Judgments

MIGRATION - Judicial review of decision affirming decision not to grant a Protection (Class XA) (subclass 866) visa – dismissal for non-appearance. 

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal misapplied ss 36(2)(a) and (aa) – whether the Tribunal made unreasonable findings – irrationality – no jurisdictional error established – application dismissed 

MIGRATION – judicial review – protection visa – applicant failed to appear at a scheduled in-person hearing before the Tribunal – Tribunal exercised discretion under s 426A(1A)(a) of the Migration Act 1958 (Cth) to make a decision on the review without taking any further action to allow or enable the applicant to appear before it – no jurisdictional error disclosed on the basis the Tribunal acted reasonably in exercising the discretionary power in s 426A(1A) – application dismissed 

MIGRATION – judicial review – protection visa – whether the Tribunal acted unreasonably in refusing to grant the applicant further time in which to provide a report from a psychologist – Tribunal sought explanation as to relevance of further report – Tribunal considered response as to relevance and provided an evident and intelligible justification which was reasonable for refusing the applicant further time to provide the medical report – application dismissed 

MIGRATION – Protection (Class XA) (Subclass 866) visa – application for extension of time to seek judicial review – whether proper explanation of delay - consideration of the interest of the administration of justice – application dismissed. 

MIGRATION - Employer Nomination (Permanent) (Class EN) (subclass 186) visas – Application for judicial review – Whether decision to refuse to grant the visas contained a jurisdictional error - Whether Tribunal obliged to reconsider a decision – Application interconnected with employer application for an extension of time – Applications heard concurrently – Application for judicial review dismissed. 

MIGRATION – protection (class XA) (subclass 866) visa – visa refused – decision of the (then) Administrative Appeals Tribunal to affirm delegate’s decision – where applicant alleges jurisdictional error – where applicant’s grounds of review lack merit – Tribunal’s decision not attended by jurisdictional error – application for review of Tribunal’s decision dismissed

MIGRATION – application for review of a decision by the Administrative Appeals Tribunal – whether the applicant made a “non-judicially determined claim of family violence” – whether a statutory declaration provided by a (largely) retired social worker, met the requirements of IMMI 12/116 – application dismissed

MIGRATION – partner (class BS) (subclass 801) visa – review of two decisions of delegates of the (then) Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs – first decision concerned cancellation of the applicant’s visa pursuant to s 128 of the Migration Act 1958 (Cth) (Act) – second decision concerned non-revocation of the first decision pursuant to s 131 of the Act – judicial review – whether the delegates adopted an unintelligible interpretation of the Convention on the Rights of the Child (CRC) – whether the delegates incorrectly applied the best interests of the child principle in the CRC – whether delegate correctly identified whether cancellation of the applicant’s visa was in the best interests of the children – delegates’ reasoning was illogical or irrational – delegates’ reasoning attended by jurisdictional error – writ of certiorari issued

MIGRATION – review of a decision of the Administrative Appeals Tribunal – protection visa – no jurisdictional error established – application dismissed.   

MIGRATION – judicial review – protection visa – alleged failure to give “proper, genuine and realistic consideration” to a letter purportedly provided by the Assistant Office Secretary of the BNP – no jurisdictional error – application dismissed

INTELLECTUAL PROPERTY – Practice and procedure – application for access to unredacted versions of redacted documents that had been inadvertently included in a list of documents filed pursuant to discovery order – whether documents relevant to issues arising on the pleadings – not relevant because the unredacted portion of the documents is sought to investigate matters that are not currently in issue between the parties.  

INTELLECTUAL PROPERTY – Practice and procedure - discovery - pursuant to discovery order respondents disclosed documents some of which were in native format (Native Format Documents) by converting them into PDF format and producing to the applicant the PDF format of the Native Format Documents – whether the respondent ought to produce the Native Format Documents to the applicants in native format – respondents ordered to do so INTELLECTUAL PROPERTY – Practice and procedure – application for leave to file an amended statement of claim – whether proposed amendments plead material facts -application dismissed.

BANKRUPTCY – Costs assessment – Where the Bankruptcy Notice set aside – Where the Creditor’s Petition was dismissed - Where costs ordered are costs that are reasonably payable on a party-party basis – Appropriate discount applied   

MIGRATION – Judicial Review – Administrative Appeals Tribunal – protection visa – India - unreasonableness - illogicality - irrationality – whether conclusions as to country information open to the Tribunal - real and meaningful hearing - failure to consider a claim – application dismissed

MIGRATION - application for judicial review of a decision by the then Administrative Appeals Tribunal affirming a decision not to grant a Student (Temporary) (Class TU) (Subclass 500) visa – whether there was a denial of natural justice, failure to consider relevant information and consideration of irrelevant considerations and/or failure to give genuine, proper and realistic consideration to merits – where decision of the Tribunal was based upon an admission of the Applicant which was dispositive – no error of jurisdiction established – application dismissed.

