Judgments

MIGRATION – application for judicial review – decision of the AAT to not grant Protection (Subclass 866) Visa – apprehended bias – whether the Tribunal failed to deal with a claim or integer of the claim –no jurisdictional error established – application 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) – 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 – 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 

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. 

INDUSTRIAL LAW – FAIR WORK – application – dismissal from employment in contravention of general protections – dormant proceedings – no steps taken for six years – whether the applicant satisfied the Court that the proceeding should not be dismissed – application dismissed. 

MIGRATION – decision of the Administrative Appeals Tribunal – application for an adjournment of the Tribunal hearing pending determination of the applicant’s husbands merits review application – where the applicants were allegedly determinant on husband’s claims –  evidence of the applicant’s husband was not material to the conclusions reached by the Tribunal – grounds of judicial review have no merit – application dismissed 

MIGRATION – decision of the Administrative Appeals Tribunal – Student (Subclass 500) visa – where the applicant accepted that a ground for cancellation of the visa existed – grounds of judicial review have no merit – application dismissed. 

MIGRATION –  Protection (Subclass 866) visa –Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicant’s claims – impermissible merits review – grounds of judicial review have no merit – application dismissed.  

PRACTICE AND PROCEDURE – Where the applicant failed to appear at a listing before the Court relating to his judicial review application – application dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) 

MIGRATION – Decision of the Administrative Appeals Tribunal –Protection (Subclass 866) visa – whether the Tribunal complied with procedural fairness requirements –  where the grounds of judicial review reveal no jurisdictional error – application for judicial review holds no merit –   application dismissed with costs 

INDUSTRIAL LAW - practice and procedure – application for leave to file amended statement of claim – whether application to amend is made too near the final hearing such as to put at risk the hearing if the amendment is allowed – amendment can be made without putting at risk hearing – leave granted. 

INDUSTRIAL LAW- practice and procedure – application for an order under s 176 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) that it is in the interests of the administration of justice that the respondents give discovery by disclosing documents that fall within specified categories of documents – whether categories identify documents relevant to an issue in the proceeding – whether to the extent the categories identify such documents their production ought to be sought by notice to produce rather than by discovery – application dismissed. 

BANKRUPTCY – application for summary dismissal of application to review Certificate of Taxation issued by registrar – whether the Court can review issue of Certificate of Taxation – whether the application for review of Certificate of Taxation was filed correctly – whether the application for review of Certificate of Taxation has reasonable prospects of success – whether leave to amend the application for review should be granted – application for review not compliant with Federal Court Rules 2011 (Cth) r 40.34(2) – application to review Certificate of Taxation summarily dismissed. 

PRACTICE AND PROCEDURE – Interlocutory Application seeking orders for the preservation of documents – applicant concerned about potential deletion of Microsoft Teams messages – where respondents had already taken steps to preserve relevant material – no credible or imminent risk of destruction identified – application for preservation orders refused.

INTELLECTUAL PROPERTY – Infringement of registered trade marks – where applicant secured registration of two trade marks (Blackstar trade marks) that comprised or included the word “Blackstar” effective from April 2007 with respect to (among other things) coffee beverages and coffee, and effective from March 2009 with respect to coffee – where after the applicant applied for the registration of the first of the two Blackstar trade marks the owner of a business subsequently acquired by the respondent established a business in relation to which he used the words “Black Star Pastry” (BSP Business) – where in September 2011 the respondent applied for the registration as a trade mark of a logo (BSP Logo) that includes the words “Black Star Pastry” with respect to (among other things) bakery services and “café services” and “providing drink services” – where adverse examiner’s report issued that the BSP Logo closely resembled the Blackstar trade marks but that the BSP Logo could be registered as a trade mark by removing “cafes” and “and drink” from the services with respect to which the BSP Logo would be registered as a  trade mark – where BSP sought but failed to obtain the consent of the applicant to register the BSP Logo as a trade mark for “cafes” and “and drink” – where respondent registered the BSP Logo for services that excluded “café services” and “providing drink services” - where in September 2018 the respondent applied for the registration of two trade marks that included the words “Black Star Pastry” with respect to (among other things) bakery services “cafes” and “retail services (by any means)” – where the applicant opposed registration of the two trade marks – where a delegate of the Registrar of Trade Marks decided to permit the application for registration of the two trade marks to proceed on the basis of the removal from class 43 of “restaurant, café, hospitality services, [and] take away food services” and the exclusion from class 35 of “specialty coffee retailing services” – where the respondent proceeded to register the trade marks on this basis – whether the applicant was the owner of the first of the two Blackstar trade marks registered given that he and his former wife were joint owners of that trade mark but only the applicant applied for and was registered as the owner of the trade mark – not satisfied the applicant was not at the time he applied for its registration the owner of the trade mark within the meaning of s 58 of the Trade Marks Act 1995 (Cth) (TM Act) – whether the respondent used the words “Black Star Pastry” in relation to the sale of coffee beverages and coffee and if so whether the respondent used those words as a trade mark – whether the respondent provided café services or specialty coffee retailing services its being accepted that those services are closely related to the sale of coffee beverages and coffee – whether the words “Black Star Pastry” are substantially identical with or deceptively similar to the Blackstar trade marks - whether to the extent the respondent used the words “Black Star Pastry” as a trade mark in relation to café services or specialty coffee retailing services it did so in circumstances where it is not likely to deceive or cause confusion – whether “bakery services” includes the supply of coffee beverages or the sale of coffee with the consequence that by using the words “Black Star Pastry” in relation to coffee beverages and coffee the respondent was exercising rights to use its registered trade marks and therefore it exercised rights to use trade marks conferred by the TM Act within the meaning of s 122(1)(e) of the TM Act – whether the applicant engaged in any delay or other conduct such as to amount to an agreement or acquiescence in the respondent’s using the words “Black Star Pastry” or otherwise to render it unconscionable to grant the applicant any remedy in relation to the respondent’s use of the words “Black Star Pastry” in relation to coffee beverages and coffee – whether the respondent was not the owner of the sign “Black Star Pastry” or of the BSP Logo and for that reason the registration of those trade marks should be cancelled – applicant succeeds on his infringement claims. 

