Judgments

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 

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  

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. 

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal considered evidence that was of central relevance to its decision – writs issued. 

MIGRATION – Application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA applied the incorrect legal test in determining the applicant’s claims against the complementary protection criterion – application dismissed. 

MIGRATION – application for judicial review of decision made by Administrative Appeals Tribunal – protection visa – whether the Tribunal should consider a claim that was not properly articulated – jurisdictional error established.

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence that was before it – limitations of the Court’s role on judicial review – application dismissed. 

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – whether Tribunal erred in considering the applicant’s claim to experience harm as a result of her sexual identity – whether the Tribunal’s decision was legally unreasonable – whether the Tribunal denied the applicant procedural fairness - jurisdictional error not established – application dismissed with costs.  

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – whether the Tribunal failed to investigate the applicant’s claims – whether the Tribunal failed to consider allegation of domestic violence – whether the Tribunal’s decision was legally unreasonable – whether the Tribunal placed excessive weight on outdated country information – jurisdictional error not established – application dismissed with costs  

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – matter has a migration history and visa history – allegations of loan lenders with high profile gangsters – whether the Tribunal misconstrued significant harm – whether the Tribunal’s decision was legally unreasonable – jurisdictional error not established – application dismissed with costs

PRACTICE AND PROCEDURE – APPLICATION FOR AN ADJOURNMENT OF THE HEARING – where the applicant would like to be legally represented – where there is no certainty of legal representation – where the discretion to adjourn the hearing is not enlivened.

CONSUMER LAW – Practice and Procedure – Where the Applicant has made an application for orders under s. 123 of the Personal Property and Securities Act 2009 (Cth) – Where the Applicant sought an urgent interlocutory order on an ex parte basis to seize the vehicle pending a final hearing – Orders for seizure and storage of Vehicle – Undertaking as to damages. 

PRACTICE AND PROCEDURE – where the applicant failed to comply with an order of the Court – application dismissed pursuant to r 13.05(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) 

INDUSTRIAL LAW – Practice and procedure – respondent company in administration – administrators do not consent to the matter proceeding – orders made providing for dismissal of the application if specified steps are not taken by a certain date

FAMILY LAW – Parenting – Where parents have highly conflictual relationship – Father’s ability to cooperate with Mother considered ‘problematic’ – Father highly critical of Mother’s parenting – Allegations of family violence – Where Father minimised family violence on affidavit and in the witness box – Aspects of family violence characterised by Father as not inappropriate in his culture – Child experts concerned about children’s involvement in and absorption of parental conflict – Orders made to reduce contact between parents – Orders made for spend time arrangements in relation to important religious and cultural events.

PROPERTY – De facto relationship – Limited assets available for division – Where Father alleges Mother has retained or dissipated matrimonial funds by investing in shares – Finding that Mother was “scammed” and lost the funds invested – Where Father obtained significant funds from his parents during the relationship and did not inform the Mother – Where Father paid same funds plus large sum claimed to be “interest” back to parents around the time of separation – Insufficient evidence to substantiate Father’s assertion that the funds were a “loan” – Funds added back to asset pool

MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – Partner visa – whether applicants given access to written material before the Tribunal – application of Australian Privacy Principle 6 – whether Tribunal misconstrued and misapplied provision concerning family violence exception to Partner visa criteria – where Tribunal did not wish to go behind the findings of the Magistrate – whether reasonable apprehension of bias – whether jurisdictional error – writs issued  

FAIR WORK – contravention of Fair Work Act 2009 – failure to comply with compliance notice – failure to comply with court orders - unpaid employee entitlements – pecuniary penalties – need for urgent law reform – need for jurisdiction under Corporations Act – need for provision for disqualification from managing corporate entities.  

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 procedural unfairness as a consequence of the reconstitution of the Tribunal – Where s 19A of the Administrative Appeals Tribunal Act 1975 (Cth) enables the Tribunal to be reconstituted – Where the applicant alleges that without a written transcript of the first Tribunal hearing the reconstituted Tribunal Member could not make findings about the applicant’s credibility – Where the applicant alleges “apparent” bias on the part of the Tribunal Member – Where bias on behalf of the Tribunal Member was not made out – Where the applicant was found not to be a genuine temporary entrant – Where the applicant alleges that the Member did not give proper consideration to documentary evidence – Where the applicant did not avail himself of opportunities to provide further documentary evidence to the Tribunal – Application dismissed 

BANKRUPTCY – application for review of exercise of power by registrar making sequestration order – whether Court satisfied with proof of matters in s 52(1) – requirements for making sequestration order satisfied   PRACTICE AND PROCEDURE – whether to extend interim non-publication order  PRACTICE AND PROCEDURE – consideration of whether to refer party to lawyer for legal assistance by issuing referral certificate 

MIGRATION - applicant did not attend the digital hearing - appropriate matter in which to exercise the Court's powers to dismiss the application under r 13.6(1)(c) of the rules.  

