Judgments

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

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 – 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.

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 – 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 – 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 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 – 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. 

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 – 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  

FAMILY LAW – Parenting and property - oral recusal application - 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 – protection (class XA) (subclass 866) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – where Tribunal affirmed the delegate’s decision – whether Tribunal failed to consider the applicant’s claims – Tribunal’s decision not attended by jurisdictional error – application for judicial review 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. 

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. 

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 denied the applicant procedural fairness by not giving him adequate time to provide further evidence – no jurisdictional error – application dismissed. 

MIGRATION – Protection (Subclass 866) visa – where the applicants fears of harm did not meet the complementary protection obligations – where the applicant did not provide evidence in support of claims –  grounds of judicial review have no merit – application dismissed  

MIGRATION – Protection (Subclass 866) visa  – whether the Tribunal failed to actively and intellectual engage with claims – whether the applicant was denied procedural fairness – grounds of judicial review have no merit – 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 – Partner visa – refusal – review of Administrative Appeals Tribunal (“Tribunal”) decision – no matter of principle.  

MIGRATION – Temporary Work (Skilled) (subclass 457) visa – Administrative Review Tribunal – whether the Tribunal failed to disclose information in respect of a forensic facial composition analysis – whether the Tribunal failed to meet its obligations under ss 359A or 359AA of the Migration Act 1958 to provide clear particulars of any information to the applicant – where the grounds seek impermissible merits review –  where he Tribunal’s conclusions were not unreasonable, irrational or illogical – application dismissed. 

MIGRATION — Application for judicial review of a decision of the (then) Immigration Assessment Authority  — whether the Authority misinterpreted or misapplied s.473DD of the Migration Act 1958 (Cth) in the manner contended — whether the Authority failed to consider relevant claims or evidence — whether the Authority’s decision was otherwise attended by legal unreasonableness — jurisdictional error established — application allowed with costs. 

MIGRATION - Protection (Class XA) (Subclass 866) visa – Application for judicial review – Non-appearance of applicant – Application dismissed pursuant to r13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth). 

MIGRATION – Protection visa – Application for review of Registrar - Whether application for judicial review has reasonable prospects of successful prosecution – Whether extension of time should be granted – Extension of time refused - Application for review dismissed. 

MIGRATION – Regional Employer Nomination (Subclass 187) visa – Application for review of Registrar - Whether an extension of time should be granted – Whether reasonable prospects of successful prosecution of application for judicial review - Application dismissed. 

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – visitor visa – genuine temporary entrant requirement – where the Tribunal incorrectly applied cl 600.611(3) of Sch 2 of the Migration Regulations 1994 (Cth) in considering whether the applicant intended to comply with the visa conditions – whether the error was material – whether the Tribunal erred by finding the applicant would not comply with condition 8503 – material error established by the Tribunal in misconstruing and incorrectly assessing the conditions to which the visa would be subject – writs issued. 

MIGRATION – application for review of decision of registrar – registrar summarily dismissed application for judicial review of decision of Administrative Appeals Tribunal – re-hearing of summary dismissal application – whether judicial review application has no reasonable prospects of success – application for review of registrar’s decision lodged 20 days late – no explanation for delay – extension of time refused. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal – adjournment request by applicant refused by Tribunal - applicant did not attend scheduled hearing – Tribunal decided to proceed to decision on review – whether decisions of Tribunal refusing to adjourn hearing and proceeding with hearing in absence of applicant were legally unreasonable – application dismissed. 

MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – Protection (Class XA) Visa – dismissal for non-appearance.

PRACTICE AND PROCEDURE – interlocutory application for an adjournment on medical grounds – application opposed – medical report did not disclose that the applicant was suffering from any medical condition that required immediate medical treatment which prevented the applicant from attending the hearing – adjournment refused.

