Judgments

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether the Tribunal failed to comply with the requirements of s 359AA and s 359A of the Migration Act 1958 (Cth) - whether Applicant satisfied genuine temporary entrant criteria – no jurisdictional error established – application dismissed. 

MIGRATION – Where there was a delay of 136 days in filing an application for review of the decision of the Tribunal – where there was no reasonable explanation provided in any affidavit for the delay – where the substantive grounds of review lacked merit and were not arguable – no jurisdictional error established – application dismissed.  

BANKRUPTCY – where parties invited to provide draft form of orders to give effect to findings recorded in substantive judgment – where substantive judgment recorded finding that failure of Trustee to obtain advice on capital gains tax engaged the supervisory jurisdiction of the Court – where substantive judgment contemplated that Trustee’s power of sale would be varied to oblige the Trustee to obtain updated valuations of real estate and to offer the second respondent a first right of refusal to purchase the Trustee’s 50% interest in the property – where parties failed to agree on appropriate form of order – where orders sought by the second respondent travelled beyond findings recorded in the substantive judgment – where sale orders made in substantially the form sought by the Trustee – where order made for the Trustee to pay the second respondent’s costs of the substantive proceeding despite the second respondent not enjoying success on every “issue”

MIGRATION – Protection (subclass 866) visa –Application for extension of time for filing application for judicial review of Tribunal’s decision – Significant delay in filing application – Whether substantive application has reasonable prosects of success – Whether Tribunal lacked jurisdiction due to application for review being filed out of time – Whether Tribunal could extend time – No reasonable prospects of success – Application for extension of time refused – Order for costs  

MIGRATION – Student (Temporary) (Class TU) (subclass 500) visa – Application for extension of time for filing application for judicial review of Tribunal’s decision – Extent and reason for delay in filing application – Whether substantive application has reasonable prospects of success – No reasonable prospects of success – Application for extension of time refused – Order for costs 

MIGRATION - Safe Haven Enterprise (Subclass 790) visa – Whether Tribunal failed to consider the totality of the evidence – Consideration of oral evidence provided at Tribunal hearing – translation of evidence – Whether assessment of all the applicant’s claims had been adversely impacted by findings of credibility – Unreasonable or illogical reasoning - Application dismissed. 

PRACTICE AND PROCEDURE – Application for leave to reopen where applicant’s evidentiary case had closed but final addresses had not been completed and judgment had not been reserved – limited tender of potentially relevant documents sought – application unopposed – where third and fourth respondents also sought leave to rely upon further evidence – leave to reopen granted and associated timetable ordered by consent 

INDUSTRIAL LAW – Practice and procedure – application to set aside notices to produce – whether issuer demonstrated legitimate forensic purpose – application to set aside one of the notices to produce dismissed and part of another notice to produce set aside. 

MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal’s decision was “inconsistent” with that of the delegate’s decision – whether the Tribunal failed to properly consider the evidence before it or failed to properly comply with relevant legislative provisions – no jurisdictional error – application dismissed.

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or on behalf of the applicant – 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 visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to properly assess the complementary protection criteria – whether the Tribunal failed to address the applicant’s claims in relation to economic hardship – no jurisdictional error – application dismissed.

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the applicant was denied procedural fairness – whether the Tribunal’s decision was biased – whether the Tribunal’s findings were illogical or unreasonable – no jurisdictional error – application dismissed. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal cancelling protection visa – whether Tribunal failed to give proper consideration to best interests of applicant’s children – whether Tribunal failed to consider differential interests of applicant’s Australian citizen child – no jurisdictional error established – application dismissed

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or on behalf of the applicant – 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 visa – decision of the then Administrative Appeals Tribunal – matter listed for a final hearing – 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 visa – decision of the then Administrative Appeals Tribunal – matter listed for a final hearing – applicant offshore – no appearance by or on behalf of the applicant – 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 – Judicial review application – decision of Immigration Assessment Authority – citizen of Pakistan – whether error in interpreting or applying the law – whether error in interpreting the term “new information” – whether failure to consider whether information met relevant requirements before finding that there were not exceptional circumstances – whether it was not reasonably open to not find exceptional circumstances to consider certain information – whether error in interpreting or applying law concerning seeking new information at interview – whether error in interpreting or applying the terms “real chance” and “well-founded fear” of persecution and “ real risk” of significant harm – whether failure to consider a relevant consideration – whether failure to consider decision of Administrative Appeals Tribunal in referred material – whether failure to consider a psychologist’s report – whether failure to consider whether applicant might suffer relevant harm because of inability to get necessary psychological treatment if returned to Pakistan – whether findings legally unreasonable or made without a logically probative basis – whether legally unreasonable not to find exceptional circumstances in relation to various information – whether unreasonable not to seek new information whether at interview or otherwise about applicant’s role as eldest son of an elder in the community when issue not considered by the delegate – whether legally unreasonable to exclude the possibility that the applicant was personally targeted by the Taliban – whether legally unreasonable not to find that the applicant had a real chance of suffering relevant harm in the reasonably foreseeable future – whether legally unreasonable to exclude a real chance that the applicant might suffer relevant harm because of inability to obtain necessary psychological treatment if returned to Pakistan – whether jurisdictional error – writs issued.  

