Judgments

MIGRATION – extension of time – applicant filed 1 day out of time – Subclass 573 Higher Education Sector visa – where Administrative Appeal Tribunal affirmed the decision of the first respondent to cancel the applicant’s visa – whether the Tribunal failed to accord the applicant procedural fairness – where grounds largely unparticularised – found no unreasonableness, irrationality or illogicality in the Tribunal’s decision  – found grounds of substantive application not reasonably arguable – found it not in the interests of the administration of justice that there be an extension of time – application dismissed. 

MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa – whether the Authority failed to consider a claim – whether the Authority was unreasonable or illogical – whether the Authority misunderstood or misapplied s.473DD(b)(ii) of the Migration Act 1958 regarding credible personal information.

MIGRATION – judicial review application – decision of Administrative Appeals Tribunal refusing to grant Training (class GF) Training (subclass 407) visa – whether Tribunal provided detailed reasons of the genuine position assessment of the second training visa - no jurisdictional error established – application dismissed. 

MIGRATION – judicial review application – decision of Administrative Appeals Tribunal refusing to grant Medical Treatment (Visitor) (class UB) Medical Treatment (subclass 602) visa – whether Tribunal afforded applicant procedural fairness – whether Tribunal had jurisdiction - no jurisdictional error established – application dismissed.   

CONSUMER LAW – Application for orders under s 123 of the Personal Property Securities Act 2009 (Cth) to seize the vehicle from the premises of a non-party – Costs.

PRACTICE AND PROCEDURE – application to restrain legal practitioners from acting for the applicant – where a former solicitor from the applicant’s representative firm had previously worked for the respondents – whether the applicant has an unfair forensic advantage – interlocutory application dismissed. 

MIGRATION – extension of time – applicant filed 1 day out of time – Subclass 573 Higher Education Sector visa – where Administrative Appeal Tribunal affirmed the decision of the first respondent to cancel the applicant’s visa – whether the Tribunal failed to accord the applicant procedural fairness – where grounds largely unparticularised – found no unreasonableness, irrationality or illogicality in the Tribunal’s decision  – found grounds of substantive application not reasonably arguable – found it not in the interests of the administration of justice that there be an extension of time – application dismissed. 

MIGRATION – application for judicial review – Student (Temporary) (Class TU) (Subclass 500) visa – where Tribunal found no evidence before it that the applicant was enrolled in a course of study and concluded that cl 500.211 of sch 2 of the Migration Regulations 1994 (Cth) was not met – consideration of oral application for adjournment – adjournment request denied – found no jurisdictional error – application dismissed. 

MIGRATION – extension of time application – applicant filed 1 day out of time – Student (Temporary) (class TU) Student (subclass 500) visa – where Administrative Appeal Tribunal affirmed the decision of the first respondent to refuse to grant the applicant the visa – whether the applicant had complied with cl 500.211 of the Migration Regulations 1994 (Cth) – where applicant was not enrolled in a registered course of study at the relevant time – whether the Tribunal failed to consider the personal circumstances and financial hardship of the applicant – founds grounds not reasonably arguable – application dismissed. 

MIGRATION – application for review of Registrar’s decision – hearing de novo of first respondent’s application for summary judgment – where applicant applied for judicial review of decision of Administrative Appeals Tribunal – where Registrar made judgment for the first respondent against the applicants and dismissed the substantive application – where review of Registrar’s decision filed seven days out of time – where Tribunal found it did not have jurisdiction to conduct review – well settled that the Tribunal has no power to extend the time period for the lodging of an application for review before it – where applicants sought judicial review of Delegate’s decision – found this Court has no jurisdiction to review a “primary decision” as defined in s 476(4)(b) of the Migration Act 1958 (Cth) – where the Tribunal correctly found that it did not have jurisdiction to conduct the review – application dismissed. 

MIGRATION LAW – whether the Tribunal conducted a proper hearing – whether the Tribunal failed to consider the applicant’s claims – whether the applicant was denied procedural fairness – no jurisdictional error established – application dismissed. 

