Judgments

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.  

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal - application for Regional Employer Nomination (Permanent) (Class RN) visa – whether the Tribunal failed to comply with the requirements of s 360(1) of the Migration Act 1958 (Cth) in failing to invite the applicants to a hearing and was wrong when it found it did not have jurisdiction – the Tribunal failed to comply with s 360(1) of the Act – whether the failure was material – whether relief ought to be refused on the basis of futility – application dismissed 

MIGRATION - Employer Nomination Scheme - respective applicants are employer and employee - grant of employee subclass 186 visa conditioned upon approval of employer nomination - whether Tribunal gave an unreasonably narrow interpretation of its discretion in sub-para 5.19(3)(f)(ii) of the Migration Regulations 1994 (Cth) - the Tribunal did not err - the applications must be dismissed 

MIGRATION– Judicial review – applicant citizen of Sri Lanka - application for protection visa - fear of persecution as a Tamil Muslim –anti-Islamic violence following bombings of churches and hotels in period between hearing and Tribunal decision - whether Tribunal erred by failing to invite applicant to address – whether such anti-Islamic violence following bombings an ‘issue arising in relation to the decision under review’ - Tribunal erred in failing to extend further invitation to applicant to be heard - appeal allowed – writ of certiorari issued – writ of mandamus issued

INDUSTRIAL LAW – Penalty for admitted contravention of the Fair Work Act 2009 (Cth) – factors for consideration – nature of circumstances leading to contravention – where human error – where no human or technological system to check termination of employment payments – whether serious contravention for purposes of s 557A – nature and extent of loss – size and financial resources of contravener whether cooperation, contrition and corrective action by contravener – whether prior contraventions – whether contravention deliberate – whether senior management involved in contravention – deterrence – need for general deterrence – whether need for specific deterrence – appropriate measure of specific deterrence – assessment of penalty – penalty to be paid to applicant.

PRACTICE AND PROCEDURE – Adjournment – whether penalty hearing for admitted contravention of the Fair Work Act 2009 (Cth) to be adjourned – where Federal Court appeal on liability where no liability found other than for admitted contravention – overarching civil practice and procedure provisions – resolution of the dispute as to penalty as quickly and efficiently as possible – efficient  utilisation of judicial resources of this Court – efficient disposition of the remaining issue in dispute in the case  

COSTS – Human rights proceedings – whether amendment prohibiting payments of costs except where proceedings instituted without reasonable cause applied where proceedings instituted prior to effective date of amendment – power to award costs generally – where statutory prohibition on proceedings in this Court – where extension of time application dismissed because of the statutory prohibition – costs claimed on scale – whether impecuniosity a basis not to award costs – whether proceedings instituted without reasonable cause – appropriate to award costs and disbursements as claimed.
WORDS AND PHRASES – “without reasonable cause”  

MIGRATION – application for judicial review – decision of the AAT to not grant Protection (Subclass 866) Visa – whether the Tribunal failed to consider claims – whether the Tribunal made illogical findings – findings were open to the Tribunal – no jurisdictional error established – application dismissed

PRACTICE AND PROCEDURE – application for non-publication and suppression orders – where application made in the context of an upcoming mediation – whether orders for a limited period are necessary to prevent prejudice to the proper administration of justice – orders made

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to engage with the applicant’s claims – whether the Tribunal made an unreasonable finding – no jurisdictional error established – application dismissed – application for Ministerial intervention encouraged.

MIGRATION – application for judicial review – decision of the AAT to not grant Protection (Subclass 866) Visa – whether the Tribunal failed to consider claims and evidence– whether there was a denial of procedural fairness– findings were open to the Tribunal – merits-based arguments made - no jurisdictional error established – application dismissed

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing protection visa – whether Tribunal considered country information - whether the Tribunal considered applicant’s evidence - no jurisdictional error established – application dismissed.

MIGRATION – protection (subclass 866) visa application - Tribunal was not satisfied that there is a real chance that the applicant will face serious harm in the reasonably foreseeable future if he returns to Malaysia – applicant is not a person in respect of whom Australia has protection obligations - no jurisdictional error is made out – application dismissed.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether the Tribunal had proper consideration of the evidence – whether applicant satisfied cl 500.212 - no jurisdictional error established – application dismissed.

MIGRATION – Administrative Appeals Tribunal – Protection (Subclass 866) visa – whether the Tribunal overlooked key evidence that substantiated the threats and harm the applicant had endured – whether the Tribunal incorrectly applied the legal definition of persecution under s 36(2)(a) of the Migration Act 1958 (Cth) – grounds of judicial review have no merit – application dismissed with costs.

