Judgments

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. 

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

MIGRATION – where application for judicial review of a decision of the then Administrative Appeals Tribunal was filed outside of the statutory timeframe – where substantive application unmeritorious – held that further time for making the application not be allowed. 

MIGRATION – application for judicial review – Safe Haven Enterprise (Subclass 790) visa – Immigration Assessment Authority not satisfied Applicant met s 36(2) of the Migration Act – where Applicant purported to provide new information under s 473DD – whether decision was affected by jurisdictional error – no jurisdictional error established – application dismissed. 

FAIR WORK – construction industry – application for relief in respect of admitted contravention of s.716(5) by reason of failure to comply with statutory compliance notice – consideration of relevant factors – declaration of contravention made and respondent ordered to pay pecuniary penalty.

BANKRUPTCY –  Application to remove respondent as the Trustee of bankrupt estate – Applicant sought to replace the Trustee with another trustee – Applicant seeks for the respondent to pay costs personally – Applicant sought for the respondent to have costs reimbursed –  Application dismissed. 

MIGRATION – application for judicial review of decision made by the Administrative Appeals Tribunal – medical treatment visa – use of a remote hearing process – whether the Tribunal failed to comply with procedural fairness obligations – application dismissed. 

FAMILY LAW – PARENTING – Whether final parenting orders made in 2019 (and amended in 2022) should be reconsidered – Where the father claims that one of the children’s health and behaviour has deteriorated since the order was made - Where he claims the children’s views should now be given weight - Where he says that his ability to communicate with the mother has deteriorated – Where the mother and the ICL submit that there has not been a significant change in circumstances and it is not otherwise in the children’s best interest to reconsider the orders. 

FAMILY LAW – just and equitable to make payment out of charge to State Revenue - interim property distribution in favour of the wife – s 102NA order - interlocutory orders still in force.   

MIGRATION – judicial review of a decision of the Immigration Assessment Authority (the Authority) – whether the Authority’s finding that the applicant did not face a well-founded fear of persecution in Sri Lanka due to his diaspora activities in Australia was legally unreasonable – no jurisdictional error – application dismissed. 

MIGRATION – judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) – whether the Tribunal’s credibility finding was legally unreasonable, irrational or illogical – no error established – application dismissed. 

MIGRATION – JUDICIAL REVIEW – Where a Registrar summarily dismissed the Applicant’s judicial review application – Application for an extension of time for review of the Registrar’s decision – Where the court was satisfied that the Applicant has no reasonable prospect of successfully prosecuting his judicial review proceeding it was not in the interests of justice to extend time for his application for review of the Registrar’s decision – Application for extension of time dismissed. 

MIGRATION – protection visa – decision of the Administrative Review Tribunal – judicial review – no appearance by or on behalf of the applicants – 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 by the Administrative Appeals Tribunal – whether the Tribunal failed to consider an integer of the applicant’s claims – whether the Tribunal’s reasoning was logically available to it – limitations of the Court’s role in judicial review proceedings – application dismissed.

INDUSTRIAL LAW – termination of employment – general protections claim - where parties agreed the applicant exercised a workplace right – whether applicant was terminated for a prohibited reason – application dismissed.  

MIGRATION – Judicial review – Administrative Appeals Tribunal (as it then was) – whether the Tribunal erred in finding that there was a ground of cancellation under s 116(1AA) – whether the Tribunal failed to give proper, genuine and realistic consideration to the risk of harm to the applicants if returned to home country – whether the Tribunal failed to consider the best interests of the applicants’ Australian citizen children and the harm they would face if returned to Sri Lanka – Court finds no jurisdictional error made by the Tribunal – Application dismissed 

MIGRATION – protection visa – decision of the Administrative Review Tribunal – failure to appear before the Tribunal – where Tribunal dismissed the application pursuant to s 99 of the Administrative Review Tribunal Act 2024 (Cth) – whether the applicant was afforded sufficient time to prepare materials – whether the Tribunal failed to consider the applicant’s grounds – no jurisdictional error established – application dismissed. 

MIGRATION – judicial review – Student (Temporary) (Class TU) (Subclass 500) visa – genuine temporary entrant criteria in cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) in force from 23 March 2024 – delegate’s decision not reviewable by the Administrative Review Tribunal as applicant applied for the visa whilst offshore – the Court has jurisdiction to review the delegate’s decision as it is not a primary decision – whether the delegate misapplied and misconstrued cl 500.212 and Direction No. 106 – whether the delegate failed to properly consider the applicant’s evidence in considering the factors mandated by Direction No. 106 – no jurisdictional error disclosed – application dismissed. 

MIGRATION – judicial review – Student (Temporary) (Class TU) (Subclass 500) visa – genuine temporary entrant criteria in cl 500.212 of the Migration Regulations 1994 (Cth) – whether the Administrative Appeals Tribunal misconstrued and misapplied cl 500.212 of the Regulations – whether the Tribunal took into account an irrelevant consideration for the purposes of cl 500.212(a) and applying Direction No. 69 – whether the Tribunal was required to consider each of subclauses (a), (b) and (c) of cl 500.212 of the Regulations – whether the Tribunal’s findings were irrational or illogical – no jurisdictional error disclosed – application dismissed.