MIGRATION – application for review of a Registrar’s decision – hearing de novo of applicant’s application for reinstatement of their substantive application for an extension of time in which to seek judicial review of decision of the Administrative Appeals Tribunal – where applicant’s substantive application dismissed for non-appearance – where applicant’s reinstatement application dismissed by Registrar – applicant’s substantive application filed 455 days out of time – found grounds of substantive application not reasonably arguable – application dismissed. 

MIGRATION – application for judicial review – Safe Haven Enterprise (Subclass 790) visa) – where Immigration Assessment Authority affirmed the decision of the first respondent that the applicant is not a person in respect of whom Australia has protection obligations – whether the Authority failed to take into account relevant considerations – where singular ground unparticularised – found no jurisdictional error – application dismissed. 

MIGRATION – judicial review application – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal failed to give weight to evidence – whether Tribunal acted unreasonably - where non-disclosure certificate under s 438 was invalid - no jurisdictional error established – application dismissed.    

MIGRATION – application for review of Registrar’s decision – hearing de novo of applicant’s application for reinstatement of their substantive application for judicial review – where applicant’s substantive application dismissed for non-appearance at callover hearing – where applicant’s reinstatement application dismissed by Registrar – where applicant applied for judicial review of decision of Administrative Appeals Tribunal – Student (Temporary) (Class TU) (Subclass 500) visa – where Tribunal affirmed decision of first respondent that applicant did not meet cl 500.311 of sch 2 of the Migration Regulations 1994 (Cth) as applicant was not a “member of the family unit” of a person who held the visa – found no reasonable excuse for the applicant’s non-appearance at callover hearing – found grounds of substantive application had no reasonable prospects of success – application dismissed. 

INDUSTRIAL LAW – application for summary dismissal – where applicant alleges unlawful termination of employment in breach of s 772 of the Fair Work Act 2009 (Cth) – where the applicant previously applied to the Fair Work Commission for an unfair dismissal remedy – where no certificate issued by the Fair Work Commission – whether the applicant is precluded from making an unlawful termination application by operation of s 723 – whether the Court has jurisdiction – found the Court has no jurisdiction – where parties entered into a deed of release – whether deed bar to proceeding – found claims under the originating application have no reasonable prospects of success – application dismissed. 

INDUSTRIAL LAW – where respondent showed no contrition or regret for her contravention of the provisions of the Fair Work Act – where general deterrence principles required to be applied in the handing down of pecuniary penalty orders – where appropriate orders made. 

HUMAN RIGHTS - Disability discrimination – whether in terminating an employee’s employment the employer unlawfully discriminated against employee because of a disability the employer imputed to the employee – whether in terminating the employee’s employment to whom the employer imputed a disability the employer failed to make reasonable adjustments for the employee – unlawful discrimination not established. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – no point of principle – application dismissed. 

MIGRATION – application for judicial review – safe haven enterprise (class XE) (subclass 790) visa – decision of the Immigration Assessment Authority (‘Authority’) – where the applicant claims that the Authority failed to consider relevant country information – where the applicant claims that the Authority did not consider the applicant’s submissions regarding the cyclical nature of violence in the applicant’s receiving state – consideration of whether the Authority considered relevant country information – consideration of whether the claim relating to the nature of the violence in the applicant’s receiving state was considered by the Authority to any extent necessary – finding that the Authority did not consider all relevant evidence – finding that the applicant’s claim regarding the nature of the violence ought to have been considered  – writs issued. 

MIGRATION – application for review of a registrar’s decision to dismiss the proceeding – protection visa – whether the applicant has reasonable prospects of successfully prosecuting the proceeding – where the Administrative Appeals Tribunal dismissed the application for non-appearance – application for review of a registrar’s decision dismissed – orders of the judicial registrar affirmed. 

MIGRATION – protection visa – fear of harm on account of political opinion – whether Tribunal failed to consider claims and evidence – whether Tribunal properly applied the ‘real chance’ test in s 5J of the Migration Act 1958 (Cth) – whether Tribunal properly considered DFAT Country Information Report – whether Tribunal’s decision not to obtain evidence from the applicant’s witness gave rise to error – legal unreasonableness and the exercise of a discretionary power – jurisdictional error established – application allowed. 

