registrar dismissed application for reinstatement – application for review dismissed with costs. 

MIGRATION – application for student visa – where applicant had two previous student visas – where applicant had suffered an injury which took a year to recover – where applicant had not completed post-graduate courses of study and had a period of several months during which he undertook no study – where applicant enrolled in registered course of study on day of Tribunal hearing – where Tribunal determined applicant did not satisfy cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) – whether Tribunal erred by considering factors beyond applicant’s control – whether Tribunal erred by expecting applicant to have made job applications prior to completing his studies – no jurisdictional error identified – application dismissed with costs.

MIGRATION – Whether decisions of Tribunal following non-appearance of respective applicants was stultified by third party fraud in dissuading them from attendance – where advice came from intermediary and was at most negligent or incompetent – whether Tribunal failed to consider claims or integers of claims and made unreasonable decisions.

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

MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – whether Authority entitled to rely on findings made during refugee assessment in considering complementary protection criterion – whether applicant made claim not considered by Authority – whether applicant abandoned claim – whether Authority failed to consider claim – application dismissed.

MIGRATION – student visa - decision of Administrative Appeals Tribunal - whether procedural fairness was afforded – where incompetence of agent alleged but no record of agent - whether it was open for the Tribunal to make a decision without a hearing rather than adjourn – whether the Tribunal applied the law correctly – no jurisdictional error – application dismissed.

MIGRATION – Costs – Application for costs sought above the scale following a final hearing – Fixed costs order made.

MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa - Application for extension of time to seek judicial review – Application dismissed due to non-appearance by applicant pursuant to rr 5.08(c), 5.10(a) and 22.04(1)(a)(i).

MIGRATION – Judicial review of Administrative Appeals Tribunal’s decision to confirm the decision to dismiss the application to the Tribunal after the applicant failed to appear at the hearing and failed to apply for reinstatement of the application within the prescribed period – Dismissal for non-appearance at the hearing before the Court. 

MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – whether Authority failed to consider whether it could consider new information – whether Secretary failed to provide audio recording of interview to Authority in breach of s 473CB – whether Authority failed to consider applicant’s claims cumulatively. 

FAIR WORK – dismissal in alleged contravention of ss.340, 351 and 352 of the Fair Work Act 2009 (Cth) – where applicant was underperforming, intermittently took personal leave for undiagnosed illness, complained about a directive to perform work in the office and was summarily dismissed – where adverse action and exercise of workplace rights established – consideration of evidence as to the actuating reasons for the dismissal – HELD that the first respondent contravened s.340 of the Act and the second respondent was involved within the meaning of s.550.

UNDERPAYMENT AND BREACH OF CONTRACT – dismissal without notice in alleged breach of contract and contravention of ss.44 and 117(2) – where serious misconduct not apt – finding of contractual breach, contravention and involvement within meaning of s.550 of the Act.

INDUSTRIAL LAW – general protections – whether the applicant had a workplace right – whether the applicant exercised a workplace right – whether adverse actions was taken because the applicant exercised a workplace right – whether the exercise of workplace rights by the Applicant was a substantial and operative reason for dismissal – whether the respondent failed to discharge the reverse onus in s 361 of the Fair Work Act (Cth) – reverse onus engaged – declarations made. 

MIGRATION – Judicial review – Safe Haven Enterprise (Class XE) (subclass 970) visa – Whether findings by the Immigration Assessment Authority were legally unreasonable, irrational or illogical – Whether the Immigration Assessment Authority erred when it did not get, or consider getting, new information pursuant to s 473DC of the Migration Act 1958 (Cth) concerning the applicant’s claims – No jurisdictional error established – Application dismissed.

MIGRATION – Judicial review – Protection (Class XA) visa – Whether the Tribunal failed to take further steps to notify the applicant of the hearing date before the Tribunal once it was aware the applicant’s migration agent was no longer registered as a migration agent – Whether the applicant’s visa application was invalid by reason of fraud allegedly perpetrated by the applicant’s migration agent in including claims in the protection visa application without the applicant’s knowledge or instructions – Whether the Tribunal’s processes were stultified by reason of fraud allegedly perpetrated by the applicant’s migration agent in allegedly failing to notify the applicant as to the hearing date or that the applicant could apply for reinstatement after the dismissal of the proceedings – no fraud established by the applicant – Application dismissed.

MIGRATION – decision of Administrative Appeals Tribunal – where applicant applied out of time for Tribunal review – where applicant has provided multiple email addresses to the Tribunal – whether the applicant was taken to have been notified of the delegate’s decision under s 494B(5) of the Migration Act 1958 (Cth) – meaning of “provided to the Minister” for the purposes of receiving documents – whether a contact address may be provided for multiple purposes – application dismissed.

MIGRATION –-Interlocutory Application for extension of time to apply for judicial review – Refusal to grant waiver of ‘no further stay’ condition on Student Guardian (Class TU) (Subclass 590) visa – Short delay -No jurisdictional error identified – No reasonable prospects of success -Application for extension of time dismissed. 

MIGRATION– application for judicial review of a decision of the Administrative Appeals Tribunal to not grant partner visa – matter had been remitted with the direction that the Applicant met the schedule 3 criteria – whether sponsor and applicant were in a genuine relationship at the time of the decision.

MIGRATION - Student (Temporary) (Subclass 573) visa - Application for judicial review –– Writ of mandamus not sought by applicant –Visa cancelled by delegate as applicant not enrolled in a registered course of study – Applicant conceded not enrolled in a registered course of study - Whether Tribunal unreasonable in denying adjournment request to obtain medical evidence – No adjournment request actually made - Where alleged fraud by agent – No evidence of agent retained by applicant - Medical evidence not produced by applicant – No jurisdictional error by Tribunal - Application dismissed.

MIGRATION– application for review of a Registrar’s decision to summarily dismiss judicial review application – Student visa application – where the Applicant did not have a current certificate of enrolment – consent for the application to be heard on the papers – no jurisdictional error established by the applicant – where it is a binary decision whether the Applicant was enrolled in a registered course of study – no reasonable prospects of success established.