Judgments

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 – 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 – 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. 

 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 - 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 – 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- 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 – 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

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 – 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

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 – 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 

INDUSTRIAL LAW – FAIR WORK – application for default judgment – where the first respondent has not provided an address for service and not complied with orders of the Court – consideration of rr 13.04(2) and 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) – alleged contraventions of ss 44, 45, 323(1) and 542(1) of the Fair Work Act 2009 (Cth) – upon admissions taken to have been made by reason of the first respondent’s default contraventions found and default judgment entered.

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 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

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 - 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 –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 

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 – 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

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 – 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 – 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 – 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 – 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 – 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.