MIGRATION – application for judicial review of decision made by Administrative Appeals Tribunal – student visa – whether the Tribunal missed or failed to consider a relevant consideration – no jurisdiction error established – application dismissed.

MIGRATION – Non-appearance of the applicant at the final hearing – Where the applicant was properly informed of the hearing – Application dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

MIGRATION – protection (class XA) (subclass 866) visa – review of decision of the (then) Administrative Appeals Tribunal – judicial review – whether Tribunal denied the applicants procedural fairness by refusing an adjournment application – whether Tribunal decision was illogical or unreasonable – whether Tribunal failed to consider relevant material – whether Tribunal decision was affected by apprehended bias – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed

MIGRATION – student (subclass 500) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – judicial review – genuine temporary entrant criterion – whether Tribunal’s decision legally unreasonable – whether Tribunal’s decision affected by reasonable apprehension of bias – whether Tribunal gave genuine and active intellectual consideration to the applicant’s evidence – Tribunal’s decision attended by jurisdictional error – writ of certiorari issued – writ of mandamus issued

MIGRATION – judicial review – decision of the Administrative Appeals Tribunal to refuse student visa –where the summary dismissal by a registrar was set aside on the basis of the applicant having a sufficiently arguable case – whether the applicant meets genuine temporary entrant criterion – whether the Tribunal erred – whether error met threshold of materiality – whether there is a realistic possibility of different outcome – application dismissed 

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – where the applicant fears harm on the basis of his involvement with an opposition party – where the Minister concedes Tribunal misconstrued evidence – whether error was material – anatomy of decision-making considered – realistic possibility of different outcome – jurisdictional error established – writs issued 

PRACTICE AND PROCEDURE – application to vacate final hearing to permit proceeding to be consolidated or joined with proceeding not yet commenced – lengthy delay by applicant in relation to proceeding not yet commenced - whether applicant has provided satisfactory explanation concerning delay – consideration of principles concerning consolidation or joinder of proceedings – whether issues of fact and law common to both proceedings -  whether real risk of inconsistent findings being made on contested questions of fact common to both proceedings – prejudice to respondent arising from deterioration in memory and recollection of witnesses if hearing vacated – consideration of efficient disposal of Court’s caseload - application dismissed 

BANKRUPTCY - application seeking the setting aside or review of decisions relating to extensions of time for compliance with bankruptcy notices – where events have overtaken the proceeding, including presentation of a debtor’s petition – orders relating to one of the bankruptcy notices set aside – question of costs

MIGRATION – decision of the Immigration Assessment Authority – consideration of s 473DD of the Migration Act 1958 (Cth) – whether the IAA reached a concluded state of satisfaction in respect of s 473DD(b)(i) – materiality – no jurisdictional error established – application dismissed. 

MIGRATION – where applicant provided “bogus document” as evidence of his identity – whether applicant had reasonable explanation for providing the bogus document – whether Tribunal erred in failing to consider merits of matter where satisfied s 91WA of the Act prevented grant of the protection visa sought 

MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – applicant provided new information to Authority - whether Authority erred in deciding that it must not consider new information  COSTS – whether court should make order for costs against lawyer 

MIGRATION – student visa – judicial review – where applicant consented to the Tribunal deciding the application for review without conducting a hearing – whether Tribunal’s invitation to applicant to provide information was liable to mislead the applicant into believing that all information had to be in writing – invitation not likely to mislead applicant – genuine temporary entrant criterion – application dismissed

MIGRATION – judicial review – decision of delegate refusing to grant visa – applicant absent from Court hearing – dismissal for non-appearance 

MIGRATION– Application for reinstatement of application for review of registrar’s decision – orders made dismissing proceedings for non-appearance at hearing – application for review requires extension of time of 12 days – Registrar summarily dismissed the application for judicial review – Tribunal refused to grant Temporary Graduate (Post-Study Work) (subclass 485) visa – study requirement pursuant to cl 485.231(3) not satisfied – reasons for nonappearance, delay and merits of substantive application do not warrant reinstatement – application dismissed with costs 

MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – distinction between stages of Authority assessing under s 473DD whether new information could be considered and, where new information could be considered, determining whether new information should be accepted as true or correct - application dismissed  