MIGRATION – application for judicial review – decision of the AAT to not grant Protection (Subclass 866) Visa – whether the Tribunal failed to consider claims and evidence– whether there was a denial of procedural fairness– whether the Tribunal applied the wrong legal test- no jurisdictional error established – application dismissed

MIGRATION –cancellation of Temporary Work (Skilled) (Subclass 457) visa – whether Tribunal applied the wrong legal test – whether Tribunal failed to consider relevant material– whether Tribunal failed to afford procedural fairness – weight is a matter for the Tribunal – no jurisdictional error – application dismissed 

MIGRATION – application for judicial review – regional employer nomination (subclass 187) 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 - judicial review – decision of Administrative Appeals Tribunal cancelling visa on basis that applicant provided incorrect answers or information in visa application – whether Tribunal erred in its discretionary decision to cancel visa – no point of principle

MIGRATION – application for judicial review – decision of the AAT to not grant Protection (Subclass 866) Visa – whether the Tribunal failed to consider claims – whether the Tribunal made illogical findings – findings were open to the Tribunal – no jurisdictional error established – application dismissed 

PRACTICE AND PROCEDURE – application for non-publication and suppression orders – where application made in the context of an upcoming mediation – whether orders for a limited period are necessary to prevent prejudice to the proper administration of justice – orders made

MIGRATION - judicial review – decision of Administrative Appeals Tribunal cancelling visa on basis that applicant provided incorrect answers or information in visa application – whether Tribunal erred in its discretionary decision to cancel visa – no point of principle  

MIGRATION – application for judicial review – regional employer nomination (subclass 187) 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 –cancellation of Temporary Work (Skilled) (Subclass 457) visa – whether Tribunal applied the wrong legal test – whether Tribunal failed to consider relevant material– whether Tribunal failed to afford procedural fairness – weight is a matter for the Tribunal – no jurisdictional error – application dismissed 

MIGRATION – application for judicial review – decision of the AAT to not grant Protection (Subclass 866) Visa – whether the Tribunal failed to consider claims and evidence– whether there was a denial of procedural fairness– whether the Tribunal applied the wrong legal test- no jurisdictional error established – application dismissed 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether the Tribunal had proper consideration of the evidence – whether applicant satisfied cl 500.212 - no jurisdictional error established – application dismissed. 

MIGRATION – protection (subclass 866) visa application - Tribunal was not satisfied that there is a real chance that the applicant will face serious harm in the reasonably foreseeable future if he returns to Malaysia – applicant is not a person in respect of whom Australia has protection obligations - no jurisdictional error is made out – application dismissed.   

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing protection visa – whether Tribunal considered country information - whether the Tribunal considered applicant’s evidence - no jurisdictional error established – application dismissed.   

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to engage with the applicant’s claims – whether the Tribunal made an unreasonable finding – no jurisdictional error established – application dismissed – application for Ministerial intervention encouraged. 

MIGRATION – Administrative Appeals Tribunal – Protection (Subclass 866) visa – whether the Tribunal overlooked key evidence that substantiated the threats and harm the applicant had endured – whether the Tribunal incorrectly applied the legal definition of persecution under s 36(2)(a) of the Migration Act 1958 (Cth) – grounds of judicial review have no merit –  application dismissed with costs. 

MIGRATION – Business Innovation and Investment visa – decision of the then Administrative Appeals Tribunal – whether the interpretation services used at the Tribunal hearing were inadequate – whether the length of the Tribunal hearing was “too short” – whether the Tribunal failed to give the first applicant “clear particulars” – whether the Tribunal failed to give the first applicant an opportunity to provide further information in support of the review application – whether the Tribunal erred by affirming the delegate’s decision in relation to the second, third and fourth applicants – no jurisdictional error – application dismissed.

INDUSTRIAL LAW – CIVIL PENALTIES – Where in the liability judgment the court made declarations that the First Respondent had contravened a compliance notice and that the Second Respondent was involved in the contravention – Penalties imposed

INDUSTRIAL LAW – OTHER RELIEF – Whether appropriate to order the First Respondent to take the steps required of it in the compliance notice under s. 545(1) or 545(2)(d) of the FW Act – Where s. 545(2)(d) inserted into the FW Act after the date of the First Respondent’s failure to comply – Whether order able to be framed with precision so that the First Respondent knew what it had to do for compliance – Held appropriate to make a remedial order for the First Respondent to take the steps required of it in the Compliance Notice – Interest. 

MIGRATION – Application for a Student (Temporary) (Class TU) visa – Review of the Administrative Appeals Tribunal (“Tribunal”) decision – Allegation that the Tribunal’s decision was affected by jurisdictional error – Where the applicant alleges that the Tribunal did not consider all of the information before it – Where the applicant was found not to be a genuine temporary entrant – Application dismissed. 

MIGRATION – Application for a Student (Temporary) (Class TU) visa – Review of the Administrative Appeals Tribunal (“Tribunal”) decision – Allegation that the Tribunal’s decision was affected by jurisdictional error – Impermissible merits review – Where the applicant was found not to be a genuine temporary entrant – Application dismissed. 

