Judgments

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– 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.

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.

BANKRUPTCY – application for an extension of time to review a sequestration order made by a registrar – no substantive merit in grounds of opposition to creditor’s petition – extension of time application dismissed – application for annulment of respondents’ bankruptcies pursuant to s 153B of the Bankruptcy Act – consideration of principles and claims – res judicata – issue estoppel – Anshun estoppel – abuse of process – not satisfied appropriate to look behind judgment – service of bankruptcy notice disputed – discretion to annul bankruptcies does not arise – annulment application dismissed.  

PRACTICE AND PROCEDURE – application for leave to re-open application – consideration of exhibits after reservation of judgment – discretion exercised – found necessary in interests of justice to re-open application. 

BANKRUPTCY – creditor’s petition application – consideration of validity of bankruptcy notice – whether filing confirmation and default judgment are a final judgment – satisfied with formal proofs required – matter referred to a registrar for hearing of creditor’s petition.  

PRACTICE AND PROCEDURE – application for separate question to be heard pursuant to r 22.01 of the Rules – allowed – separate question answered. 

MIGRATION – application for judicial review – decision of the Administrative Appeals Tribunal affirming decision not to grant Protection (subclass 866) visa – whether Tribunal failed to consider evidence – whether Tribunal erred in making adverse credibility findings – no jurisdictional error established – application dismissed.

MIGRATION – Ex tempore – Protection (subclass 866) visa –judicial review – application for the review of a Registrar's decision – applicant was properly invited to hearing and failed to attend – failed to apply for reinstatement – no real or genuine dispute that might reasonably be resolved in an applicant’s favour – application dismissed.

MIGRATION – costs – application for above scale costs – where a further hearing date and additional submissions were required due to the late articulation of the applicant’s case – fixed costs order made.

MIGRATION – Subclass 500 (Student) visa – not open to conduct merits review of Tribunal decision – application dismissed.

MIGRATION LAW – JUDICIAL REVIEW – Where the Applicant is a citizen of Sri Lanka and of Tamil ethnicity – Whether the Immigration Assessment Authority failed to consider claims or integers of his claims – Whether the Authority failed to consider the claim that on return to Sri Lanka Tamil detainees face discriminatory mistreatment by prison officials – Whether the Authority failed to consider a claim of the Applicant’s particular vulnerability because of his past mistreatment by Sri Lankan authorities and that any display of that vulnerability on his return to Sri Lanka may attract further attention and suspicion – Whether the Authority mischaracterised the Applicant’s lawyers representations as “mere submissions” when it ought to have treated those representations as “corroborative evidence” of the Applicant’s vulnerability – Application dismissed.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – Tribunal satisfied there was evidence applicant gave bogus document to Department in relation to visa application – Tribunal reasonably suspected bank statement showing funds in account was counterfeit – whether error by Tribunal in finding that it “reasonably suspects” document was counterfeit – Tribunal relied on investigative report – whether Tribunal’s reliance on investigative report was unreasonable – Tribunal accepted bank statement was issued by bank – whether bank statement issued by bank could be counterfeit – application dismissed.  

MIGRATION – JUDICIAL REVIEW – Whether the Applicant gave the Minister evidence of financial capacity under cl. 500.214(3) of Sch. 2 to the Migration Regulations 1994 – Where the Tribunal was to apply the laws governing the exercise of its powers in force at the time of the Tribunal’s decision – Whether as a matter of jurisdictional fact the Tribunal required in writing the Applicant to give to it evidence of financial capacity under cl. 500.214(3) – Held Tribunal’s decision that the Applicant did not give it evidence of financial capacity which met the requirements in the legislative instrument was reasonable in the legal sense – Application dismissed. 

MIGRATION – JUDICIAL REVIEW – Extension of time – Where the delay is long – Where there is no satisfactory explanation for the delay – Where the proposed ground does not have reasonable prospects of success – An extension of time not needed in the interests of justice – Application for extension of time dismissed.

MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa - Application for judicial review – Whether applicant given meaningful opportunity to present evidence – Whether failure to provide procedural fairness – Application dismissed. 

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) – whether the IAA’s decision was legally unreasonable – contended issues with interpretation – whether the IAA’s decision was otherwise affected by legally relevant error – application dismissed. 

MIGRATION – judicial review application – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal complied with s 425 of the Act – whether Tribunal erred in making a decision on the review without taking any further action to enable applicant to appear – whether Tribunal was legally unreasonable – s 426A of the Act - no jurisdictional error established – application dismissed.  

MIGRATION – judicial review application – decision of Administrative Appeals Tribunal refusing to grant a protection visa – whether Tribunal made irrational findings - whether Tribunal failed to give proper consideration to the risk of harm to women in India - no jurisdictional error established – application dismissed.     