ADMINISTRATIVE LAW – application for judicial review of separate decisions made by the Australian Information Commissioner under Part V, Division 1 of the Privacy Act 1988 (Cth) – where the applicant separately complained to the Commissioner under sections 36(1) and 36(2) of the Act in relation to the Department of Veterans’ Affairs alleged breaches of the Australian Privacy Principles – where the delegate decided not to investigate each complaint under sections 41(1)(d) and 41(1)(da) of the Act respectively– where the applicant alleges that the delegate failed to reach the state of satisfaction required by section 41 in exercising the discretion in each case – consideration of whether the respondent acted reasonably in the exercise of that discretion – no jurisdictional error established – applications each dismissed.

MIGRATION – Extension of time application – applicant filed 1881 days out of time – Safe Haven Protection (Subclass 790) visa – where Immigration Assessment Authority affirmed the decision of the first respondent to refuse the visa – found delay was extremely lengthy – absence of satisfactory explanation for such lengthy delay – whether the Authority’s decision to refuse to extend the time for the applicant to provide submissions was legally unreasonable – found it reasonably arguable that the Authority’s decision not to defer its decision-making was unreasonable – found applicant’s case not strong or exceptional – extension of time not granted – not in the interests of the administration of justice – application dismissed. 

MIGRATION – Application for review of Registrar’s decision – hearing de novo of first respondent’s application for summary dismissal – where applicant applied for judicial review of decision of Administrative Appeals Tribunal – where Registrar summarily dismissed the applicant’s application for judicial review – where review of Registrar’s decision filed 34 days out of time – where applicant’s application for review with the Tribunal was filed 997 days out of time – where Tribunal found it did not have jurisdiction to conduct the review – well settled that the Tribunal has no power to extend the time period for the lodging of an application for review before it –found grounds of substantive application not reasonably arguable – application dismissed. 

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision to cancel the applicant’s student visa – whether the Tribunal asked itself the wrong question – whether the Tribunal constructively failed to consider relevant evidence and submissions – no jurisdictional error – application dismissed.     

MIGRATION – application for judicial review – Protection (subclass 866) visa – where Administrative Appeals Tribunal affirmed decision of first respondent – whether Tribunal failed to comply with Ministerial Direction No 56 – found the Tribunal expressly referred to Direction 56 and considered country information to the extent it was relevant – whether the Tribunal erred by discounting the third applicant’s evidence on the basis of its adverse credibility findings in respect of the primary applicants – found it was open for the Tribunal to give no weight to the evidence of the third applicant –  whether the Tribunal was required to put adverse credibility findings about the primary applicants to the third applicant pursuant to s 424A of the Migration Act 1958 (Cth) -  found adverse credibility findings is not “information” for the purposes of s 424A – found no jurisdictional error on behalf of the Tribunal – application dismissed. 

MIGRATION – application for judicial review – Protection (subclass 866) visa – where Administrative Appeals Tribunal affirmed decision of first respondent – whether Tribunal failed to comply with Ministerial Direction No 56 – found the Tribunal expressly referred to Direction 56 and considered country information to the extent it was relevant – whether the Tribunal was required to put adverse credibility findings it had made in respect of the applicant’s mother and father to the applicant pursuant to s 424A of the Migration Act 1958 (Cth) – found adverse credibility findings is not “information” for the purpose of s 424A – found no jurisdictional error on behalf of the Tribunal – application dismissed. 

MIGRATION – application for judicial review – Protection (subclass 866) visa – where Administrative Appeals Tribunal affirmed decision of first respondent – whether Tribunal failed to comply with Ministerial Direction No 56 – found the Tribunal expressly referred to Direction 56 and considered country information to the extent it was relevant – whether the Tribunal was required to put adverse credibility findings it had made in respect of the applicant’s mother and father to the applicant pursuant to s 424A of the Migration Act 1958 (Cth) – found adverse credibility findings is not “information” for the purpose of s 424A – found no jurisdictional error on behalf of the Tribunal – application dismissed  

MIGRATION – application for judicial review – Temporary Work (Skilled) (Subclass 457) visa – where Administrative Appeals Tribunal affirmed a decision of the first respondent to refuse to grant the visa –  where the first applicant was not the subject of an approved nomination – where Tribunal received adverse information and s 376 certificate was issued – whether failure to disclose certificate was material – found failure of Tribunal to disclose certificate was material –jurisdictional error established – application allowed. 

