Judgments

INDUSTRIAL LAW – general protections – whether adverse action taken against applicant – whether refusal to provide allegations details to the applicant constitutes adverse action – found refusal to provide details of the allegations does not constitute adverse action – whether the refusal to provide allegations details was because the applicant exercised a workplace right – found exercise of workplace rights were not operative reason for refusal to provide allegation details – whether a show cause letter constituted a threat to dismiss the applicant – found show cause letter does not convey a threat and accordingly does not constitute adverse action – reverse onus discharged by employer in relation to all three instances of adverse action – whether the respondent breached s 588 of the Workplace Injury Rehabilitation and Compensation Act 2013 by using a medical report to decide termination– found no tortious cause of action or breach of statutory duty – 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 the applicant was denied procedural fairness – found no unfairness arose – whether the Authority failed to exercise its discretion to obtain new information from the applicant under s 473DC – found the review was conducted in accordance with Part 7AA - found the Authority’s reasons for refusing to exercise its discretion under s 473DC were reasonable – found no jurisdictional error – application dismissed.

MIGRATION – application for judicial review – Safe Haven Enterprise (Subclass 790) visa – where Immigration Assessment Authority affirmed decision of first respondent that first applicant is not a person in respect of whom Australia has protection obligations – whether the Authority’s findings were illogical or unreasonable – whether the Authority’s decision lacked an evident or intelligent justification – found the Authority’s reasoning was intelligent and its conclusion was open to it – whether the Authority failed to consider certain country information – found the Authority did not expressly refer to the country information but did consider the substance of the information in its reasons – found no jurisdictional error – application dismissed.

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal affirming delegate’s decision not to grant a visa – application for judicial review filed out of time – extension of time application – whether there was an adequate explanation for a moderate delay – whether there was an arguable case of jurisdictional error – extension of time application refused

MIGRATION – application for judicial review –Temporary Protection (Class XD) visa – where applicant’s original Protection (Class XA) visa application taken to be a valid application for a Temporary Protection visa following legislative amendments – where Administrative Appeals Tribunal set aside decision of the first respondent and substituted it with a refusal to grant the applicant the visa –– where submissions raised by applicant sought impermissible merits review – grounds unparticularised –whether interpreter failed to interpret at hearing before Tribunal – whether Tribunal erred by making a finding that was illogical or irrational – found the Tribunal’s reasoning was open to it – found no jurisdictional error on behalf of the Tribunal – application dismissed.

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – consideration of the genuine temporary entrant criterion – whether Tribunal failed to have regard to the applicant’s circumstances on an intellectual level – no jurisdictional error established – application dismissed

MIGRATION – extension of time application – applicant filed 1 day out of time – Temporary Business Entry (Class UC) (Temporary Work) (Skilled) (Subclass 457) visa – where Tribunal affirmed a decision of the first respondent to refuse to grant the visa – where applicant was not the subject of an approved nomination in accordance with cl 457.233(4)(a) of the Migration Regulations 1994 – where applicant conceded sole ground of review did not establish jurisdictional error – found grounds of substantive application are not reasonably arguable – application dismissed.

FAIR WORK – Oral application for an adjournment of the hearing by the Applicant on 13 November 2024 – evidence in final hearing concluded on 8 November 2024 – proceeding commenced by Applicant on 4 July 2023, oral application for adjournment on 13 November 2024 opposed by Respondent, oral application for adjournment dismissed.

INDUSTRIAL LAW - admitted contraventions of s 716(5) and s 536(1) of the Fair Work Act 2009 (Cth) – declarations and orders made to give effect to admitted contraventions – assessment of pecuniary penalties.

PRACTICE AND PROCEDURE – Application to review decision of a Registrar to set aside a subpoena to produce documents – whether subpoena issued for a legitimate forensic purpose – whether “on the cards” that subpoenaed documents will materially assist – whether application for subpoena an abuse of process – whether other sufficient cause - whether new claims of negligence, defamation and victimisation material - whether issue estoppel based on findings in relation to same documents in earlier bankruptcy notice set aside proceedings –whether production of documents a breach of Harman Undertaking – whether iniquity rule applicable

BANKRUPTCY – Creditors petition – application to review decision of a registrar to set aside a subpoena to produce documents – principles in relation review of Registrar’s decision – whether monies owed – whether other sufficient cause

CONSUMER LAW - alleged misleading and deceptive conduct - subpoena compliance at issue - whether documents sought by subpoena subject to legal professional privilege – legal professional privilege engaged.

MIGRATION – judicial review of a decision of the Administrative Appeals Tribunal – refusal to grant Partner (Temporary) (Class UK) Subclass 820 visa – where applicant sought to satisfy visa criterion through claim of non-judicially determined family violence – where applicant failed to attend hearing before Tribunal – where Tribunal made a decision on the review without taking any further action to allow or enable the applicant to appear before it – where applicant failed to meet prescribed evidentiary requirements – no jurisdictional error – application dismissed

MIGRATION – application for judicial review – Medical Treatment (Visitor) (Class UB) (Subclass 602) visa – non-appearance at scheduled hearing – whether decision to decide review and not to dismiss relevant application was reasonable – issue of materiality – application dismissed.