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 – extension of time – sixty three days out of time – protection visa – inadequate explanation for delay – no reasonably arguable case for jurisdictional error – application dismissed.

 MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal misunderstood the “totality” of the applicant’s claims - no jurisdictional error established – application dismissed. 

MIGRATION – application for judicial review of Administrative Appeals Tribunal’s decision – student visa – whether the Tribunal erred in its consideration of Public Interest Criterion 4020 – no jurisdictional error established – application dismissed.

 MIGRATION – review of administrative appeals decision – application for extension of time for filing – application for extension of time for filing refused – costs granted.  

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

 MIGRATION – Protection (Subclass 866) visa – whether the Tribunal failed to assess the applicant’s claims – whether the Tribunal erred by relying on country information and failed to consider the applicant’s specific circumstances – impermissible merits review – grounds of judicial review have no merit – application dismissed.  

MIGRATION - Protection (Subclass 866) visa – whether the Tribunal gave sufficient weight to the applicant’s account or threats of violence – whether the Tribunal failed to assess if the applicant would face significant harm – impermissible merits review – grounds of judicial review have no merit – application dismissed 

 MIGRATION – Decision of the Administrative Appeals Tribunal –Protection (Subclass 866) visa – whether the Tribunal complied with procedural fairness requirements –  where the grounds of judicial review reveal no jurisdictional error – application for judicial review holds no merit –   application dismissed with costs 

 MIGRATION – Protection (Subclass 866) visa – whether the Tribunal made a jurisdictional error by dismissing the applicant’s claims in the absence of supportive country information – whether the Tribunal erred in finding that the applicant would not suffer harm – whether the Tribunal failed to consider the nature of the applicant’s claim – whether the Tribunal failed to adequately consider the seriousness of the offences under Bhutanese law – grounds of judicial review have no merit – application dismissed.   

 MIGRATION – decision of the Administrative Appeals Tribunal – whether the Tribunal adhered to procedural fairness requirements – where the applicant elected to not attend Tribunal hearing – whether there was a real risk that the applicant would suffer significant harm – active and intellectual engagement with the evidence of the applicant –  grounds of judicial review reveal no jurisdictional error. 

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – where the applicants allege that their visa applications were invalid as a result of fraud – whether applicants have established fraud – whether applicants have established relationship between fraud and visa application – burden not discharged – application dismissed with costs 

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 did not comply with condition 8202(2)(a) – whether Tribunal erred by failing to provide genuine consideration to applicant’s personal circumstances – found no jurisdictional error on behalf of the Tribunal – application dismissed. 

MIGRATION – application for leave to file Notice of Discontinuance made after the hearing and immediately prior to delivery of judgment – extension of time application – reasonable costs

MIGRATION – student (Temporary) (Class TU) (Subclass 500) visa – where Administrative Appeals Tribunal affirmed decision not to grant applicant the visa – whether in interests of administrative of justice to grant an extension of time to review Registrar’s Decision to summarily dismiss application – no substantial merit to grant extension of time found – application dismissed.

MIGRATION – application for judicial review –  application for Other Family (Residence) (Class BU) visa – where the Tribunal was not satisfied that the visa applicant was a “carer” as defined in reg 1.15AA of the Migration Regulations 1994 (Cth) – whether the Tribunal fell into jurisdictional error by failing to consider the nature and extent of the sponsor’s care requirements – whether the Tribunal made findings in ignorance of significant material or mandatory considerations – whether the Tribunal made findings that were irrational, illogical or unreasonable –  where identified error not material – application dismissed 

MIGRATION – application for Protection (Class XA) (Subclass 866) visa – Administrative Review Tribunal not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s 36(a) or (aa) and affirmed Delegate’s decision to refuse the application for the Protection (Class XA) (Subclass 866) visa – application for judicial review – no meaningful ground of jurisdictional error asserted – no jurisdictional error established – application for judicial review dismissed. 