MIGRATION – application for judicial review – Temporary Business Entry (Class UC) (Subclass 457) visa – where Administrative Appeals Tribunal affirmed a decision of the first respondent to refuse to grant the visa –where applicant was the sponsor – where Tribunal found nominated occupation not to be genuine –where Tribunal received adverse information and s 376 certificate was issued – found failure of Tribunal to disclose certificate was material –jurisdictional error established – application allowed. 

PRACTICE AND PROCEDURE – Application made by the First Respondent on first day of trial for leave to amend defence and withdraw admissions – Where the delay before the application is significant – Where application made at a time when all pre-trial orders had otherwise been complied with and trial was ready to commence – Where the explanation of the delay was outweighed by the substantial prejudice to the Applicant if permission were granted – Application dismissed – Ex tempore reasons for judgment  

BANKRUPTCY – Application for review of a registrar’s decision – decision of judicial registrar to sequester the estate of the respondent debtor – extensive litigation history – where respondent debtor claims interest calculated on the bankruptcy notice is misstated – found bankruptcy notice defective or irregular in form rather than substance and s 306(1) of the Bankruptcy Act applies  – found non-compliance with the Bankruptcy Rules by the applicant creditor – found that the applicant creditor has not satisfied the requirements of s 52(1) of the Bankruptcy Act - sequestration order set aside. 

INDUSTRIAL LAW – Applicant seeks declaration of contraventions of the Fair Work Act 2009 (Cth) – contravention of civil remedy provisions – penalties sought – consideration of factors relevant to penalty – where respondents cooperated by signing a statement of agreed facts – where underpayment has not been rectified – where conduct demonstrates deliberate disregard for obligations under the Act – penalties ordered pursuant to s 546(1). 

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 satisfy cl 500.211 of sch 2 of the Migration Regulations 1994 (Cth) – whether Tribunal erred by not affording the applicant procedural fairness – consideration of s 359(2) of the Migration Act 1958 (Cth) – found the applicant was invited to provide information in writing to the Tribunal pursuant to s 359(2) and that no denial of procedural fairness arose from not allowing the applicant a further opportunity to provide information or appear before the Tribunal – whether the Tribunal erred in not exercising its discretion to adjourn the review – found the Tribunal’s reasons disclosed an evident, transparent and intelligible justification for its decision not to adjourn the review – found no jurisdictional error on behalf of the Tribunal – application dismissed. 

MIGRATION – Application for judicial review – Safe Haven Enterprise (Subclass 790) visa – where Immigration Assessment Authority affirmed the decision of the first respondent that the applicant is not a person in respect of whom Australia has protection obligations – whether a finding made by the Authority was illogical or irrational – found the country information relied upon by the Authority did not support the Authority’s reasoning – consideration of the principles for relying on an unwarranted assumption in establishing jurisdictional error – found the Authority made a finding that was illogical or irrational and not founded on probative evidence – consideration of materiality – found the error to be material – jurisdictional error established – application allowed. 

MIGRATION – Application in a case seeking reinstatement of judicial review application – Student (Temporary) (Class TU) visa –  where the applicants applied for judicial review of decision of Administrative Appeals Tribunal – where applicants judicial review application was dismissed due to non-appearance – consideration of principles relating to an application for reinstatement – where the applicants did not provide a reasonable excuse for their non-attendance at the hearing – whether the judicial review application has reasonable prospects of success – proposed grounds of review not reasonably arguable – application in a case dismissed. 

MIGRATION – Protection (Class XA) (subclass 866) visa – judicial review of a decision of the Administrative Appeals Tribunal – failure to consider – no jurisdictional error established – application dismissed

MIGRATION – Application for judicial review – Protection (subclass 866) visa – where the applicant and his wife, GSX18, had their applications for review heard by the Administrative Appeals Tribunal at the same time – where the Tribunal affirmed decision of the first respondent that the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 –  whether Tribunal applied the appropriate weight to the applicant’s evidence – found weightage is a matter for the Tribunal – whether the Tribunal considered irrelevant country information – where certain ground raised by applicant sought impermissible merits review – whether the Tribunal erred by making a finding that was illogical or irrational – found finding was reasonable – whether the Tribunal denied the applicant procedural fairness – found no failure of procedural fairness – no jurisdictional error established – application dismissed. 

MIGRATION – Application in a case seeking reinstatement of judicial review application – where applicants’ applied for judicial review of decision of Administrative Appeals Tribunal – where applicants’ judicial review application dismissed due to non-attendance – significant procedural history – where substantive application dismissed for non-appearance on four separate occasions – found no reasonable explanation for delay – found grounds of substantive application are not reasonably arguable – application dismissed. 

