Judgments

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 500.212(a) of Sch 2 of the Migration Regulations 1994 (Cth) – whether Tribunal erred by failing to provide genuine consideration to mandatory relevant considerations and the applicant’s immigration history – found no jurisdictional error on behalf of the Tribunal – application dismissed.

MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence provided by the applicants – whether there were problems with the interpretation provided at the Tribunal hearing or the way in which the first applicant was questioned by the Tribunal – whether the first applicant met the criteria for the grant of the visa – no jurisdictional error – application dismissed.

MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to have regard to relevant information or evidence – whether the Tribunal’s decision was affected by bias – whether the Tribunal failed to afford the applicant procedural fairness – whether the applicant was entitled to legal representation – whether the Tribunal erred by proceeding to determine the matter based on the evidence before it (without inviting the applicant to attend a hearing before it) – no jurisdictional error – application dismissed.

MIGRATION - application for judicial review – student (Temporary) (Class TU) (Subclass 573) 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 – Student visa cancellation – decision of the then Administrative Appeals Tribunal – extension of time request – minimal delay – no prejudice – inadequate explanation provided – no arguable case of jurisdictional error – extension of time refused.   

MIGRATION – judicial review of decision of Administrative Appeals Tribunal – refusal of adjournment application relying on inadequate medical certificate - dismissal for non-appearance at court hearing – costs ordered 

MIGRATION – student (class TU) (subclass 500) visa – review of decision of the (then) Administrative Appeals Tribunal – judicial review – genuine temporary entrant criterion – whether Tribunal considered irrelevant consideration – whether Tribunal’s decision irrational or illogical – whether Tribunal’s decision legally unreasonable – Tribunal’s decision attended by jurisdictional error – writ of certiorari issued – writ of mandamus issued

PRACTICE AND PROCEDURE – Third party request for access to documents on the electronic court file – where matter very recently commenced – where respondents not known to be served or aware of the proceeding – applicable principles and consideration of the interests of justice.  

PRACTICE AND PROCEDURE – application pursuant to r 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) seeking reinstatement of a judicial review application – where the applicant’s application for judicial review was dismissed for non-appearance at a callover – application for reinstatement dismissed. 

 INDUSTRIAL LAW – application to strike out – where statement of claim does not follow Federal Court Rules in format – where statement of claim does not disclose a cause of action – where the Court not satisfied that the applicant can successfully prosecute his claim – statement of claim struck out – application summarily dismissed.  

MIGRATION LAW – decision of the Immigration Assessment Authority to not grant a protection visa – claims related to imputed support for the Liberation Tigers of Tamil Eelam – profile of the Applicant – no error in relation to IAA’s consideration of relevant or new information – no logical probative ground for finding Applicant would have no imputed or suspected support of the LTTE based on the IAA’s other findings – error not material – application dismissed with costs 

MIGRATION – Persecution – Review of Immigration Assessment Authority (“IAA”) decision – visa – protection visa – refusal.  ADMINISTRATIVE LAW – Allegation that the IAA’s decision was affected by jurisdictional error.  

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal erred in finding inconsistency and embellishment in applicant’s evidence - whether Tribunal failed to assess significance and weight of inconsistency – whether Tribunal misunderstood or failed to consider applicant’s explanation for inconsistency - application dismissed 

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal misconstrued s 36(2A) – whether the Tribunal had jurisdiction – “reasonable satisfaction” – whether failure to consider the applicant’s claims – whether the Tribunal failed to comply with s 424A – no jurisdictional error established – application dismissed.

MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizens of Sri Lanka – ethnic Tamils – whether failure to obtain, supply and have regard to relevant material – whether material provided by the referred applicant to the person making the decision before the decision was made – whether any other material that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review – whether failure to consider all integers of claims made – claim of inability to subsist – claim of extortion – whether failure to have regard to evidence – whether unreasonableness – whether jurisdictional error  WORDS AND PHRASES - “to the person making the decision” – “engaging with the applicant and the application” – “material that is in the Secretary’s possession or control”

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal had a proper basis to make adverse credibility findings – whether failure to consider relevant material – unreasonableness – whether denial of procedural fairness – whether the Tribunal misapplied ss 5J and 36(2)(aa) of the Act – no jurisdictional error established – application dismissed.

MIGRATION – review of a decision of the Administrative Appeals Tribunal – student visa – application dismissed. 

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing student visa – whether Tribunal failed to give procedural fairness to the applicant – whether Tribunal erred in determining applicant was not a genuine temporary entrant under cl 500.212 of the Migration Regulations 1994 (Cth) – consideration of typographical error – no jurisdictional error established – application dismissed. 