MIGRATION – application for judicial review – protection visa – whether well-founded fear of harm – complementary protection – whether Tribunal considered gender in context of claims –whether failure to apply proper test for relocation – application dismissed.

MIGRATION – student (subclass 500) – visa cancelled – breach of condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (Cth) – decision of the (then) Administrative Appeals Tribunal to affirm delegate’s decision – judicial review – whether Tribunal failed to give the applicant a fair hearing – whether Tribunal misapplied the law – whether Tribunal failed to consider extenuating circumstances – whether Tribunal failed to consider compelling circumstances – whether Tribunal failed to consider relevant facts – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed

MIGRATION – Administrative Appeals Tribunal – Partner (class UK) (subclass 820) cancellation under s 116(1)(g) - whether the Tribunal failed to balance different factors – whether reg 2.43(1)(oa) is inconsistent with the Migration Act 1958 (Cth) -  whether undue findings of s 116(1)(a) were made – whether any jurisdictional error exists – application dismissed.

MIGRATION –Student (Temporary) (Class TU) (Subclass 500) Higher Education Sector visa - application for judicial review – consent to review without a hearing – no duty to inquire about applicant’s consent – decision of Tribunal reasonable and logical - no jurisdictional error shown - application dismissed.

PRACTICE & PROCEDURE – where orders made requiring the respondents to enter an appearance and file a defence – where the respondents failed to comply with orders of the Court – where it was appropriate for judgment to be entered in default – orders accordingly. 

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA failed to apply correctly s 473DD of the Migration Act 1958 (Cth) in the manner contended by the applicant – whether the IAA failed to consider a claim or an integer of a claim – application dismissed

MIGRATION – application for review of a registrar’s decision – review application filed out of time – whether an extension of time should be granted – length of delay and explanation for that delay – any prejudice caused – merits of the underlying application for review – application dismissed.

MIGRATION – protection visa – application for judicial review of decision of Administrative Appeals Tribunal not to grant visa - claim of involvement with Malaysian gang members and illicit drug trafficking - whether Malaysian police and authorities can provide adequate protection - whether applicant a person of interest to authorities - where Tribunal found fear of persecution not well-founded - whether reasons of Tribunal internally incoherent - whether reasons legally unreasonable - reasons ambiguous but no jurisdictional error established

MIGRATION – Application for judicial review – cancellation of student visa – Convention of the Rights of the Child – whether claim was explicitly made or arose from material – whether Tribunal erred in considering – best interests of child – application allowed.

MIGRATION – Administrative Appeals Tribunal - student visa (class TU) (subclass 500) visa – Whether the applicant was enrolled in a course of study at the time of the Tribunal decision – Where the grounds of judicial review are not supported by particulars – No merit – Application dismissed.

MIGRATION – Where it was a pre-condition for the grant of the visa that there be an approved nomination in respect of the position the nominee sought to be employed in – where there was no approved nomination – no jurisdictional error established – application dismissed.

MIGRATION – Administrative Appeals Tribunal – Whether the Tribunal’s findings of a breach of condition 8202 were contrary to s 119 of the Migration Act 1958 (Cth) – Whether there was an obligation to put information to the applicant pursuant to s 359A – whether the Tribunal’s use of the term “fundamental breach” in relation to the student visa was legally unreasonable – no merit – application dismissed.

MIGRATION – Costs – Leave to file a Notice of Discontinuance – Costs consequent on filing of Notice of Discontinuance –  Order for costs in a fixed amount

BANKRUPTCY – Consequential issues following decision where creditor’s petition dismissed and sequestration order made by Registrar set aside – Order for unsuccessful creditor to pay the Trustee’s reasonable remuneration and expenses of administering the estate – Order for unsuccessful creditor to pay the Trustee’s costs of the proceeding – Whether costs of the respondent debtor should be taxed on an indemnity or standard basis – Order for unsuccessful creditor to pay the respondent debtor’s costs of the proceeding on a standard basis

 HUMAN RIGHTS – Application filed two days out of time – complaint terminated by Australian Human Rights Commission – extension of time granted

 MIGRATION – Registrar review application – where Applicant has requested multiple adjournments – whether a medical certificate provided by the Applicant is in accordance with Court orders – whether the matter should be summarily dismissed for non-compliance with orders – where Applicant’s case is hopeless in any event – application dismissed with costs.

MIGRATION – Administrative Appeals Tribunal – protection visa – whether a claim arose on the materials that the Tribunal did not consider – whether the Tribunal failed to afford the applicant procedural fairness.

MIGRATION – whether the Tribunal failed to carry out a proper review – whether the Tribunal misconstrued or misapplied the regulations – no jurisdictional error established – application dismissed.

