Judgments

MIGRATION - judicial review – decision of Administrative Appeals Tribunal refusing to grant partner visa – Tribunal refused to permit applicant to give oral evidence at hearing – whether breach of procedural obligation – whether Tribunal failed to provide applicant with meaningful opportunity to present case - whether Tribunal’s procedural decision to refuse to permit applicant to give oral evidence was legally unreasonable – whether reasons provided by Tribunal for refusing to permit applicant to give oral evidence were complete explanation for exercise of power or discretion

MIGRATION – judicial review – whether Tribunal ought to have adjourned hearing or given applicants additional time after hearing to obtain and provide further evidence to Tribunal – whether Tribunal’s procedural decision not to adjourn hearing was legally unreasonable – whether Tribunal’s procedural decision not to give applicants additional time to obtain evidence was legally unreasonable 

MIGRATION – application for judicial review of decision made by the Administrative Appeals Tribunal – student visa – whether the Tribunal made an express finding that the applicant genuinely intends to stay temporarily – no jurisdictional error established – application dismissed.   

MIGRATION – Protection (Class XA) (subclass 866) visa – application for extension of time to bring application for judicial review of a decision of the Administrative Appeals Tribunal that it lacked jurisdiction to review application – extension of time not necessary in the interests of the administration of justice – application for extension of time is refused 

MIGRATION – Student visa refusal – decision of the Administrative Appeals Tribunal to confirm its dismissal for non-appearance – where the applicants did not apply for reinstatement – where the primary applicant submits circumstances beyond her control were not considered by the Tribunal – application dismissed 

MIGRATION LAW – application for judicial review of a decision of the Administrative Appeals Tribunal to not grant a protection visa – application filed 900 days out of time – substantial delay – inadequate explanation for delay – application lacks merit – extension not in the administration of justice – application dismissed with costs 

MIGRATION LAW – judicial review of a decision of the Immigration Assessment Authority to not grant a protection visa – fast track decision – consideration of well-founded fear of persecution by reason of the heavy discrimination of Tamils in Sri Lanka – reasons of the IAA do not embrace a claim with respect to discrimination – particular not subsumed by the generality – no error in consideration of material before the IAA – application allowed 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa - whether Tribunal’s credibility findings were unreasonable – no jurisdictional error established – application dismissed. 

PRACTICE AND PROCEDURE – application for substituted service – whether it is impracticable to serve documents by hand – whether the proposed methods of service will result in the documents coming to the attention of the respondents – orders for substituted service made

PRACTICE & PROCEDURE – Fair Work proceedings – extension of time – General Protections claim – Australian Consumer Law -  whether leave should be granted for the General Protection claim to be filed out of time – whether leave should be granted for the applicant to rely upon causes of action the Court has previously dismissed – leave to rely on the General Protection claim refused – leave is granted for the applicant to pursue claims under the Australian Consumer Law. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – applicant claimed to have poor mental state or mental health condition on day of hearing before Tribunal - whether Tribunal overlooked this matter – complaint by applicant about conduct of migration agent at hearing before Tribunal – whether agent’s conduct might be fraud which vitiated or made invalid Tribunal’s decision

PRACTICE AND PROCEDURE – whether applicant should be given additional time to file and serve evidence

MIGRATION LAW – JUDICIAL REVIEW – Medical treatment visa – Where the Tribunal was satisfied that the Applicant met some but not all of the criteria for the grant of a visa – Where the Applicant had made arrangements for medical treatment in Australia and met criteria for the grant of a visa under cl. 602.212(2) of Schedule 2 to the Migration Regulations 1994 – Where the Tribunal found that the Applicant did not genuinely intend to stay temporarily in Australia and did not meet the criteria under cl. 602.215 for the grant of a visa – Whether the Tribunal failed to consider the Applicant’s compelling circumstances – Whether the Tribunal’s conclusion was legally unreasonable – Held no jurisdictional error – Application dismissed 

MIGRATION LAW – JUDICIAL REVIEW – Medical treatment visa – Where the visa applicant was seeking a medical treatment visa because he was his wife’s support person – Where the Tribunal accepted that the Applicant met the primary criterion in cl. 602.212(4)(a) of Sch. 2 of the Migration Regulations 1994 because he sought to give “emotional and other support” to his wife – Where the Applicant’s wife visa application was refused because the Tribunal was not satisfied that she intended to stay temporarily in Australia and therefore did not meet the primary criterion in cl. 602.215 – Where Tribunal held as a result the Applicant did not meet the criterion in cl. 602.212(4)(b) that the person to whom he was to provide support held medical treatment visa – Tribunal correctly refused the visa – Application dismissed.  

MIGRATION LAW – Where the ground of review was meaningless and wholly lacking in particularity – where the applicant was in default of an order made by a Registrar at the time of the hearing – where an adjournment had already been granted allowing the applicant to seek legal representation – where after a delay of some four months before the matter was next listed for hearing, the applicant had failed to obtain legal representation at the time of the hearing – where the interests of the due administration of justice did not require the Court to act as the applicant’s advocate in the proceeding – no jurisdictional error established – application dismissed. 

MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – whether Authority failed to consider information provided by representative to Authority. 

MIGRATION – application for Employer Nomination Scheme (Subclass 186) visa – where Administrative Appeals Tribunal not satisfied that applicant had a valid nomination as required by cl 186.233(3) – Tribunal found no jurisdiction to hear nomination application – summary dismissal application by Minister dismissed – application for judicial review – no meaningful ground of jurisdictional error asserted – no jurisdictional error established – application for judicial review dismissed.  

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 failed to satisfy cl 500.212(a) of the Regulations – whether Tribunal failed to take into account relevant considerations – found no jurisdictional error on behalf of the Tribunal – application dismissed. 

BANKRUPTCY - Application for review of a Registrar’s decision to make sequestration order – Hearing de novo – Discretion not to make an order – Solvency – Annulment – Application dismissed. 

CHILD SUPPORT - Writ of certiorari issues quashing the decision of Administrative Appeals Tribunal - writ of mandamus issues requiring the Administrative Review Tribunal to determine the application made to it for review according to law - no order for costs  

MIGRATION – application for judicial review –Permanent Employer Nomination Scheme (Subclass 186) visa – refusal due to no approved nomination – application for review of registrar’s summary dismissal – extension of time –inadequate explanation for delay – no reasonably arguable error – futility of remittal – application dismissed 

MIGRATION  – application for review of a Registrar’s decision – student (subclass 500) visa – application of the genuine temporary student criterion – where the applicant’s application was dismissed due to non-appearance – finding that there are no reasonable prospects of success in the substantive application – application dismissed with costs. 

MIGRATION – Judicial review – Administrative Appeals Tribunal – Other Family visas – whether the Tribunal erred in relation to reg 1.15AA(1)(e)(i) of the Regulations – where the Court finds that the Tribunal did explore the reasonableness of the assistance being provided by various relatives – application dismissed 

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. 

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.

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 – 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 – 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 – 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 –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 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 – 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