Judgments

MIGRATION – REVIEW OF ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – whether Tribunal misconstrued significant harm – whether Tribunal failed to investigate the applicant’s claims – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error established – application dismissed with costs

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – where applicant absent from the hearing – 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 – applicant ordered to pay the first respondent’s fixed costs

MIGRATION – REVIEW OF ADMINISTRATIVE REVIEW TRIBUNAL – where applicant absent from the hearing – 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 – applicant ordered to pay the first respondent’s fixed costs

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL – applicant self-represented – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error established – application dismissed with costs

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – applicant self-represented – whether a denial of procedural fairness – whether the applicant made a claim relating to her mental health – whether the Tribunal had any duty to inquire – no jurisdictional error established – application dismissed with costs

FAIR WORK – Application for costs – Respondent seeks indemnity costs – Whether Application was filed without reasonable cause – Consideration of conduct of the Applicant – Whether indemnity costs as sought is appropriate – Applicant to pay costs in a fixed sum

MIGRATION – judicial review of Administrative Appeals Tribunal (Tribunal) decision – protection visa – whether the Tribunal erred into taking account relevant considerations – no jurisdictional error established – application dismissed.

essment Authority – whether applicant denied procedural fairness – where files relating to previous visa applications not before Authority – whether applicants claims for protection properly considered – consideration of fast track review process – no error found

MIGRATION – Whether the Tribunal failed to evaluate and consider a report purporting to constitute new country information – where report irrelevant to considerations - where no jurisdictional error established – where application dismissed.

MIGRATION – application for review of decision made by Registrar to summarily dismiss judicial review application – where Tribunal found that it did not have jurisdiction to conduct review – where application for review made out of time – where no adequate explanation for delay – where there is no reasonable prospect of success of judicial review application – extension of time refused with costs

MIGRATION – Application for judicial review – decision of Immigration Assessment Authority – citizen of Pakistan – Pashto ethnicity – whether failure to have regard to new information – date of publication of decision of Administrative Appeals Tribunal in another matter – whether Administrative Appeals Tribunal decision made before decision of delegate – consistency in administrative decision-making – whether unreasonableness or illogicality or irrationality – whether material jurisdictional error

MIGRATION – judicial review of Administrative Appeals Tribunal decision – dismissal for non-appearance – costs ordered

MIGRATION – Student visa – Impermissible merits review – Unparticularised grounds – Application dismissed

MIGRATION– Judicial review – decision not to grant a Protection (Class XA) (subclass 866) visa – unparticularised assertions that the Tribunal considered irrelevant and inaccurate information -unparticularised grounds of review- litigant in person - no jurisdictional error disclosed-application dismissed

MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizen of Pakistan of Pashtun ethnicity – whether Authority constructively failed to carry out statutory task to review decision of a delegate by reason of failure to consider important evidence within the review material – whether documents comprised part of the review material – whether documents considered – whether documents significant or consequential in relation to Immigration Assessment Authority decision – whether any failure to consider documents material – whether material jurisdictional error.

MIGRATION – protection (subclass 866) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – no appearance by the applicant at the Tribunal hearing – judicial review – where applicant gave notice that he would not attend the Tribunal hearing – whether the Tribunal unreasonably made a decision on the review pursuant to s 426A(1A)(a) of the Migration Act 1958 (Cth) – Tribunal arrived at an intelligible decision-making process – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal failed to consider, or give requisite consideration to, evidence that was before it – whether the Tribunal engaged in irrational or illogical reasoning – application dismissed

MIGRATION – application for review of decision made by registrar – where registrar summarily dismissed application for judicial review of decision of Administrative Appeals Tribunal – de novo hearing – whether applicant has no reasonable prospect of successfully prosecuting proceeding – application dismissed

INDUSTRIAL LAW – application for leave under r 9.04 – director and second respondent proposes to represent corporation – purposes of representation – application dismissed

MIGRATION – practice and procedure – application for review of a judicial registrar’s orders summarily dismissing an application for judicial review of a decision made by the Administrative Appeals Tribunal – application for review dismissed – judicial registrar’s decision affirmed.