MIGRATION – judicial review – Student (Temporary) (Class TU) (Subclass 500) visa – genuine temporary entrant criterion in cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) – whether the Administrative Review Tribunal in applying the factors in Direction No. 108 failed to consider or overlooked the applicant’s reasons and circumstances – no jurisdictional error established – application dismissed.

MIGRATION – Judicial Review – protection visa – claimed fear of harm in Egypt from State and non-State actors on account of interfaith relationship between Christian man and Muslim woman – adverse credibility findings – legal unreasonableness – no jurisdictional error established – application dismissed.

MIGRATION – Judicial Review – protection visa – credibility assessment – whether Tribunal failed to consider evidence – whether Tribunal failed to properly inquire – whether Tribunal’s approach discloses bias or apprehended bias – whether Tribunal Member’s reliance on personal experience or knowledge discloses error – no jurisdictional error established – application dismissed.

MIGRATION – judicial review – Student (Temporary) (Class TU) visa – genuine temporary entrant criterion in cl 500.212 of the Migration Regulations 1994 (Cth) – whether the Tribunal failed to comply with the statutory obligations under s 359AA of the Migration Act 1958 (Cth) – whether the Tribunal took an adversarial and not an inquisitorial role in the proceedings – whether the Tribunal failed to consider the applicants’ substantial claims – whether the Tribunal was illogical and irrational and misinterpreted and misapplied cl 500.212 of the Regulations – no jurisdictional error established – application dismissed.

INDUSTRIAL LAW – PENALTY – two contraventions of the Fair Work Act 1975 (Cth) – breach of section 45 of the Act by failing to pay the applicant under clause 11.5 of the Hospitality Industry (General) Award 2020 – breach of section 536 of the Act by failing to provide a payslip to the applicant with the required information within the required time frame – where the applicant contends that pecuniary penalties are necessary – finding that the breaches occurred due to honest and reasonable oversights – no pecuniary penalty imposed. 

PRACTICE AND PROCEDURE – application for leave to file amended statement of claim – paragraph deals with multiple matters rather than separate matters – part of pleading does not state all material facts on which applicant relies – whether pleading omits element of cause of action for restitution – whether applicant should be granted leave to file revised amended statement of claim.

PRACTICE AND PROCEDURE – application to set aside subpoena – whether documents sought in each paragraph of subpoena have legitimate forensic purpose – whether subpoena involves attempt to obtain discovery. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether Tribunal erred in finding applicant not a temporary entrant under cl 500.212(a) – whether Tribunal erred in its findings regarding the extent of the applicant's personal ties to his home country – application of Direction 69 - no jurisdictional error established – application dismissed.  

MIGRATION – judicial review application – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal complied with s 425 of the Act – whether Tribunal erred in making a decision on the review without taking any further action to enable applicant to appear – whether Tribunal was legally unreasonable – s 426A of the Act - no jurisdictional error established – application dismissed.  

MIGRATION – judicial review application – decision of Administrative Appeals Tribunal refusing to grant a protection visa – whether Tribunal made irrational findings - whether Tribunal failed to give proper consideration to the risk of harm to women in India - no jurisdictional error established – application dismissed.     

MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa - Application for judicial review - Whether Tribunal failed to substantively engage with application for adjournment – Whether procedural fairness denied – Whether applicants were put on notice of the determinative issue on review - Application dismissed. 

MIGRATION – Safe Haven Enterprise (Subclass 790) visa - Application for judicial review – Whether the Immigration Assessment Authority failed to consider new information– Consideration of physical evidence provided at hearing before the delegate – Whether assessment of applicant’s claims had been adversely impacted by findings of credibility – Unreasonable or illogical reasoning – Application dismissed. 

MIGRATION – judicial review – decision of Administrative Review Tribunal refusing to grant protection visa – applicant requested hearing on papers – whether error by Tribunal in acceding to applicant’s request to make decision without holding hearing - application dismissed.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – applicant absent from Court hearing – dismissal for non-appearance.

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) – whether the Tribunal misconstrued or misapplied the concept of “significant harm” – whether the Tribunal’s decision was affected by bias – whether the Tribunal’s decision was affected by any other legally relevant error – application dismissed. 

MIGRATION – judicial review – decision of the Administrative Appeals Tribunal to affirm decision to refuse student visa – whether the primary applicant meets genuine temporary entrant criterion – where Tribunal carefully engaged with visa criterion – no error identified – application dismissed with costs.

PRACTICE AND PROCEDURE – where the applicant failed to appear at a listing before the Court relating to her judicial review application – application dismissed pursuant to r 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). 

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – where the Tribunal overlooked claims and evidence submitted by the applicant regarding the situation with his intended wife being an incentive for return to his home country – where the Tribunal instead considered that the applicant had given evidence that he was “not in a relationship” – where the Tribunal then relied upon a finding that the applicant’s ties home would not provide sufficient incentive for return – writs issued.