MIGRATION – Judicial review – Administrative Appeals Tribunal – Protection visa – China – Tribunal’s assessment and weight of evidence and country information – real and meaningful hearing – impermissible merits review – application dismissed

INDUSTRIAL LAW – application for civil penalty –admitted contraventions –failure to abide by compliance notice and provide pay slips under Fair Work Act 2009 (Cth) – penalty hearing  – appropriate penalty.

INDUSTRIAL LAW – application for civil penalty –contraventions of Fair Work Act 2009 (Cth) – failure to abide by compliance notice and breach of s.323 – penalty hearing – appropriate penalty

INDUSTRIAL LAW – alleged contravention of general protections – termination of employment – alleged underpayments

PRACTICE AND PROCEDURE – discovery – requirements for declaration concerning discovery – discovery exception not the rule

BANKRUPTCY – application by appointed trustee for delivery of vacant possession of property, removal of personal property and sale of property – where former bankrupt since discharged from bankruptcy at law –consideration of power to make orders under s.30 of the Bankruptcy Act 1996 (Cth) in furtherance of the administration of a bankrupt estate – orders made with costs. 

MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

MIGRATION – Judicial Review – student visa refusal – whether the applicant consented to the Tribunal determining the matter without a hearing – whether Tribunal failed to provide opportunity to give evidence and present arguments – whether Tribunal failed to make an obvious inquiry – no jurisdictional error established – application dismissed

MIGRATION – Judicial review – Partner visa – whether Tribunal properly reached a state of satisfaction that compelling reasons did not exist to waive the application of certain Schedule 3 criteria – whether Tribunal failed to give proper, genuine and realistic consideration to submissions and evidence – whether Tribunal failed to actively and intellectually engage with arguments– jurisdictional error established – application allowed

MIGRATION – protection visa – judicial review of a decision of the Immigration Assessment Authority – where second applicant feared harm based on his failure to complete military service in Iran – whether Authority considered claim based on a correct and complete understanding of country information – where second applicant feared harm based on his interest in Freemasons in Australia – where second applicant identified limits in his ability to produce evidence directed at this claim due to the secrecy of the organisation – whether Authority assessed claim based on correct appreciation of the limits that attached to production of material – no jurisdictional error – application dismissed with costs

MIGRATION – Judicial review – whether Tribunal erred in finding it did not have jurisdiction – whether delegate’s notification letter valid – no jurisdictional error established – application dismissed.

MIGRATION – protection visa – application for injunction to restrain the Minister from removing the applicant from Australia – delay – whether applicant afforded meaningful opportunity to appear – impact of mental health issues on ability to appear – serious issue to be tried established – balance of convenience – interlocutory injunction granted

CONSUMER LAW – applicant and first respondent entered into a chattel mortgage agreement in relation to a motor vehicle – fraudulent transaction – unknown party took possession of the vehicle – interim orders granted for applicant to seize the vehicle pursuant to s 123 of the Personal Property Securities Act 2009 (Cth) (PPS Act) – applicant at liberty to deal with the vehicle pursuant to s 128 of the PPS Act

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)

BANKRUTPCY – application pursuant to s 139ZS(1) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) to set aside a notice issued pursuant to s 139ZQ(1) of the Bankruptcy Act and applications pursuant to s 120(1) and s 121(1) of the Bankruptcy Act that the transfer of a 40% interest in a property is void as against the trustee in bankruptcy – whether the 40% interest was transferred for a consideration less than its market value – the 40% interest transferred for a consideration that exceeded market value – whether at the time the 40% interest was transferred the transferor was insolvent or was about to become insolvent – whether the transferor’s main purpose for transferring his 40% interest was to prevent the transferred property from becoming divisible among the transferor’s creditors to hinder or delay the process of making property available for division among the transferor's creditors – whether assuming s 121(1) of the Bankruptcy Act applied to the transfer of the 40% interest the transferee established the matters provided for by ss 121(4) – 129ZQ notice set aside and claims under s 120(1) and s 121(1) of the Bankruptcy Act dismissed.

MIGRATION – student visa – decision of the Administrative Appeals Tribunal – whether the applicant was enrolled in a registered course of study and could satisfy cl 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) – finding by the Tribunal that the applicant was not enrolled in a registered course of study –no jurisdictional error – application dismissed with costs

MIGRATION – application for review of decision of registrar – where registrar summarily dismissed application for judicial review of decision of Administrative Appeals Tribunal – whether judicial review application has reasonable prospects of success – application for review of registrar’s decision lodged 15 days late – extension of time refused – costs ordered

MIGRATION – Protection (Class XA) (subclass 866) visa – judicial review of a decision of the Administrative Appeals Tribunal – error of fact – jurisdictional fact – illogicality or irrationality – procedural fairness – no jurisdictional error established – application dismissed.