MIGRATION – Application for review of Registrar decision summarily dismissing application – where application for review made out of time – time not extended and application dismissed

MIGRATION – Review of decision by Registrar summarily dismissing judicial review application – application made out of time – extension of time refused

MIGRATION – Judicial review application – Immigration Assessment Authority decision – citizen of Pakistan – whether failure to exercise jurisdiction – whether assessment of real chance of persecution in the reasonably foreseeable future – whether material jurisdictional error – writs issued

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to understand the meaning and effect of s 36(2A) of the Act – whether the Tribunal considered the applicant’s protection claims “erroneously and narrowly” – whether the Tribunal’s decision and credibility findings were illogical, irrational or unreasonable – whether the Tribunal failed to “investigate” the applicant’s protection claims – whether the Tribunal failed to comply with s 424A of the Act – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal erred by failing to consider the “changed situation” in Malaysia – no jurisdictional error – application dismissed.

MIGRATION – Protection visa – Application for an extension of time to commence judicial review proceeding – Where the Tribunal sent communications about its hearing to Applicant’s last provided email address in compliance with its statutory obligations – Where the Applicant failed to attend at the hearing before the Tribunal on the scheduled date – Where the Applicant filed the judicial review application some 393 days out of time – Where the underlying application has little or no prospects of success – Application for extension of time dismissed

 MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal – whether the Tribunal misconstrued reg 1.11A of the Migration Regulations 1994 (Cth) and asked itself the wrong question – no jurisdictional error – application dismissed

BANKRUPTCY – where the applicant failed to comply with Orders of the Court - where the proceeding has become stagnant – application dismissed.

INDUSTRIAL LAW – Admitted contraventions – imposition of pecuniary penalties – factors considered – penalties proposed by Applicant excessive – penalties imposed on the Respondents.

INDUSTRIAL LAW – Admitted contraventions – First Respondent in liquidation – imposition of pecuniary penalties on Second Respondent – factors considered – penalties imposed.

MIGRATION LAW – Judicial Review – Protection visa – where Tribunal’s decision does not disclose any breach of s 424A or s 424AA of the Migration Act – where the Tribunal does not contravene s 425 – where the Tribunal’s decision is not irrational or illogical – application dismissed

MIGRATION – Review of registrar’s decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed

BANKRUPTCY – where the applicant failed to comply with Orders of the Court - where the proceeding has become stagnant – application dismissed.

INDUSTRIAL LAW – Admitted contraventions – imposition of pecuniary penalties – factors considered – penalties proposed by Applicant excessive – penalties imposed on the Respondents.

INDUSTRIAL LAW – Admitted contraventions – First Respondent in liquidation – imposition of pecuniary penalties on Second Respondent – factors considered – penalties imposed.

MIGRATION LAW – Judicial Review – Protection visa – where Tribunal’s decision does not disclose any breach of s 424A or s 424AA of the Migration Act – where the Tribunal does not contravene s 425 – where the Tribunal’s decision is not irrational or illogical – application dismissed

MIGRATION – Review of registrar’s decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed

PRACTICE AND PROCEDURE – Application in a proceeding to set aside Registrar’s orders for substituted service of a bankruptcy notice on alleged debtor – where substituted service order obtained ex parte – whether solicitors for the Applicants complied with disclosure obligations on an ex parte application.

PRACTICE AND PROCEDURE – Application in a proceeding to set aside Registrar’s orders for substituted service of a bankruptcy notice on alleged debtor – where respondent’s location disclosed in affidavit filed in bankruptcy proceedings in the Federal Court to which the respondent was not a party – whether address for service obtained and used by applicants’ solicitor in breach of Harman undertaking – whether disclosed information filed pursuant to an obligation of compulsion.

BANKRUPTCY – Creditors petition application – application in a proceeding to set aside Registrar’s orders for substituted service of a bankruptcy notice on alleged debtor.

WORDS AND PHRASES – “must”  

PRACTICE AND PROCEDURE – Pleading – embarrassing pleading – failure to disclose reasonable cause of action – failure to plead component elements of cause of action.

INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – General protections – workplace rights – requirement to identify source of ability to complaint or inquire – requirement to identify nature and source of benefit, role or responsibility imposed by workplace law or instrument

FAIR WORK – where the applicant failed to comply with Orders of the Court – application dismissed.

