Judgments

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 did not adequately consider or give sufficient weight to evidence and claims presented – whether the Tribunal made errors in its fact-finding process by not properly investigating or questioning the accuracy of the applicant’s claims – no jurisdictional error – application dismissed. 

MIGRATION – application for judicial review – protection visa – application filed out of time – whether an extension of time should be granted – length of delay and explanation for that delay – any prejudice caused – merits of the underlying application for review – application dismissed. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – no jurisdictional error established – application dismissed. 

 MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing Medical Treatment visa – whether Sch 2 cl 602.215 should be applied – whether applicant genuinely intended to stay temporarily in Australia – - Tribunal failed to consider relevant information - no jurisdictional error established – application dismissed.  

MIGRATION – judicial review application – decision of Administrative Appeals tribunal refusing grant of protection visa - whether Tribunal misunderstood the applicant’s evidence – no jurisdictional error established – application dismissed.  

MIGRATION – Protection visa refusal – judicial review of decision of Immigration Assessment Authority – suspected political group involvement – where Authority decided not to consider new information – where Authority found applicant’s political involvement low-level – no real chance of harm found – whether new information was credible personal information – whether Authority misunderstood or misapplied s 473DD – error established – whether error material – writs issued 

MIGRATION – judicial review application – decision of Administrative Appeals Tribunal refusing to grant partner visa – whether applicant provided bogus document - construction of “in relation to” in PIC 4020(1) – no jurisdictional error established – application dismissed.   

MIGRATION LAW – Where it was claimed that the Tribunal had misunderstood and misapplied subordinate legislation – where it was claimed that Tribunal had made a finding without there being any evidence to justify the finding - where claims made with an eye too keenly attuned to error – no jurisdictional error established – application dismissed.    

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant medical treatment visa – whether applicant satisfied genuine temporary entrant criteria for purpose of visa – applicant did not satisfy cl 602.212(6) – whether decision was decision was legally unreasonable - no jurisdictional error established – application dismissed. 

MIGRATION LAW – Where the applicant failed to establish that he had an ownership interest in one or more main businesses over a two-year period before he made application for a visa – where no jurisdictional error established on the part of the Tribunal – application dismissed. 

MIGRATION – Partner (Temporary) (Class UK) (Subclass 820) visa – review of a decision of the Administrative Review Tribunal – whether the Tribunal failed to consider all the circumstances of the parties’ relationship, including all the matters set out in r 1.09A(3) of the Migration Regulations 1994 (Cth) and failed to consider whether the applicant suffered family violence by the sponsor – no jurisdictional error established – application dismissed  

PRACTICE AND PROCEDURE – Application made by the First Respondent to amend defence – Where application granted – Greater weight given to the Respondents being able to advance all arguments than any prejudice to the Applicant

PRACTICE AND PROCEDURE – Affidavits – Late filing of Respondents’ affidavits permitted – No material prejudice to the Applicant 

INDUSTRIAL LAW – FAIR WORK – hospitality industry – application for penalties in relation to contraventions of general protections and various minimum entitlement, regular payment and payslip obligations under the Fair Work Act 2009 (Cth) – where default judgment was entered in respect for liability and the respondent has continued to elect not to participate in the proceedings for relief – final relief granted on default.   

 INDUSTRIAL LAW – FAIR WORK – hospitality industry – contraventions of general protections and various minimum entitlement, regular payment and payslip obligations arising under the Fair Work Act 2009 (Cth) – where default judgment was entered in respect of liability and the respondent has continued to elect not to participate in the proceedings for relief – final relief granted on default.  

INDUSTRIAL LAW – FAIR WORK – hospitality industry – application for penalties in relation to contraventions of general protections and various minimum entitlement, regular payment and payslip obligations under the Fair Work Act 2009 (Cth) – where default judgment was entered in respect for liability and the respondent has continued to elect not to participate in the proceedings for relief – final relief granted on default.    