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – where applicant has voluntarily left Australia with no right of re-entry – where condition of the grant of a protection visa is that the applicant is in Australia – no appearance by or on behalf of the applicant – application dismissed pursuant to rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)  

MIGRATION – cancellation of Subclass 020 (Bridging B) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal was bound to apply policy guidance in interpreting condition 8547 – whether the Tribunal was correct in not applying the policy guidance – unreasonableness – materiality – no jurisdictional error established – application dismissed    

MIGRATION – application for Protection (Class XA) (Subclass 866) visa – Administrative Review Tribunal not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s 36(a) or (aa) –  affirmed Delegate’s decision to refuse the application for the Protection (Class XA) (Subclass 866) visa – application for judicial review – no meaningful grounds of jurisdictional error asserted – application for judicial review dismissed.

CONSUMER PROTECTION – RECOVERY ACTION – where the applicant seeks a declaration for recovery of a vehicle in respect of which it loaned moneys to the first respondent – where the applicant seeks an order to enter the fourth respondent’s home and any other premises over which the respondents have apparent control where the vehicle is reasonably believed to be located – declarations and orders made – costs orders made as against the first and fourth respondents.

MIGRATION – application to reinstate matter dismissed for non-appearance – decision of the Administrative Appeals Tribunal to refuse a protection visa – whether in interests of justice to reinstate - whether reasonable excuse for non-appearance – whether arguable case of jurisdictional error identified – application dismissed

INDUSTRIAL LAW- practice and procedure – application for leave to amend statement of claim – whether application made too late given the pendency of the final hearing – whether adequate explanation for delay – whether proposed amendment discloses reasonably arguable cause of action – whether if leave to amend is granted the respondents would suffer prejudice – application refused.  

MIGRATION – related applications for judicial review of decisions of the Administrative Appeals Tribunal – where the Tribunal’s review of a visa application refusal depended upon the outcome of its review of a nomination refusal decision – whether the Tribunal misunderstood centrally relevant contentions made by the applicant in the nomination refusal matter – application dismissed

MIGRATION – judicial review - Safe Haven Enterprise (Subclass 790) visa – whether Immigration Assessment Authority (‘Authority’) failed to consider s 473DD(b)(i) before considering s 473DD(a) – whether Authority was required to refer to the requirements of s 473DD(b)(i) in its decision – whether Authority was required to disclose its assessment of s 473DD(b)(i) when considering s 473DD(a) – whether Authority failed to consider relevant information – application dismissed 

MIGRATION- Protection (Subclass 866) visa - application for extension of time for judicial review of decision of the Administrative Appeal Tribunal – application 1322 days late – extreme delay – no arguable prospects of success – not in interests of administration of justice - application dismissed 

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to properly consider evidence – whether the Tribunal’s findings were unreasonable – sur place claims – no jurisdictional error established – application dismissed 

MIGRATION - costs – application for an order that costs be assessed on a lump sum basis – whether there is sufficient information on the basis of which a lump sum costs order may be made – sufficient information available – lump sum costs order made.  

MIGRATION – decision of the Administrative Appeals Tribunal – protection visa – error of fact – denial of procedural fairness (interpreter) – bias - failure to consider integer – no jurisdictional error- application dismissed 

MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa – Application for judicial review –Whether the applicant’s response pursuant to s 359(2) of the Migration Act 1958 (Cth) was received within the prescribed time limit – Whether Tribunal was entitled to make a decision on the review without a hearing – No jurisdictional error - Application dismissed. 

 MIGRATION – Skilled Regional Sponsored (Provisional) (Subclass 489) visa - Application for judicial review – Whether the Tribunal applied the wrong test – Whether the Tribunal failed to identify compassionate or compelling circumstances – Application dismissed.

MIGRATION – Temporary Work (Skilled) (Subclass 457) visa – Visa cancellation – Exercise of discretion by Tribunal - Whether Tribunal took account of irrelevant considerations – Whether Tribunal failed to consider relevant considerations - Whether unreasonable to refuse to grant further adjournment to obtain a suitable employer sponsor - Whether an exclusion period applied - Application dismissed. 

INDUSTRIAL LAW – FAIR WORK – application – dismissal from employment in contravention of general protections – dormant proceedings – no steps taken for six years – whether the applicant satisfied the Court that the proceeding should not be dismissed – application dismissed. 

BANKRUPTCY – Application for review of the exercise of power by a Registrar– Whether there is any sufficient cause why sequestration order ought not be made – Submissions based on pseudo-law – Whether obligation to pay pecuniary liability discharged by a promissory note – Whether promissory note was issued and tendered – Application dismissed - Sequestration order affirmed.  

BANKRUPTCY – Application for review of sequestration order made by Registrar – whether preconditions for making sequestration order are satisfied – whether there is any reason why a sequestration order ought not be made – application for review dismissed and sequestration order affirmed