MIGRATION – Administrative Appeals Tribunal – Protection (Class XA) (subclass 866) visa – Whether the Tribunal failed to consider the personal circumstances of the applicant – Sole ground of judicial review has no merit - No jurisdictional error is made out – Application dismissed with costs.

MIGRATION – temporary protection visa – decision of the then Immigration Assessment Authority – whether the IAA misapplied the real chance test – whether country information misconstrued – jurisdictional error established – writs issued. 

MIGRATION – practice and procedure – application for an interlocutory injunction restraining the Commonwealth and the Secretary of the Department of Home Affairs from removing the applicant from Australia pending the determination of claims for relief the applicant has brought in relation to two applications the applicant made under s 46A(2) of the Migration Act 1958 (Cth) – whether applicant has a prima facie case – whether the balance of convenience favours the granting of an injunction – interlocutory injunction granted. 

MIGRATION – judicial review of decision of the Administrative Appeals Tribunal – medical treatment visa refusal – cl 602.215 – Tribunal not satisfied applicant genuinely intended to stay in Australia temporarily for medical treatment – application dismissed – reasons delivered ex tempore.

MIGRATION – Administrative Appeals Tribunal – Employer Nomination (Permanent) (Class EN) (subclass 186) visa – Two grounds of judicial review – Whether the Tribunal's decision was unreasonable – Whether the Tribunal failed to consider relevant information – Grounds of judicial review have no merit – Remitting the matter would be futile – Application dismissed with costs.

MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) – Alleged failure to accord procedural fairness and natural justice – Sole ground of judicial review has no merit – Application dismissed with costs. 

MIGRATION – Judicial Review – absence of approved nomination – futility – no jurisdictional error established – Ministerial intervention – application dismissed.

MIGRATION – Safe Haven Enterprise (subclass 790) visa – Application for an extension of time – Immigration Assessment Authority – Whether the Authority took an unduly narrow construction of s 473DD – Whether the Authority did not consider integers of the applicant's claims – Grounds of judicial review have no merit – Extension of time refused – Application dismissed with costs. 

MIGRATION – Safe Haven Enterprise visa – Immigration Assessment Authority – whether the Authority failed to consider an express integer of a claim for protection and ignored relevant country information – sole ground of judicial review has no merit – application dismissed with costs. 

MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – Protection (Class XA) (Subclass 866) visa – whether the Tribunal conducted the hearing before it fairly – allegation that the applicant’s case was not fairly conducted because the Tribunal repeatedly asked various questions and the applicant was confused – whether the Tribunal failed to ask the applicant to provide evidence in support of her claim – no jurisdictional error disclosed – application dismissed. 

MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – Protection (Class XA) (Subclass 866) visa – whether the Tribunal was biased – whether the Tribunal failed to consider the applicants’ claims – no jurisdictional error disclosed – application dismissed. 

MIGRATION – Administrative Appeals Tribunal – Subclass 187 Regional Sponsored Migration Scheme Visa – Review of a Registrar’s decision – Extension of Time – Whether the Tribunal denied the applicant procedural fairness – Whether the Tribunal fell into jurisdictional error – No jurisdictional error is made out – Application dismissed with costs. 

MIGRATION – Protection (subclass 866) visa – Review application filed outside the prescribed period – Whether Tribunal lacked jurisdiction – Where applicant made oral submission alleging fraud by authorised recipient – Whether decision of Tribunal affected by fraud – Whether applicant afforded natural justice – Whether Applicant entitled to a hearing – No jurisdictional error – Application dismissed. 

INDUSTRIAL LAW – contravention of s 340 of the Fair Work Act 2009 (Cth) – determination of the appropriate penalty. 

CONSUMER LAW – interlocutory application for further and better discovery and additional discovery – whether the respondents have already provided adequate discovery in the proceeding – whether further discovery would be disproportionate to the issues remaining in contention – consideration of the Court’s overarching purpose – interlocutory application refused.  

MIGRATION – Protection (subclass 866) visa – Application for judicial review – Where Tribunal undertook search but did not inform Applicant – Whether results constituted ‘information’ relied upon by Tribunal to affirm decision – Whether procedural fairness obligation in s 424A(1) enlivened – Where Applicant not afforded procedural fairness – Jurisdictional error found – Whether error material – Decision quashed. 