MIGRATION – judicial review – Administrative Appeals Tribunal dismissed application after applicant failed to appear at hearing – whether decision of Tribunal legally unreasonable – Tribunal received written notice of appointment of authorised recipient after inviting applicant to hearing – whether Tribunal’s failure to notify authorised recipient of hearing involved procedural unfairness.

COSTS – whether inability of applicant to meet costs order against him relevant to making or amount of order 

MIGRATION – application for judicial review – decision of the Administrative Appeals Tribunal – protection (subclass 866) visa – where the applicant claims the Tribunal’s decision was not capable of being reached on the material before it or on lawful grounds – no jurisdictional error established – applicant dismissed with costs. 

MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to consider relevant information – whether the Tribunal’s decision was affected by bias – whether the Tribunal failed to afford the applicants procedural fairness – whether the Tribunal acted unreasonably – no jurisdictional error – application dismissed.

MIGRATION – Student visa cancellation – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal considered irrelevant evidence or information – whether the Tribunal failed to consider evidence or information before it – whether the Tribunal failed to give appropriate weight to certain factors – whether the Tribunal erred in assessing the degree of hardship the applicant might have faced if her visa remained cancelled – whether the Tribunal failed to make findings in relation to the applicant’s exceptional circumstances – whether the Tribunal’s findings were illogical, irrational or legally unreasonable – whether the conduct of the applicant’s representative amounted to a fraud on the Tribunal – no jurisdictional error – application dismissed.

MIGRATION – Judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – no point of principle. 

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal misapplied the relevant legal tests – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal erred by failing to seek further information or clarification in relation to critical aspects of the applicant’s protection claims – whether the conduct of any migration agent or representative assisting the applicant with completing of his visa application amounted to a fraud on the Tribunal – no jurisdictional error – application dismissed.

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to consider a protection claim (or an integer of a claim) – whether the Tribunal failed to afford the applicant procedural fairness or failed to comply with the natural justice hearing rule – whether the Tribunal relied on incorrect or irrelevant information – whether the Tribunal failed to make necessary enquiries – no jurisdictional error – application dismissed.

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to properly consider evidence before it – whether the interpretation service provided by the Tribunal was inadequate – whether the Tribunal failed to afford the applicant procedural fairness or failed to comply with the natural justice hearing rule – no jurisdictional error – application dismissed.

MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal acted reasonably when exercising its discretion to dismiss the applicant’s review application under s 362B of the Migration Act 1958 (Cth) – whether the Tribunal failed to consider the applicant’s medical evidence – whether the Tribunal failed to consider relevant considerations or circumstances – whether the Tribunal failed to afford the applicant procedural fairness – no jurisdictional error – application dismissed.

MIGRATION– Classes, Subclasses and streams of Visas – Where the Applicant applied for a visa in the Temporary Graduate Visa Subclass in the Graduate Work Stream of the Temporary Graduate Visa Subclass – Whether the Applicant should have been granted a visa in the Post-Study Work Stream of that Subclass.

MIGRATION– EXTENSION OF TIME – Where the delay in commencing the judicial review application was more than two years – Whether there was a satisfactory explanation for delay – Whether there was sufficient underlying merit to the application to extend time – Held there was insufficient merit to the underlying application to extend time – Application for an extension of time 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 erred by failing to consider whether the applicant will face mental stress, depression and abuse from Malaysia’s unemployment and high living cost – whether the Tribunal failed to consider the applicant’s claim or an integer of his claim and made an unreasonable decision – where the applicant seeks a second chance to provide more details – no jurisdictional error established – application dismissed. 

FAMILY LAW – Parenting and property - oral recusal application - 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 erred in its application of s 423A of the Migration Act 1958 (Cth) – whether the Tribunal failed to consider a claim or an integer of a claim advanced by the applicant – whether the Tribunal failed to provide substantial justice to the applicant – no jurisdictional error – application dismissed. 

INDUSTRIAL LAW – general protections – adverse action – application for relief in relation to alleged contravention of general protections – whether employee had or exercised workplace right – prospective employee – whether inquiries constituted a “complaint” or “inquiry” for the purpose of s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) – whether workplace right under s 341(1)(c)(ii) requires an instrumental source or entitlement – no instrumental or other source established –whether prospective employee engaged in “industrial activity” under s 347(b)(vii) – case insufficiently pleaded to establish industrial activity – existence and exercise of workplace right not established – application dismissed

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

MIGRATION – Temporary Protection (subclass 785) visa – Immigration Assessment Authority  –  whether the Applicant was denied procedural fairness –  whether the Authority was required to inform the applicant of ‘new issues’ – grounds of judicial review reveal no jurisdictional error – application dismissed