CONSUMER LAW – application under s 100 and s 101 of the National Credit Code for access to residential premises for the purpose of taking possession of a vehicle claimed to be the subject of a security interest, and an order for possession of a vehicle – whether order should be made deeming service – whether preconditions for making of orders under s 100 and s 101 satisfied – orders made. 
 

CHILD SUPPORT – JURISDICTION – appeal from a decision of the Administrative Appeals Tribunal – where the applicant appealed under section 44AAA of the Administrative Review Tribunal Act 1975 (Cth) –  where the decision on appeal was made by a Deputy President of the Tribunal – consideration of jurisdiction under section 44 – consideration of whether the matter was heard on first review pursuant to section 3 – finding that the Federal Circuit and Family Court of Australia does not have jurisdiction to hear the appeal – appeal dismissed 

BANKRUPTCY – Ex Tempore - application for leave to distribute dividends to creditors of bankrupt estate – failure to file statement of affairs pursuant to s 54 of the Bankruptcy Act 1966 (Cth).   

MIGRATION – student (class TU) (subclass 500) visa – where delegate refused to grant applicant and his spouse a visa – judicial review – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – where former primary applicant abandoned visa application before Tribunal hearing – where applicant was formerly the dependent applicant to the visa application – where applicant attended Tribunal hearing as substituted primary review applicant – whether Tribunal’s decision attended by jurisdictional error – request under s 359A of the Migration Act 1958 (Cth) – whether Tribunal erred in inviting applicant to attend a hearing where he was not entitled to attend – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed. 

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 s36(a) or (aa) –Delegate’s decision to refuse the grant of Protection (Class XA) (Subclass 866) affirmed – whether in interests of administration of justice to grant an extension of time application – no substantial merit to grant extension of time found – application dismissed. 

MIGRATION – Decision of Administrative Appeals Tribunal to refuse medical treatment visa – whether medical evidence not considered – whether failure to consider treatment in home country – whether Tribunal should have made further enquiries – whether procedural fairness denied – application dismissed- procedural issue – admissibility of new medical evidence. 

MIGRATION - protection visa – application for judicial review of a decision of the then Immigration Assessment Authority – whether the Applicant was denied procedural fairness – whether the Authority otherwise made an error of law – non-identification of basis for contentions – no jurisdictional error established – application dismissed with costs.  

MIGRATION – protection visa – application for review of decision of the then Immigration Assessment Authority – whether the applicant was denied procedural fairness – where applicant made generalised allegations of error which were not particularised or developed – no jurisdictional error established – application dismissed with costs. 

MIGRATION - Protection (Class XA) (subclass 866) visa - Application for judicial review – Application for review of Registrar decision - Non-appearance of applicant - Application dismissed. 

MIGRATION – Judicial Review – protection visa – credibility assessment – inconsistencies and implausibilities – unwarranted assumptions – legal unreasonableness – whether Tribunal had proper regard to circumstances affecting the applicant’s ability to recall traumatic events when giving evidence – whether Tribunal failed to understand and thereby mischaracterised the applicant’s evidence – whether Tribunal failed to explain significance of inconsistency when reaching an adverse credibility finding – whether Tribunal relied upon an unwarranted assumption – where Tribunal reached findings based on common knowledge – no error disclosed – application dismissed.

MIGRATION - Student (Temporary) (Class TU) visa - Application for judicial review – Non-appearance of applicant - Application dismissed. 

MIGRATION – Judicial Review – Partner visa – Schedule 3 criteria – failure to satisfy criterion 3001 – Tribunal declined to assess whether applicant satisfies criteria 3003 and 3004 – whether Tribunal erred in finding no ‘compelling reasons’ existed for not applying certain Schedule 3 criteria – proper construction and application of cl 820.211(d)(ii) – misconstruction of statutory task – jurisdictional error established – application allowed.

BANKRUPTCY – Creditor’s petition – service of bankruptcy notice – parties have history of convoluted proceedings between each other – relevance of earlier discontinued proceedings against second respondent – exercise of court’s discretion to go behind judgment debt – relevance of counterclaim – extension of petition – overarching principle of civil litigation – relevance of fraud of first respondent – exercise of discretion – matters to be considered. 