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 failed to give sufficient weight to the applicant’s circumstances – whether the Tribunal engaged in a process of reasoning that was illogical or irrational – no jurisdictional error established – application dismissed.

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal failed to give sufficient weight to the applicant’s circumstances – whether the Tribunal engaged in a process of reasoning that was illogical or irrational – no jurisdictional error – application dismissed.

BANKRUPTCY – Application to remove respondent as the trustee of bankrupt estate – applicant sought to replace the trustee with another trustee – relevant considerations

BANKRUPTCY – Application to appoint controlling trustee prior to sequestration order being made – no act of bankruptcy established

MIGRATION – Judicial review – absence of approved nomination – futility – no jurisdictional error established – application dismissed.

MIGRATION – judicial review – Administrative Appeals Tribunal – student visa – Nepal – genuine temporary entrant – unreasonableness – illogicality – whether Tribunal erred by considering matters beyond length of stay for the purposes of cl. 500.212(a) – application dismissed

MIGRATION – application for review of decision made by Judicial Registrar to summarily dismiss judicial review application – where Tribunal found that applicant unable to satisfy mandatory criterion for grant of visa – where application for review made out of time – where there is no reasonable prospect of success of judicial review application – extension of time refused with costs

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal’s decision is unreasonable – whether the Tribunal was biased – whether an alleged failure to provide an interpreter was procedurally unfair – whether the Tribunal failed to investigate for itself further possible protection concerns – no jurisdictional error – application dismissed.

MIGRATION - Judicial Review – decision of Immigration Assessment Authority – citizen of Pakistan – Turi Pashtun of Shia religion– whether finding of fact not supported by the evidence – whether finding of fact based on unwarranted assumptions – whether wrong question asked as to whether individually targeted rather than being targeted as part of a particular social group – whether decision illogical or legally unreasonable because of failure to take into account relevant considerations – whether decision affected by apprehended bias – whether jurisdictional error.

MIGRATION – Judicial review – decision of Immigration Assessment Authority – citizen of Pakistan – Turi Pashtun of Shia religion – whether finding of fact not supported by the evidence in relation to allegedly fraudulent document or based on unwarranted assumptions – whether decision illogical or legally unreasonable by reason of unwarranted assumptions made concerning protection of students by school or because of failure to take into account relevant considerations – whether wrong question asked as to whether individually targeted rather than being targeted as part of a particular social group – whether failure to take into account a relevant consideration as to the nature of persecution faced by the applicant outside his home area – whether decision affected by bias – whether jurisdictional error

MIGRATION – Temporary Protection visa – decision of the then Immigration Assessment Authority – whether the IAA erred in the manner specified in CLS15 v Federal Circuit Court of Australia [2017] FCA 577 – jurisdictional error established – writs issued.

MIGRATION – application for judicial review – decision of the Immigration Assessment Authority – safe haven enterprise (subclass 790) visa – where the applicant claims that the Authority failed to exercise its discretion in getting or to get new information under section 473DC of the Migration Act 1958 (Cth) in respect of the applicant’s political involvements – no jurisdictional error established – application dismissed with costs.

INDUSTRIAL LAW - Application pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) for extension of time within which to make a general protections court application based on dismissal from employment – whether applicant has given adequate explanation for delay – whether applicant has meritorious claim if extension granted – whether otherwise appropriate to grant extension – extension refused.

PRACTICE AND PROCEDURE – statement of claim does not reveal cause of action –summary dismissal - vexatious proceedings – material in an inadmissible form –statement of claim struck out.

INDUSTRIAL LAW – alleged breach of s 352 of the Fair Work Act 2009 (Cth) – alleged breach of s 536 of the Fair Work Act 2009 (Cth) – alleged retaliatory dismissal and corporate misconduct

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – construction of ss 473DD and 473FB of the Migration Act 1958 (Cth) and cl 28 of the Practice Direction – whether the IAA was required to assess new information that did not comply with the Practice Direction against s 473DD – whether the IAA’s exercise of discretion not to consider new information provided to it outside of the deadline in the Practice Direction, but nearly 2 months before the IAA’s decision, was legally unreasonable – application succeeds

MIGRATION – Protection (Class XA) (subclass 866) visa – judicial review of a decision of the Administrative Appeals Tribunal – failure to discharge the statutory task of review by copying – denial of procedural fairness because of delay – failure to consider evidence – misconstruing statutory tests in s 36(2)(aa) and s 36(2B)(c) – jurisdictional error established – application allowed.

MIGRATION – Whether Immigration Assessment Authority failed to consider essential integer of claims – whether failure to properly assess whether to consider new information

PRACTICE & PROCEDURE – Application in a proceeding to adjourn the hearing – relevant considerations.