MIGRATION – judicial review – Protection (Class XA) (subclass 866) visa – whether the Tribunal lawfully exercised its powers under s 106(1) of the Administrative Review Tribunal Act 2024 (Cth) to make its decision on the documents without holding a hearing where it determined the matter on a different dispositive issue to that of the delegate – what is required for a valid request for the purposes of s 106(3)(b)(ii) – meaning of the phrase “it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding” – whether or not the preconditions in s 106(3) are met is a question of jurisdictional fact which is subject to judicial review by the courts – no jurisdictional error disclosed – application dismissed 

MIGRATION – student visa – decision of the then Administrative Appeals Tribunal – genuine temporary entrant criterion – Direction 69 factors – whether the Tribunal failed to afford procedural fairness – whether the Tribunal failed to properly assess the applicants’ claims – whether the Tribunal’s decision was irrational or illogical – whether the Tribunal’s decision is affected by bias – no jurisdictional error established – application dismissed. 

TRADE MARKS – whether the applicant was entitled to sue for the infringement of trade marks owned by his daughter – whether the trade marks were descriptive terms – whether the respondent used substantially identical or deceptively similar trade marks. DEFAMATION – whether this court has jurisdiction to deal with the applicant’s defamation claim. 

INDUSTRIAL LAW – Discovery – leave to amend.

INDUSTRIAL LAW – workplace right – adverse action – whether Section 340 of the Fair Work Act is engaged – where the Applicant asserts she was dismissed as a consequence of making a complaint about another co-worker - whether Section 351 of the Fair Work Act is engaged – harassment and discrimination – where the Applicant asserts unfair treatment compared to similar workplace breaches to that of co-workers – substantive and operative reason for adverse action – reverse onus – matters to be considered. 

INDUSTRIAL LAW – Fair Work – Ex tempore –Application for recusal of judge – alleged apprehended bias –objective assessment by hypothetical fair-minded lay observer – no logical connection between the conduct complained of and any apprehended deviation from the course of deciding the matter on its merits – active case management – application dismissed. 

INDUSTRIAL LAW - Application for costs pursuant to s 570(2)(b) of the Fair Work Act 2009 (Cth) – Unreasonable Defence of proceeding -Applicant unsuccessful in part of claim – Forensic decisions in course of final hearing - Hard fought litigation - Evidence of costs incurred - Causal link to conduct – Costs declined. 

BANKRUPTCY – Application to set aside Bankruptcy Notice (“Notice”) – Where final property orders were made pursuant to s 79 of the Family Law Act 1975 (Cth) (“Family Law Act”) – Where the subject debt is the result of enforcement proceedings in the family law division of this court – Where it is alleged that the Notice had the incorrect name on it – Allegations that the Notice overstates the debt –Allegations of an abuse of process – Appropriation of funds – Where the debt is found to be overstated – Notice set aside  PRACTICE AND PROCEDURE – Interest on judgment debts – Where there is no prohibition on compounding interest (“interest on interest”) in the context of s 117B of the Family Law Act.

PRACTICE AND PROCEDURE – Suppression orders – Where it is in the interests of justice to issue a pseudonym – Where the interests of children are involved – Extant family law proceedings. 

MIGRATION – application for extension of time to seek judicial review – decision of the Administrative Appeals Tribunal affirming decision to refuse applicant a protection visa – where Tribunal decision the subject of an earlier judicial review application – where applicant failed to disclose the existence of the earlier judicial review application as required pursuant to s 486D(1) of the Migration Act 1958 (Cth) – where compliance with s 486D(1) is a jurisdictional pre-condition – where application for an extension of time is incompetent – application dismissed with costs.

MIGRATION – Only certiorari sought in defective application – nature of Court’s jurisdiction under s 476(1) of the Migration Act – Constitution s 75(v) – no jurisdiction to grant the applicant the relief he sought – certiorari alone cannot ground relief although it may be sole final relief granted – need for applicant to seek mandamus, prohibition or an injunction – not appropriate for Court to amend the application in absence of request from applicant – duties of Court to assist unrepresented applicant – amendment of an application and litigants in person – the ‘first duty’ of every court and dismissal for non-attendance – permissible to proceed to dismiss in applicant’s absence although Rules may permit later application for dismissal order to be set aside – dismissal ordered.

MIGRATION – judicial review of decision of Administrative Review Tribunal to dismiss review of delegates decision to refuse visa – application for extension of time – where applicant failed to attend Tribunal hearing – where Tribunal sent hearing invitation to applicant’s nominated email address – no adequate explanation for delay - where substantive application for review lacks merit – application for extension of time dismissed.

BANKRPTCY – application to review Registrar’s Decision creditor’s petition – s 40(1)(c) and s 306 of the Bankruptcy Act - Harman undertaking – application dismissed. 

INDUSTRIAL LAW – practice and procedure – objection to producing documents called by subpoena on the ground the documents are subject to without prejudice privilege – whether the without prejudice privilege asserted in relation to the documents is a privilege jointly held by the party seeking production and the party resisting production and for that reason must be produced – whether there would be any utility in determining whether the documents are subject to without prejudice privilege, assuming such privilege is jointly held – whether a legitimate forensic purpose has been demonstrated for the production of the documents – objection to production dismissed.

MIGRATION – Application in a proceeding seeking reinstatement of judicial review application – Inadequate explanation for non-attendance at final hearing – Proposed grounds of review not reasonably arguable – Application dismissed.