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) – where the IAA declined to consider a sizable country information report due to a mistaken understanding that it was precluded from doing so by s 473DD of the Migration Act 1958 (Cth) – materiality – writs issued.

MIGRATION – application for extension of time – partner (temporary) (class UK) visa – where the applicant’s application to the Tribunal was made out of time– where the applicant claims that her former representative failed to notify her of the visa refusal – consideration of whether the Department complied with its obligations under section 66 of the Migration Act 1958 (Cth) by notifying the applicant via their nominated email address – no jurisdictional error established – application dismissed with costs. 

MIGRATION – application for judicial review – decision of the Administrative Appeals Tribunal – Employer Nomination (Permanent) (Subclass 186) visa – where the applicant did not have an approved nomination – application dismissed with costs.

MIGRATION – application for review of a Registrar’s decision – regional employer nomination visa – applicant did not have an approved nomination – finding that there are no reasonable prospects of success in the substantive application – application for review dismissed with costs. 

FAIR WORK – assessment of pecuniary penalties, costs and interest following default judgment – declaration of contravention of civil remedy provisions of the Fair Work Act 2009 (Cth) made previously – respondent did not participate in proceedings – orders made. 

INDUSTRIAL LAW – FAIR WORK – parties by consent seek a declaration of the respondent’s contraventions of the Fair Work Act 2009 (Cth) (‘FW Act’) – where the respondent concedes failure to comply with compliance notice issued under FW Act – parties jointly seek imposition of penalties within an agreed range – consideration of appropriate level of penalty to be imposed – declaration of contraventions and penalty orders made. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visas – whether failure of Tribunal to disclose invalid certificate to applicant involved denial of procedural fairness – whether Tribunal failed to deal with claims raised by applicant – whether Tribunal erred in application of real chance test. 

MIGRATION – application for extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal where it found it had no jurisdiction to review the delegate’s decision refusing to grant the applicant a Bridging E (Class WE) visa – the Tribunal correctly decided that it had no jurisdiction in relation to the delegate’s decision refusing to grant a Bridging E visa – extension of time application refused – judicial review application dismissed. 

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – contention that the IAA failed to consider a claim – whether the claim “clearly emerged” – whether the IAA’s findings were in any event dispositive – application dismissed. 

MIGRATION – application for review of registrar’s decision to summarily dismiss judicial review application – application for Regional Employer Nomination (Permanent) (Class EN) (Subclass 186) visas – de novo hearing of summary judgment application – no reasonable prospects of success - no substantive merit to application – review application dismissed. 

MIGRATION – regional employer nomination visa – application for review of a summary dismissal decision made by a Registrar taken to have been filed 6 days outside of proscribed timeframe – consideration of factors relevant to exercise of the discretion to allow further time for filing – application devoid of merit – application refused with costs.

MIGRATION – judicial review – decision of delegate refusing to waive no further stay condition 8534 to which visa was subject – delegate not satisfied compelling and compassionate circumstances had developed – whether error by delegate in referring to incorrect condition – whether error by delegate in not referring to previous waiver requests and evidence provided in support of previous waiver requests – whether denial of procedural fairness - application dismissed. 

INDUSTRIAL LAW – FAIR WORK – application for relief following declarations of admitted contraventions of s.716(5) for failure to comply with a statutory compliance notice and s.536 for failure to issue pay slips within one working day of payment – consideration of relevant factors – orders to remedy effect of non-compliance with interest and pay pecuniary penalties. 

MIGRATION – student visa cancellation – where failure to maintain enrolment gave rise to breach of visa condition – whether Tribunal failed to consider oral and written evidence – whether Tribunal’s refusal to adjourn was legally unreasonable – whether the delay in providing a written statement of the Tribunal’s oral decision resulted in jurisdictional error – whether discrepancies between oral statement and written statement or reasons reveal error – no jurisdictional error established – application dismissed. 

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – application for an extension of time – where the delay was significant – where the explanation for the delay was unsatisfactory – where the substantive application has little merit – application for extension of time dismissed. 