PRACTICE & PROCEDURE – Fair Work proceedings – extension of time – General Protections claim – Australian Consumer Law -  whether leave should be granted for the General Protection claim to be filed out of time – whether leave should be granted for the applicant to rely upon causes of action the Court has previously dismissed – leave to rely on the General Protection claim refused – leave is granted for the applicant to pursue claims under the Australian Consumer Law. 

MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal relevantly erred in relying upon correspondence sent to an email address associated with the applicant’s representative – futility – application dismissed 

PRACTICE AND PROCEDURE – application for substituted service – whether it is impracticable to serve documents by hand – whether the proposed methods of service will result in the documents coming to the attention of the respondents – orders for substituted service made

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa - whether Tribunal’s credibility findings were unreasonable – no jurisdictional error established – application dismissed. 

MIGRATION LAW – judicial review of a decision of the Immigration Assessment Authority to not grant a protection visa – fast track decision – consideration of well-founded fear of persecution by reason of the heavy discrimination of Tamils in Sri Lanka – reasons of the IAA do not embrace a claim with respect to discrimination – particular not subsumed by the generality – no error in consideration of material before the IAA – application allowed 

MIGRATION – Student visa refusal – decision of the Administrative Appeals Tribunal to confirm its dismissal for non-appearance – where the applicants did not apply for reinstatement – where the primary applicant submits circumstances beyond her control were not considered by the Tribunal – application dismissed 

MIGRATION – Protection (Class XA) (subclass 866) visa – application for extension of time to bring application for judicial review of a decision of the Administrative Appeals Tribunal that it lacked jurisdiction to review application – extension of time not necessary in the interests of the administration of justice – application for extension of time is refused 

MIGRATION – application for judicial review of decision made by the Administrative Appeals Tribunal – student visa – whether the Tribunal made an express finding that the applicant genuinely intends to stay temporarily – no jurisdictional error established – application dismissed.   

MIGRATION LAW – application for judicial review of a decision of the Administrative Appeals Tribunal to not grant a protection visa – application filed 900 days out of time – substantial delay – inadequate explanation for delay – application lacks merit – extension not in the administration of justice – application dismissed with costs 

MIGRATION - judicial review – decision of Administrative Appeals Tribunal refusing to grant partner visa – Tribunal refused to permit applicant to give oral evidence at hearing – whether breach of procedural obligation – whether Tribunal failed to provide applicant with meaningful opportunity to present case - whether Tribunal’s procedural decision to refuse to permit applicant to give oral evidence was legally unreasonable – whether reasons provided by Tribunal for refusing to permit applicant to give oral evidence were complete explanation for exercise of power or discretion

MIGRATION – judicial review – whether Tribunal ought to have adjourned hearing or given applicants additional time after hearing to obtain and provide further evidence to Tribunal – whether Tribunal’s procedural decision not to adjourn hearing was legally unreasonable – whether Tribunal’s procedural decision not to give applicants additional time to obtain evidence was legally unreasonable 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – applicant claimed to have poor mental state or mental health condition on day of hearing before Tribunal - whether Tribunal overlooked this matter – complaint by applicant about conduct of migration agent at hearing before Tribunal – whether agent’s conduct might be fraud which vitiated or made invalid Tribunal’s decision

PRACTICE AND PROCEDURE – whether applicant should be given additional time to file and serve evidence

MIGRATION LAW – JUDICIAL REVIEW – Medical treatment visa – Where the Tribunal was satisfied that the Applicant met some but not all of the criteria for the grant of a visa – Where the Applicant had made arrangements for medical treatment in Australia and met criteria for the grant of a visa under cl. 602.212(2) of Schedule 2 to the Migration Regulations 1994 – Where the Tribunal found that the Applicant did not genuinely intend to stay temporarily in Australia and did not meet the criteria under cl. 602.215 for the grant of a visa – Whether the Tribunal failed to consider the Applicant’s compelling circumstances – Whether the Tribunal’s conclusion was legally unreasonable – Held no jurisdictional error – Application dismissed 