MIGRATION – student visa – decision of the Administrative Appeals Tribunal – genuine temporary entrant criterion – consideration of Direction 69 factors – no formally articulated grounds of review – where self-represented applicant accepts no error at the hearing – no jurisdictional error established – application dismissed

MIGRATION LAW – judicial review of decisions of the Administrative Review Tribunal to not grant Child (Migrant) (Class AH) visas – sponsor and five visa applicants – assessment of the sponsor and applicant’s evidence – Tribunal relied on unwarranted assumption – assumption was material to decision – Tribunal misapplied regulation 1.14(b) – application allowed  

MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal was correct when determining that it had no jurisdiction – whether the Tribunal ought to have reinstated the applicant’s review application – whether the Tribunal was required to invite the applicant to attend a hearing before it – whether the Tribunal’s decision was illogical, irrational or unreasonable – no jurisdictional error – explanation regarding Ministerial intervention – application dismissed.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal – dismissal for non-appearance – costs ordered 

MIGRATION – Application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) – whether the Secretary’s referral of material under s 473CB of the Migration Act 1958 (Cth) was affected by relevant error due to omission of a letter making protection claims – materiality – application succeeds 

BANKRUPTCY– Application for declaration and orders requiring vacant possession of property and the sale of such property – no arguable defence to the application – orders accordingly. 

INDUSTRIAL LAW – Failure to comply with compliance notice – application for default judgment against company and its sole director – where respondents have not entered an appearance or participated in proceeding – default judgment – declarations made. 

INDUSTRIAL LAW – where the first respondent failed to pay entitlements due to an employee for a small sum – where the second respondent was accessorily liable for the first respondent’s contravention – where deterrence nonetheless a consideration for the imposition of pecuniary penalties – orders accordingly. 

INDUSTRIAL LAW – FAIR WORK – failure to comply with a compliance notice – application for imposition of pecuniary penalties – consideration of factors relevant to penalty – pecuniary penalties ordered. 

MIGRATION – Where grounds of review were meaningless and wholly lacking in particularity – where the applicant had on two occasions been given the opportunity to amend the Originating Application for Review – where the applicant did not require the assistance of an interpreter at the time of the hearing before the Court – where the applicant failed to provide any reason as to why an order extending time for the commencement of the review application would be in the interests of the due administration of justice – no jurisdictional error established – application dismissed. 

MIGRATION – Protection visa – judicial review of multiple decisions of the Administrative Appeals Tribunal – where husband and wife separately applied for a protection visa – where both applications were dismissed by the Tribunal for non-appearance and the dismissal decision later confirmed - where both applicants made a succession of applications to the Tribunal following the dismissal of their respective review applications – whether the dismissal and confirmation decisions complied with procedural requirements – whether the dismissal decision was legally unreasonable - whether Tribunal correctly found it did not have jurisdiction to conduct further reviews of the dismissal decision – where Tribunal complied with procedural fairness and statutory obligations –  where decision to proceed under s 426A(1A)(b) was supported by intelligible reasoning - both applications dismissed – both applicants to pay costs in fixed amount reflecting Scale at time of applications.

MIGRATION – application for juridical review of a decision of the Administrative Review Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal failed to have regard to relevant considerations – whether the Tribunal decision was affected by bias – whether the Tribunal failed to consider the risk of harm the applicant would face on his return to the receiving country – whether the Tribunal made jurisdictional errors in making adverse credibility findings – 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 reasoned illogically, irrationally and failed to give the applicant’s claim active intellectual consideration – whether the Tribunal made unwarranted assumptions – whether the Tribunal misapprehended the evidence of the applicant – whether the Tribunal made unreasonable credit findings – whether the Tribunal failed to consider all of the corroborative evidence – whether the Tribunal failed to determine that the law prohibiting publication of Liberation Tigers of Tamil Eelam symbols was discriminatory to the applicant for Convention reasons – jurisdictional error established – writs issued.

MIGRATION – protection visa – judicial review of a decision of the Administrative Appeals Tribunal – where applicant feared he would be placed in a compulsory drug treatment facility upon return to Vietnam –  where applicant claimed he would be denied access to a methadone program - whether Tribunal failed to apply the “real risk” test – whether Tribunal considered the applicant’s claim or integral part of his claim concerning access to methadone program – finding of jurisdictional error – writs issued – costs order in applicant’s favour 

MIGRATION- Student (Temporary) (Class TU) (Subclass 500) visa - decision of Administrative Appeals Tribunal – whether the Tribunal ought to have provided a hearing or granted an adjournment – whether the Tribunal failed to take into account relevant considerations – no jurisdictional error – application dismissed

MIGRATION- Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence- whether findings unsupported by evidence – whether the applicant failed to properly apply the law – no jurisdictional error-application dismissed

MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant applicant protection visa – whether no evidence to support finding made by IAA – whether IAA ought to have considered whether Iranian authorities would become aware upon applicant’s return to Iran that passport used to depart Iran in 2012 was fraudulent – whether IAA erred in non-satisfaction that new information was credible within meaning of s 473DD(b)(ii) - application dismissed