MIGRATION – protection (subclass 866) visa – where application to the (then) Administrative Appeals Tribunal to review delegate’s decision was made outside the time prescribed – where Tribunal found it had no jurisdiction – applicant’s judicial review application summarily dismissed by Registrar – application for review of Registrar’s decision – where application for review was made outside the time prescribed – whether the applicant was notified of the time frame to lodge an application to the Tribunal – whether the delegate’s notification letter was defective – where there is no acceptable explanation for the delay – where the judicial review grounds have no reasonable prospects of success – where application for review of Registrar’s decision has no reasonable prospects of success – application to extend the time prescribed to apply for a review of the Registrar’s decision refused

MIGRATION – reinstatement application – application for review of a Registrar’s decision – whether reasonable explanation for non-attendance – prejudice – no arguable case – application dismissed.

PRACTICE & PROCEDURE – default, undue delay and improper conduct – overarching purpose of the Court’s civil practice and procedure provisions – order for costs against lawyer – referral to Victorian Legal Services Board and Commissioner.

MIGRATION LAW – application for extension of time – decision of delegate of Minister for Immigration – safe haven enterprise (XE-790) visa – where the application was filed 1 year and 11 months out of time – consideration of whether it is in the interests of justice to grant the extension of time – where applicant claims to have not been aware of the Immigration Assessment Authority decision – where numerous attempts had been made by the delegate to arrange a Safe Haven Enterprise Visa interview with the applicant to no avail – application dismissed with costs.

FAIR WORK - penalty judgment– where the respondent contravened s 45 of the Fair Work Act 2009 (Cth) – no loss or damage occasioned to the applicant – need to ensure - necessary to ensure specific and general deterrence – assessment of penalty.

PRACTICE AND PROCEDURE – application in a proceeding seeking the adjournment of a hearing date to enable the applicant to obtain legal representation – where the applicant took steps to obtain legal representation in a timely manner after being notified of the listing for hearing – where the applicant engaged a lawyer who then had to go overseas for personal reasons – adjournment granted.

INDUSTRIAL LAW – Where applicant alleged adverse action taken for a prohibited reason – where adverse action conceded – whether first respondent was involved in a contravention of the Fair Work Act – whether the second respondent was knowingly concerned in or a party to a contravention of the Fair Work Act – where the claim against the first respondent had been established – where the claim against the second respondent had not been established – orders accordingly.

FAIR WORK - penalty judgment– where the respondent contravened s 45 of the Fair Work Act 2009 (Cth) – no loss or damage occasioned to the applicant – need to ensure - necessary to ensure specific and general deterrence – assessment of penalty.

MIGRATION – Judicial Review – Where applicant was granted a refugee permit and permanent residence in third country prior to seeking protection in Australia – Where Administrative Appeals Tribunal (Tribunal) found that Australia did not have protection obligations by operation of s 36(3) – Where Tribunal considered incorrect test as to the meaning of s 36(3) – Error but not materiality conceded by Minister - Where possible that had Tribunal engaged with correct test outcome could have been different – Materiality established – writs issued

MIGRATION – Temporary Business Entry visas – decision of the then Administrative Appeals Tribunal – whether the Tribunal fell into jurisdictional error by making a finding contrary to a “concession” made by the Department – whether the applicants were denied an opportunity to address the Tribunal in that regard and thereby denied procedural fairness – jurisdictional error established – writs issued.

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to assess a protection claim or an integer of a claim – whether the Tribunal should have investigated the applicant’s protection claims for itself – whether the Tribunal’s approach to credibility was “unreasonable” – whether the applicant was denied procedural fairness – whether the Tribunal relied on incorrect information or decided using facts from another case – whether the Tribunal failed to comply with the mandatory requirement under s 424A of the Migration Act 1958 (Cth) (read with s 424AA of the Act) to give the applicant particulars of information it considered would be part of the reason for affirming the decision under review – no jurisdictional error – application dismissed.

MIGRATION – application for judicial review – protection visa – whether well-founded fear of harm – complementary protection – whether Tribunal considered applicant’s child in context of claims – application dismissed.