PRACTICE AND PROCEDURE – interlocutory application for an adjournment on medical grounds – application opposed – medical report did not disclose that the applicant was suffering from any medical condition that required immediate medical treatment which prevented the applicant from attending the hearing – adjournment refused 

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL – where the Tribunal was not satisfied that the applicant was the spouse of the sponsor – whether the Tribunal failed to consider each of the mandatory considerations in reg 1.15A of the Migration Regulations 1994 (Cth) – whether the Tribunal overlooked evidence led in support of the applicant’s claims and failed to make findings about relevant matters – jurisdictional error established – writs issued 

MIGRATION – student (class TU) (subclass (500) visa – where delegate refused to grant the applicants visas – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – where Tribunal affirmed delegate’s decision – where first applicant failed to satisfy cl 500.211 of Sch 2 to the Migration Regulations 1994 (Cth) – where first applicant not enrolled in a registered course of study – Tribunal’s decision not attended by jurisdictional error – application for judicial review 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) 

FAIR WORK – general protections court application lodged but not accepted for filing within proscribed time – where short and explained delay, no particular prejudice to the respondent and at least the basis of a claim articulated – extension of time granted. 

INDUSTRIAL LAW – FAIR WORK – retail industry – failure to comply with compliance notice – where default judgment was entered in respect of liability and respondent has continued to elect not to participate in the proceedings for relief – final relief granted on default. 

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 – Immigration Assessment Authority –  Safe Haven Enterprise (Class XE) (subclass 790) visa – whether the Authority was required to invite the applicant to provide information pursuant to s 473DC of the Migration Act 1958 (Cth) – whether the Authority must consider a sur place claim –  where the Authority is entitled to disagree with the delegate’s evaluation of the material –  whether a previous Federal Circuit Court decision identified the pseudonymised applicant –  grounds of judicial review have no merit –  application dismissed with costs. 

MIGRATION – (Subclass 790) Safe Haven Enterprise Visa (SHEV) – Application for an extension of time – judicial review application filed 171 days out of time – no requirement for the Tribunal to make findings as to the consequences of visa cancellation – where there is no merit in the proposed grounds of review – application refused 

MIGRATION – application for judicial review – regional employer nomination (subclass 187) visa – refusal due to lack of approved nomination – application for review of registrar’s summary dismissal – extension of time – procedural fairness – application dismissed. 

FAIR WORK – penalty hearing - first respondent is about to be placed in liquidation - second respondent has limited financial means - second respondent cooperated with the Court in the giving of oral evidence - $28,875 penalty imposed on the first respondent being 70% of the maximum penalty - $3,000 penalty imposed on the second being approximately 36% of the maximum penalty. 

FAIR WORK – penalty hearing - deliberate and intentional contravention by the respondent - reflects conduct of a kind that shows there is a very real need for subjective deterrence - maximum penalty of $41,250 imposed  

MIGRATION LAW – application for judicial review of a decision of the Administrative Appeals Tribunal to not grant a protection visa – complementary protection criterion – assessment of the Applicant’s profile – common sense and realistic approach to reading the Tribunal’s Decision – Tribunal did not misapply real risk test – findings open to the Tribunal – application dismissed with costs 

MIGRATION LAW – application for review of Registrar’s decision – where Registrar summarily dismissed the judicial review application – Tribunal found no jurisdiction to review the Delegate’s decision to refuse a protection visa as review application was filed 143 days out of time – no prospects of success – application dismissed with costs – Registrar’s decision affirmed 

MIGRATION – Judicial review – protection visa – oral testimony and photographic evidence – inconsistencies and assessment of credibility – whether Tribunal failed to articulate the significance of an inconsistency when making an adverse credibility finding – whether Tribunal failed to consider an explanation for an inconsistency when making an adverse credibility finding – delay in making a protection visa application – where delay may be considered as part of Tribunal’s assessment that an applicant has a ‘well-founded fear of persecution’ – jurisdictional error established.

MIGRATION– Application for review of Registrar’s decision to summarily dismiss judicial review application – Tribunal dismissed the application for merits review after non-appearance by the Applicant at the Tribunal hearing – Tribunal confirmed its dismissal decision after no reinstatement application received – Applicant nominated friend’s contact details – grounds of review have no prospects of success – Registrar’s decision affirmed – application dismissed with costs