MIGRATION – regional employer nomination visa –application for review of a summary dismissal decision made by a Registrar – where applicant did not have an approved nomination or indeed a sponsor at the relevant times – application can not succeed and is dismissed with costs

MIGRATION LAW – judicial review of a decision of the Administrative Appeals Tribunal to not grant a protection visa – Applicants raised new protection claims concerning a loan shark and discrimination of adoptive child – credibility concerns – largely unparticularised grounds of review and Applicants seeking impermissible merits review – no jurisdictional error identifiable – application dismissed with costs

MIGRATION LAW – extension of time of 428 days required – substantial delay – Applicant’s attempts to file application 233 days out of time – interpreter slang – grounds of review seek impermissible merits review – no reasonable prospects of success – extension not granted – application dismissed with costs

MIGRATION LAW – judicial review of a decision of the Administrative Appeals Tribunal to not grant a protection visa – Falun Gong practitioner – no jurisdictional error established – application dismissed with 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 had not complied with condition 8202(2) – whether Tribunal erred by failing to take into consideration the Applicant’s circumstances – both parties invited to make further written submissions to address whether the Tribunal was obliged to consider the fact the applicant had re-enrolled in a course of study after the NOICC - found no jurisdictional error on behalf of the Tribunal – Application dismissed.

MIGRATION – Migration Act 1958 (Cth) – application for Regional Employer Nomination (Subclass 187) (Regional Sponsored Migration Scheme) visa – Administrative Appeals Tribunal not satisfied that the applicant had an approved standard business sponsor as required by cl 187.311 of Schedule 2 to the Migration Regulations 1994 (Cth) and affirmed Delegate’s decision to refuse the application – application for judicial review – no meaningful ground of jurisdictional error asserted – no jurisdictional error established – applicants’ application for an extension of time to review the Registrar’s decision and the Applicants’ review application dismissed

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal was required to make finding as to why militia group issued threat letter to applicant’s family - application dismissed

 MIGRATION – judicial review – student visa – whether the Tribunal failed to consider relevant evidence – whether the Tribunal acted unreasonably – procedural fairness – whether weight given to certain evidence reveals jurisdictional error – no jurisdictional error found – application dismissed. 

MIGRATION– Whether the Tribunal failed to consider a claim said to have been advanced on behalf of the applicant – whether any claim was clearly articulated – whether the Tribunal ought to have raised an unarticulated claim on behalf of the applicant – no jurisdictional error established – application dismissed.  

INDUSTRIAL LAW - where there was evidence of a failure on the part of each respondent to comply with a duly issued compliance notice - where the respondents have failed to participate in the proceedings – where declarations and pecuniary penalty orders made accordingly. 
 

MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Protection (subclass 866) visa – where applicant was granted a protection visa which was subsequently cancelled – where applicant had returned to Iraq on two occasions following grant of protection visa notwithstanding claimed fears of harm – consideration of whether Tribunal engaged in illogical or irrational reasoning – where it was open for the Tribunal to conclude that the applicant had provided incorrect information – consideration of whether Tribunal failed to comply with ss 424A and 424AA of the Migration Act 1958 (Cth) – finding that applicant was put on notice of and did respond to the Tribunal’s concerns – consideration of whether Tribunal acted unreasonably in refusing two adjournment requests – finding that first refusal of adjournment not unreasonable and applicant has not established on balance of probabilities that second adjournment request was made – no jurisdictional error established – application dismissed with costs. 

MIGRATION -  protection visa - application for judicial review of decision of Immigration Assessment Authority refusing visa – where applicant bore scars relating to alleged torture – where scars visually inspected and described by the delegate – where Authority relied on delegate’s description – whether there was an informational gap in the review – whether Authority should have invited applicant to interview – where Authority obtained recent country information not available to delegate – whether Authority failed to properly consider later information regarding monitoring of social media activities by Iranian authorities – whether Authority relied on outdated country information – no error found 

MIGRATION –  protection visa – where applicant claims to fear harm due to conversion to Christianity – testing of applicant’s religious beliefs - whether the Immigration Assessment Authority erred by applying an arbitrary and unexplained standard of doctrinal knowledge in considering applicant’s commitment to Christianity – whether the Authority considered the particular circumstances of the applicant – whether the Authority erred in relying upon findings recorded by the delegate without interrogation of the source material  – whether the Authority made findings without a probative basis –  no jurisdictional error - application dismissed with costs  

MIGRATION – Where Tribunal failed to comply with section 359A obligation in relation to information which would have been a potential basis for affirming the decision, by ultimately finding on an alternative basis 
 

MIGRATION – Review of Registrar decision made out of time – where applicant fails to seek extension of time, elect for oral hearing and make written submissions – review application is susceptible to dismissal as incompetent