MIGRATION – Judicial review – Safe Haven Enterprise visa – whether denial of procedural fairness because of failure to consider new claims and evidence – whether claims concerning mental health overlooked in making complementary protection assessment – whether failure to consider relevant material – whether report concerning mental health symptoms ignored – whether disbelief of claim concerning applicant’s wife’s sister being a Liberation Tigers of Tamil Eelam cadre was unreasonable – whether failure to enquire concerning undisclosed claims – whether conclusions on various claims illogical – claims concerning release from jail, protection of another person’s identity, political affiliations and mental anxiety – whether illogical and incorrect conclusion concerning rival political group’s interest in and activities concerning applicant – whether irrelevant considerations taken into account and illogical conclusion reached concerning applicant’s claimed political views – whether conclusions based on non-existent facts concerning applicant’s links with Liberation Tigers of Tamil Eelam, release from jail and adequacy of mental health services in Sri Lanka – whether jurisdictional error  EVIDENCE – Where further affidavit containing new evidence – admission of fresh evidence in judicial review proceedings – where purpose is to have the Court remake existing findings of fact by an administrative decision  maker – whether evidence admissible. 

MIGRATION – application for habeas corpus – application for summary dismissal – application to amend the application for habeas corpus – whether habeas corpus only applies where physical detention or restriction on freedom of movement – whether habeas corpus applies to restrictions on other freedoms – the applicant’s proposed amendments arguable – summary dismissal application dismissed 

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider claims or evidence – whether Tribunal’s decision was biased – whether applicant was denied procedural fairness – no jurisdictional error established – application dismissed. 

MIGRATION – Review of delegate’s decision – refusal to waive condition 8503 (no further stay) – whether the delegate failed to understand and address the applicant’s claims – whether the delegate failed to apply the correct legal test – no jurisdictional error established – application dismissed. 

MIGRATION LAW – application for judicial review of a decision of the Administrative Appeals Tribunal to not grant a student visa – no error in the Tribunal’s consideration of the genuine temporary entrant criterion –  application dismissed with costs  

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – no appearance by or on behalf of the applicant – application dismissed for non-appearance 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 – Regional Employer Nomination (Permanent) (subclass 187) visa – judicial review of a decision of the Administrative Appeals Tribunal – procedural fairness – issues arising in relation to the decision under review – no jurisdictional error established – application dismissed 

ADMINISTRATIVE LAW – Review of decision to refuse to grant Australian citizenship – Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether delegate misconstrued or misapplied relevant legislation when determining whether applicant was born to a former Australian citizen who ceased to be an Australian citizen pursuant to the operation of s 17 of the Australian Citizenship Act 1948 (Cth) – whether delegate failed to consider legal submissions – whether delegate’s incorrect reference to applicable legislation amounts to error – no error established – application dismissed.

BANKRUPTCY – Application made by Trustee of the bankrupt estate seeking possession of land and other orders - Where no statement of affairs filed by the Bankrupt – Refusal to deliver possession of land – Mandatory injunctions. 

MIGRATION – Subclass 866 (Protection) visa – visa cancellation under s 109 – where the Tribunal found the applicant gave false information – where the Tribunal found the applicant should have provided both names that he is known by – whether the decision-maker made a finding based on an irrational or illogical reasoning process 

MIGRATION - Cancellation of Subclass 866 Protection Visa – Application for judicial review – Whether an extension of time to commence an application should be granted – Extension granted – Whether there was a material jurisdictional error by Tribunal – Whether the findings of the Tribunal were factually incorrect – Whether there was jurisdictional error in the exercise of discretion - 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– findings were open to the Tribunal – merits-based arguments made - no jurisdictional error established – application dismissed 

MIGRATION – Protection (subclass 866) visas – Administrative Review Tribunal – four grounds of judicial review – whether the Tribunal failed to afford the applicant’s procedural fairness – whether the Tribunal erred in applying country information – whether the Tribunal erred in making the findings without supporting evidence – whether the Tribunal failed to provide the applicant’s opportunity to make further submission in regard to their claims – no grounds of judicial review have merit –Application dismissed 

CONSUMER LAW – matter arising under the Personal Property Securities Act 2009 (Cth) – application for orders sanctioning seizure and recovery of vehicle pursuant to security agreement – where respondents have defaulted – security interest registered under the PPSA – Declaration that applicant is entitled to take possession of the vehicle – Orders made for the applicant to recover vehicle if not delivered by the respondents 

PRACTICE & PROCEDURE – Pleadings – late application for leave to amend – amendment sought before evidence filed.