MIGRATION LAW – JUDICIAL REVIEW – Medical treatment visa – Where the visa applicant was seeking a medical treatment visa because he was his wife’s support person – Where the Tribunal accepted that the Applicant met the primary criterion in cl. 602.212(4)(a) of Sch. 2 of the Migration Regulations 1994 because he sought to give “emotional and other support” to his wife – Where the Applicant’s wife visa application was refused because the Tribunal was not satisfied that she intended to stay temporarily in Australia and therefore did not meet the primary criterion in cl. 602.215 – Where Tribunal held as a result the Applicant did not meet the criterion in cl. 602.212(4)(b) that the person to whom he was to provide support held medical treatment visa – Tribunal correctly refused the visa – Application dismissed.  

MIGRATION LAW – Where the ground of review was meaningless and wholly lacking in particularity – where the applicant was in default of an order made by a Registrar at the time of the hearing – where an adjournment had already been granted allowing the applicant to seek legal representation – where after a delay of some four months before the matter was next listed for hearing, the applicant had failed to obtain legal representation at the time of the hearing – where the interests of the due administration of justice did not require the Court to act as the applicant’s advocate in the proceeding – no jurisdictional error established – application dismissed. 

MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – whether Authority failed to consider information provided by representative to Authority. 

MIGRATION – application for Employer Nomination Scheme (Subclass 186) visa – where Administrative Appeals Tribunal not satisfied that applicant had a valid nomination as required by cl 186.233(3) – Tribunal found no jurisdiction to hear nomination application – summary dismissal application by Minister dismissed – application for judicial review – no meaningful ground of jurisdictional error asserted – no jurisdictional error established – application for judicial review dismissed.  

MIGRATION – application for judicial review – student (Temporary) (Class TU) (Subclass 500) visa – where Administrative Appeals Tribunal affirmed decision not to grant applicant the visa as applicant failed to satisfy cl 500.212(a) of the Regulations – whether Tribunal failed to take into account relevant considerations – found no jurisdictional error on behalf of the Tribunal – application dismissed. 

BANKRUPTCY - Application for review of a Registrar’s decision to make sequestration order – Hearing de novo – Discretion not to make an order – Solvency – Annulment – Application dismissed. 

CHILD SUPPORT - Writ of certiorari issues quashing the decision of Administrative Appeals Tribunal - writ of mandamus issues requiring the Administrative Review Tribunal to determine the application made to it for review according to law - no order for costs  

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 s36(a) or (aa) – affirmed Delegate’s decision to refuse the application for the Protection (Class XA) (Subclass 866) visa – whether in the interests of administrative of justice to grant an extension of time application – no substantial merit to grant extension of time found – application dismissed.

FAMILY LAW – PROPERTY – Short relationship – Valuation of assets of a dairy company – Whether certain assets are owned by the company or by the Husband – Whether the Husband’s father holds milk income of the company that should be included in the company assets – Whether all the purported expenses of producing the milk should be accepted – Whether the milk income should be ‘added back’ to increase the value of the company’s assets – Whether the company had a lease agreement with the Husband justifying the withdrawal of monies from the company for ‘lease payments’ or should those monies also be added back to form part of the company’s assets – the quantum of the company’s directors loans – Whether the Husband has a personal loan to his father – Whether the Court should take a one, two or three pool approach – Whether it is just and equitable for an order to be made – 

EVIDENCE – The impact of the failure of the Husband to call his father as a witness – Whether the Wife’s ‘estimated’ value of chattel items is admissible evidence – Whether her estimate was an ‘admission’ and thereby an exception to the hearsay and opinion rules - Whether there has been full and frank disclosure. 

FAMILY LAW – Costs application – where final property and parenting orders were made by consent – conduct contrary to overarching purpose – whether there were exceptional circumstances to warrant an order for indemnity costs against the respondent husband as sought by the applicant wife – where the respondent’s conduct has been poor – just to make a costs order – special costs order made against the respondent husband