MIGRATION – extension of time – 13 days out of time – protection visa – inadequate explanation for delay – no reasonably arguable case for jurisdictional error – application dismissed.

MIGRATION – Judicial Review of a decision of the Tribunal to refuse the applicant a student visa – Genuine temporary entrant criteria – application dismissed

MIGRATION – application for review of decision made by registrar – where registrar summarily dismissed application for judicial review of decision of Administrative Appeals Tribunal – no appearance by applicant – application dismissed – costs ordered

MIGRATION – Judicial review of a decision of the Administrative Appeals Tribunal affirming a refusal to grant student visa - Whether Tribunal misconstrued clause 500.212(a) of Sch 2 to the Migration Regulations 1994 – Where applicant wanted to support a family member in Australia for the duration of their, not indefinite, legal proceedings -  Where Tribunal found applicant did not satisfy cl 500.212 on the basis of cl 500.212(a) – Error of the kind identified in Eros - Jurisdictional error established

CONSUMER LAW – COSTS – dismissal of Application in a Proceeding seeking orders for forensic imaging and access – Respondents seek party-party costs up to 12 June 2024 and costs on an indemnity basis thereafter – costs awarded according to scale

FAIR WORK – assessment of pecuniary penalties as against the second respondent – nature and extent of loss – specific and general deterrence - payment of penalty to be made.

MIGRATION – Student (Temporary) (Class TU) visa – decision of the Administrative Appeals Tribunal – judicial review – procedural fairness – whether the Tribunal had provided the applicant an opportunity to give evidence & present argument relating to the issues arising in relation to the decision under review under s360 of the Migration Act 1958 (Cth) (“the Act”) – whether the Tribunal had a statutory obligation under s 359AA or s 359A of the Act to give the applicant notice – whether the Tribunal complied with obligation to give reasons under s 368 of the Act – apprehended bias – whether the Tribunal identified a wrong issue – whether the Tribunal failed to take into account relevant considerations or took into account irrelevant considerations – unreasonableness – no jurisdictional error established – application dismissed.

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Student (Temporary) (class TU) visa – whether applicant satisfied genuine temporary entrant criterion – no jurisdictional error established – application dismissed – costs ordered

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Student (Temporary) (Class TU) (subclass 500) visa – where applicant not enrolled in course of study – where cl 500.211 not met – no jurisdictional error established – application dismissed – costs ordered

MIGRATION – application for judicial review of the decision of the Administrative Appeals Tribunal to not grant a protection visa – Applicant afforded procedural fairness and no obligation to provide further hearing before Tribunal – Tribunal’s mistaken conclusion was not a material error – consideration of an invalid visa application was not information within the meaning of s 424A of the Migration Act 1958 (Cth) as it was not the matter that undermined or rejected the Applicant’s claim – application dismissed with costs

MIGRATION – judicial review – sch 2, cl 500.212 Migration Regulations 1994 (Cth) - genuine applicant for entry and stay as a student – court’s role in examining Tribunal’s reasons when self-represented litigant – no jurisdictional error established

MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizen of Pakistan – whether failure to consider the risk of harm to the applicant in Islamabad in the context of whether it was reasonable for him to relocate from Parachinar to Islamabad – whether material jurisdictional error.

MIGRATION – Contributory Parent (Migrant) visas -judicial review of decision of Administrative Appeals Tribunal not to grant visas – where applicants failed to disclose member of the family in visa application – where the applicants allege that daughter has been legally  “disowned” and no longer part of family unit – whether failure to declare daughter is false and misleading – where failure to meet visa criteria established - whether there compassionate or compelling grounds for waiving public interest criterion – where no grounds for waiver established – application dismissed

MIGRATION – Whether Tribunal properly considered evidence of applicant’s cousin in related reviews – whether Tribunal failed to put information to applicant from cousin for comment pursuant to s 424A

MIGRATION - costs – where costs of the proceeding significantly exceed the event based “scale” amount at Schedule 2 of Division 1, Part 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – where the applicant was wholly unsuccessful in the proceeding – consideration of factors relevant to the exercise of the discretion to order costs – costs as agreed or taxed.

MIGRATION – protection visa – application for judicial review of decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to properly consider corroborative evidence and therefore failed to complete its statutory task – jurisdictional error established – application allowed with costs.

FAIR WORK – interlocutory relief sought by way of injunction – current contract for service to end – injunction sought for parties to enter a further contract on the same terms – whether there is an arguable case – balance of convenience – application dismissed.

INDUSTRIAL LAW – Fair Work – penalties – the respondents were involved in contraventions by a corporation, which is now in liquidation – quantum of penalties agreed by the parties.

MIGRATION – Costs – Whether the Court ought to exercise its discretion to proportionally reduce the costs payable to the successful first respondent by 50% – where the applicant owed a duty to particularise the bases for such a claim – where the usual order as to costs being ordered on a party/party basis ought to apply – orders accordingly.