MIGRATION – application for judicial review of a decision made by the Immigration Assessment Authority affirming a decision not to grant the applicant a protection visa – whether the Authority failed to consider all claims and evidence presented by the applicant – whether the Authority failed to give the applicant an opportunity to comment on an issue in dispute – where the Authority found that s 91W of the Migration Act 1958 (Cth) applied and the delegate found that the applicant had a reasonable explanation for not providing documents of his identity – whether the Authority failed to take into account specific documents in making its findings for the purposes of s 91W – whether the Authority denied the applicant procedural fairness or acted unreasonably in not inviting the applicant to provide further evidence in relation to s 91W – no jurisdictional error – application dismissed.  

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal correctly found that it lacked jurisdiction in the matter by reference to the application to it being made out of time – whether the applicant was validly notified of the Delegate’s decision – Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 – writs issued. 

MIGRATION – Skilled (Provisional) (Class VC) visa –Administrative Appeals Tribunal – Five grounds of judicial review – Applicant advanced eight further grounds of judicial review – Whether the Tribunal failed to abide by its procedural fairness obligations – Whether the Tribunal failed to comply with law – Whether the Tribunal acted ultra vires – Grounds of judicial review have no merit – Impermissible merits review – Application dismissed with costs. 

BANKRUPTCY – Interlocutory application made by the bankrupt seeking interim orders to restrain the Trustee from executing statutory duties – Injunctions – Balance of convenience – Application dismissed. 

BANKRUPTCY – application to review a sequestration order made by a registrar – de novo hearing of creditors’ petition – where first applicant made bankrupt after presentation of creditors’ petition – effect of first applicant’s bankruptcy on proceedings – whether two of three joint creditors can prosecute creditors’ petition - application for leave to re-open – whether joinder appropriate – whether remaining applicants have the right to prosecute creditors’ petition – not satisfied in interests of justice – review allowed – sequestration order set aside. 

MIGRATION – (Subclass 187) visa – Judicial review of Tribunal’s decision – Where Applicant provided a bogus document or information that is false or misleading in a material particular – Where Tribunal found that PIC4020 criterion not satisfied – Whether compelling or compassionate circumstances existed for waiver of public interest criteria – No jurisdictional error – Application dismissed.  

MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal affirming a decision refusing to grant the applicant a protection visa – whether the Tribunal failed to afford the applicant a fair hearing due to interpreter errors – 
whether the Tribunal failed to consider the correct social group to which the applicant belongs and thus misapplied the refugee criterion – whether the Tribunal failed to consider all claims and evidence presented by the applicant – no jurisdictional error – application dismissed. 

MIGRATION – Protection (subclass 866) visa – Judicial review of Tribunal’s decision – Where Tribunal made adverse credibility findings – Whether the Tribunal failed to give sufficient weight to evidence or information before it – Whether the Tribunal failed to
consider the applicant’s circumstances – Whether Tribunal’s decision was unreasonable – No jurisdictional error – Application dismissed.

MIGRATION – Immigration Assessment Authority – protection visa – whether the Authority failed to consider a claim that was said to arise on the materials – whether the Authority’s conclusions were irrational. 

FAIR WORK – retail industry – failure to comply with statutory compliance notice – where default judgment was entered in respect of liability and respondent has continued to elect not to participate in the proceedings for relief –final relief granted on default. 

INDUSTRIAL LAW – alleged dismissal in contravention of a general protection in the Fair Work Act 2009 (Cth) – where a litigation guardian has been appointed for the applicant – settlement of proceeding – approval of the settlement by the Court. 

MIGRATION – Immigration Assessment Authority – temporary protection visa - whether the Authority failed to consider a claim – whether the Authority failed to properly assess discrepancies in the applicants’ evidence – whether the Authority failed to consider whether the applicants faced a real chance of persecution by reason of the first applicant’s Afghan appearance.

MIGRATION – Administrative Appeals Tribunal – Other Family (Residence) (class BU) Remaining Relative (subclass 835) visas – Whether the Tribunal applied a strict application of reg 1.15 of the Regulations – Sole ground of judicial review has no merit – Application dismissed with costs.