Judgments

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 – 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 leave to file Notice of Discontinuance made after the hearing and immediately prior to delivery of judgment – extension of time application – reasonable costs

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 did not comply with condition 8202(2)(a) – whether Tribunal erred by failing to provide genuine consideration to applicant’s personal circumstances – found no jurisdictional error on behalf of the Tribunal – application dismissed. 

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – where the applicants allege that their visa applications were invalid as a result of fraud – whether applicants have established fraud – whether applicants have established relationship between fraud and visa application – burden not discharged – application dismissed with costs 

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 – 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

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 – 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- 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 – 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 – 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 - 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 – 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 – 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 – 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 – 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 

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.  

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

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. 

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.

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”  

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  

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

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 

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

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 (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  

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.