MIGRATION – judicial review – decision of Administrative Review Tribunal cancelling student visa – whether Tribunal erred in exercising discretionary power to cancel visa – applicant did not comply with condition of visa – whether Tribunal failed to consider substantially articulated claim – whether reasoning process of Tribunal was not intelligible – application dismissed.

INDUSTRIAL LAW – Interlocutory mandatory injunction – Serious question to be tried – Balance of convenience – Application dismissed. 

PRACTICE AND PROCEDURE – Re-opening of liability hearing – principles concerning re-opening – factors for consideration – whether admission of document into was irregular – where alleged fraud, misrepresentation and perjury concerning matters in the document – where alleged incompetence of lawyers – whether prejudice to other party – case management considerations – whether associated jurisdiction to be exercised in relation to new or revised claims.

PRACTICE AND PROCEDURE – Discovery of documents – principles in relation to discovery in this Court – where failure of application to re-open means that single document of which discovery sought is irrelevant.

MIGRATION – application for judicial review – decision of the Administrative Appeals Tribunal affirming decision not to grant Protection (subclass 866) visa – whether Tribunal failed to consider evidence –whether the Tribunal failed in its duty – whether the Tribunal failed to afford procedural fairness – no jurisdictional error established – application dismissed. 

MIGRATION – Whether Tribunal applied proper statutory test – whether applicant denied procedural fairness.  

MIGRATION LAW – where all of the grounds of review were unparticularised – where the applicant was in default at the time of the hearing before the Court - where it was impossible for the Court to properly adjudicate upon the applicant’s claims – where no jurisdictional error established – application dismissed. 

MIGRATION –Ex-tempore – judicial review – application for the review of a Registrar's decision – Employer Nomination (Class EN) (Subclass 186) visa –no approved nomination – no real or genuine dispute that resolvable in an applicant’s favour – application dismissed.  

MIGRATION – ex-tempore – judicial review – application for the review of a Registrar's decision – Student (Temporary) (Class TU) (Subclass 500) visa – applicant not enrolled in a course of study – no real or genuine dispute that resolvable in an applicant’s favour – no reasonable prospect of success – application dismissed. 

INDUSTRIAL LAW – General protections dismissal claim – Interlocutory Application – Where applicant made a general protections application involving dismissal to the Fair Work Commission – Where the Fair Work Commission did not issue a certificate pursuant to s 368(3)(a) Fair Work Act 2009 (Cth) – Where the applicant purported to file a general protections Court application in the absence of the certificate – Whether the Applicant’s dismissal-related pleadings should be struck out – the Court is jurisdictionally barred from considering any general protections dismissal claim – the Applicant’s dismissal-related pleadings are struck out. 

FAIR WORK – Fair Work Act 2009 (Cth) – Compliance Notice – whether validly issued – reasonable belief of Fair Work Inspector. 

INDUSTRIAL LAW – application for relief for alleged contraventions of s 340(1), s 351(1), and s 352 of the Fair Work Act 2009 (Cth) (FW Act) – whether the applicant exercised any one of the 24 classes of workplace rights on any one of the 188 occasions on which the applicant alleges he had exercised such rights throughout his employment with the respondent – whether the applicant was disabled – whether the first respondent took adverse action against the applicant by threatening on three separate occasions to dismiss the applicant if the applicant were to lodge a workers compensation claim – whether the first respondent had taken adverse action by threatening certain consequences if the applicant kept on bringing up the need for third party HR assistance – whether, in contravention of s 340(1), s 351(1), and s 352 of the FW Act respectively, the first respondent terminated the applicant’s employment because the applicant had exercised workplace rights, was temporarily absent from work, or had a disability – whether the second respondent was a person involved within the meaning of s 550 of the FW Act in the first respondent’s alleged contraventions of s 340(1), s 351(1), and s 352 of the FW Act – application dismissed. 

MIGRATION – apacplication for judicial review – 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 s 36(2)(a) or (aa) – delegate’s decision to refuse the grant of the visa affirmed – whether Tribunal’s decision was affected by jurisdictional error – no jurisdictional error established – application dismissed. 

MIGRATION – Protection (subclass 866) visa – judicial review – application for the review of a Registrar's decision – out of time – extension of time granted –no real or genuine dispute that resolvable in an applicant’s favour – application dismissed. 

MIGRATION – application for judicial review – 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 s 36(2)(a) or (aa) – delegate’s decision to refuse the grant of the visa affirmed – whether Tribunal’s decision was affected by jurisdictional error – no jurisdictional error established – application dismissed. 

CONSUMER LAW – Application for orders under s 101 of the National Credit Code to seize the vehicle – Costs.

MIGRATION – costs – application for costs fixed in an amount above scale – fixed costs order made.