MIGRATION – Student (Temporary) (Class TU) (subclass 500) visa – judicial review of a decision of the Administrative Appeals Tribunal – failure to inquire – procedural fairness – no jurisdictional error established – application dismissed 

HUMAN RIGHTS – Unlawful discrimination – alleged discrimination on basis of race, sex and disability – alleged sexual harassment – employed medical practitioner – anaesthetist training programme – application for an extension of time to bring application – whether prohibition on making of application where prior application made to and determined by State Tribunal
PRACTICE AND PROCEDURE – Extension of time in which to file application – factors for consideration – length of delay – where delay of over two years – reason for delay – prejudice – whether sufficient arguable merit in proposed application – whether prohibition on making of application where prior application made to and determined by State Tribunal
PRACTICE AND PROCEDURE – whether prohibition on making of application where prior application made to and determined by State Tribunal 

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 misconstrued the applicant’s risk and fear of significant harm – whether the Tribunal erroneously and narrowly construed the existence of the risk to life and fear of significant harm – whether the Tribunal had no jurisdiction to make the decision because its ‘reasonable satisfaction’ was not arrived at in accordance with the provisions of the Migration Act 1958 (Cth) – whether the Tribunal failed to investigate the applicant’s claims – whether the Tribunal failed to comply with the mandatory requirement in s 424A of the Migration Act – no jurisdictional error established – application dismissed. 

MIGRATION – non-appearance by or on behalf of the applicants where a solicitor remains on the record for the applicants – limited engagement with the proceedings more generally – prudent course where instructions are withdrawn but no notice of this has been filed by or on behalf of an applicant – potential exposure to costs if this does not occur – application dismissed for non-appearance

MIGRATION - Employer Nomination (Permanent) (Class EN) (subclass 186) visas – Application for judicial review – Whether decision to refuse to grant the visas contained a jurisdictional error - Whether Tribunal obliged to reconsider a decision – Application interconnected with employer application for an extension of time – Applications heard concurrently – Application for judicial review dismissed. 

MIGRATION – Protection (Class XA) (Subclass 866) visa – application for extension of time to seek judicial review – whether proper explanation of delay - consideration of the interest of the administration of justice – application dismissed. 

MIGRATION – judicial review – protection visa – applicant failed to appear at a scheduled in-person hearing before the Tribunal – Tribunal exercised discretion under s 426A(1A)(a) of the Migration Act 1958 (Cth) to make a decision on the review without taking any further action to allow or enable the applicant to appear before it – no jurisdictional error disclosed on the basis the Tribunal acted reasonably in exercising the discretionary power in s 426A(1A) – application dismissed 

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal misapplied ss 36(2)(a) and (aa) – whether the Tribunal made unreasonable findings – irrationality – no jurisdictional error established – application dismissed 

MIGRATION - Judicial review of decision affirming decision not to grant a Protection (Class XA) (subclass 866) visa – dismissal for non-appearance. 

MIGRATION – protection (subclass 866) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – no appearance by the applicant at the Tribunal hearing – extension of time – substantial delay – merits of the application weigh in the applicant’s favour – satisfied that it is in the interests of the administration of justice to extend time – application for an order extending the 35-day period within which an application under s 477(1) of the Migration Act 1958 (Cth) may be made be extended

MIGRATION – judicial review – protection visa – when adverse credibility findings can give rise to jurisdictional error – alleged Tribunal incorrectly understood the evidence or took into account irrelevant finding about the nature of an organisation and/or was legally unreasonable – failure to consider corroborative evidence alleged – no jurisdictional error disclosed – application dismissed 

MIGRATION - Employer Nomination – Application for an extension of time – Whether in the interests of the administration of justice to extend time – Whether reasonable explanation of delay - Application interconnected with judicial review application of employee - Employer Nominated (Permanent) (Class EN) visas – Non-existence of an approved employer nomination - Whether the terms and conditions of the employed position were no less favourable than conditions provided to an Australian citizen or permanent resident – Whether Tribunal considered irrelevant material in breach of the statutory test - Applications heard consecutively – Application for an extension of time granted – Application for judicial review dismissed. 

 MIGRATION – Partner (Temporary) (Class UK) (subclass 820) visa – where evidence has not been provided to establish family violence – whether the Tribunal ignored relevant consideration – whether the Tribunal failed to put adverse information to the applicant – whether the Tribunal asked inappropriate questions – whether the Tribunal erred in rejecting a report from a medical practitioner – proposed grounds of judicial review have no merit – application dismissed 

MIGRATION – reinstatement application – whether reasonable explanation for non-appearance – whether prejudice to the Minister – whether arguable case – application dismissed as no arguable case on judicial review 

MIGRATION – Student (Temporary) (Class TU) visa – applicant seeks extension of time to seek judicial review – extension of time granted - The Court has no jurisdiction to review the delegate’s decision – alleged failure of the Tribunal to afford the applicant a fair hearing – proposed grounds of judicial review have no merit – application dismissed