Judgments
Division 2 - General federal law
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.
MIGRATION – Application for Review of a Registrar’s decision – Whether costs order can be set aside –Where the Applicant’s legal representative sought leave to file Notice to Withdraw as a Lawyer in Court – Leave not granted – Application refused.
PRACTICE AND PROCEDURE – oral application for a hearing to be adjourned – application granted.
BANKRUPTCY - review of Registrar’s decision to make a sequestration order – hearing de novo – validity of bankruptcy notice – section 41(5) applies – whether applicant debtor is insolvent – application dismissed
MIGRATION – protection – judicial review of decision of Immigration Assessment Authority to refuse a Safe Haven Enterprise Visa – where applicant sought to raise new information at the review – whether the new information was credible personal information – whether new information capable of being believed – where Authority obtained and relied on other new information to assess merit of the applicant’s information – misapplication of s 473DD conceded by Minister – whether error material – whether realistic possibility of a different outcome - applicant entitled to relief
MIGRATION – Safe Have Enterprise visa – application for judicial review of decision of the then Immigration Assessment Authority – where the Authority constructively failed to exercise its jurisdiction to determine if the Applicants met the criteria as members of the same family unit of a non-citizen who met the criterion at s.36(2)(a) and/or (aa) – application allowed with costs
MIGRATION – Safe Have Enterprise visa – application for judicial review of decision of the then Immigration Assessment Authority – whether the Authority was legally unreasonable in its findings of inconsistencies between evidence of the Applicant and his spouse – where the Authority constructively failed to exercise its jurisdiction to determine if the Applicants met the criteria as members of the same family unit of a non-citizen who met the criterion at s.36(2)(a) and/or (aa) – application allowed with costs.
MIGRATION – Safe Have Enterprise visa – application for judicial review of decision of the then Immigration Assessment Authority – where Applicant made new claims of sexual assault that were not before the delegate and the Authority was not satisfied that the new information was credible personal information and did not consider it pursuant to s.473DD – whether the Authority materially erred in its application of the credibility test – whether the Authority ought to have exercised its discretion pursuant to s.473DC to invite the Applicant to an interview – whether the Authority failed to exercise its jurisdiction to determine if the Applicant met the criteria as a member of the same family unit of a non-citizen who met the criterion at s.36(2)(a) and/or (aa) – application allowed with costs.
MIGRATION – Where application for judicial review of decision of Refugee Review Tribunal dismissed by a Registrar for non-appearance at first Court hearing – where Notice of Discontinuance subsequently filed in respect of dismissed proceedings – where subsequent judgment of the Full Court of the Federal Court in another matter that Registrar’s had no power to dismiss application for non-appearance at first Court hearing – whether Registrar’s order void from the beginning – where Court an inferior court of record – where Registrar’s order for dismissal of application subsequently set aside by consent – whether originating application still on foot
PRACTICE AND PROCEDURE – Notice of Discontinuance - application to set aside – whether Notice of Discontinuance inoperative or ineffective – effect of applicant’s illiteracy in native and English languages – date of effect of Notice of Discontinuance – whether mandatory requirement to serve Notice of Discontinuance - whether originating application still on foot – whether Notice of Discontinuance to be set aside
PRACTICE AND PROCEDURE – Extension of time in which to file a judicial review application – factors – where very substantial delay of more than four years and nine months – observations on effect of very substantial delay – whether adequate explanation for delay – effect of applicant’s illiteracy in native and English languages – effect of application for Ministerial intervention – whether prejudice – whether proposed grounds of review reasonably arguable
MIGRATION – Judicial review – decision of the Refugee Review Tribunal – application for an extension of time to file judicial review application –– citizen of Afghanistan of Tajik ethnicity – whether Refugee Review Tribunal constructively failed to consider whether applicant faced a real risk of significant harm as a necessary and foreseeable consequence of being removed to Afghanistan – whether erroneous construction that a person would not be exposed to a risk personally if the risk was one to which other persons in the same area of a country were exposed to the same degree – whether incorrect test applied for serious harm – use of phrase “systematic serious harm” – whether proposed grounds of review reasonably arguable – whether material jurisdictional error
INDUSTRIAL LAW — retail industry - failure to comply with compliance notice – application for default judgment against company operating adult retail store trading as La La Land and its sole director – where Respondents have not entered an appearance nor participated in proceedings despite numerous opportunities – default judgment as to contraventions of the Fair Work Act 2009 (Cth) – declarations made – remaining forms of relief sought to be subject of further programming.
INDUSTRIAL LAW – review of a decision of Registrar – hearing de novo – small claims – underpayment claim – employment period covers three days – whether engaged as a full-time employee or casual employee – evidence indicates casual employee – underpayment not demonstrated – application dismissed
MIGRATION LAW – where the applicant made a second application for extension of time in respect of a visa refusal decision – where such application was an abuse of the process of the Court – where application was made some 2.75 years out of time – application dismissed.
MIGRATION – extension of time application – dismissal of interlocutory application where applicant in default – non-attendance at hearing of extension of time application.
MIGRATION – Administrative Appeals Tribunal – Protection visa (subclass 785) – where the grounds of judicial review are not supported by particulars – whether the Tribunal decision was unreasonable – no merit – application dismissed.
MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal – whether the Tribunal failed to inform the applicant of the material covered by a certificate issued under s 375A of the Migration Act 1958 (Cth) – whether the Tribunal failed to give the applicant a document to which it was entitled under s 362A of the Migration Act – whether the Tribunal misunderstood Australian law – whether the Tribunal misconstrued the legal requirements under reg 2.86(2A) of the Migration Regulations 1994 (Cth) – jurisdictional error established – writs issued.
MIGRATION – Administrative Appeals Tribunal - Safe Haven Enterprise Visa (class XE) (subclass 790) – whether the Authority was required to exercise the power in s 473DC -whether the Authority assessed the applicant’s risk of harm – whether the Authority’s finding was unreasonable – no merit – application dismissed.
MIGRATION – protection visa (subclass 866) – visa refused – where first notification of a decision of a delegate of the (then) Minister for Immigration and Border Protection was invalid – where application for review to the (then) Administrative Appeals Tribunal not made within 28 days of the date of notification of the delegate’s decision – where first Tribunal dismissed the matter for want of jurisdiction – where second notice of the delegate’s decision given following BMY18 v Minister for Home Affairs [2019] FCAFC 189 – where second notification sent to incorrect email address – where applicant made a second application for review by the Tribunal more than 28 days after second notification where Tribunal found it had no jurisdiction to review the matter – judicial review – extension of time – applications for judicial review must be made by applicant within 35 days of the date of the Tribunal’s decision – where applicant made application for judicial review almost 3 years and 3 months after time elapsed – applicant in immigration detention – applicant given notice of involuntary removal from Australia – application for urgent injunctive relief to restrain removal of applicant from Australia – whether there is a serious question to be tried – whether balance of convenience favours the grant of relief – injunctive relief granted
MIGRATION – application for judicial review – student visa – failure to appear at scheduled hearing – whether refusal to grant adjournment was reasonable – whether medical evidence insufficient – whether Tribunal acted unreasonably in refusing to reinstate the applicant’s review application – whether failure to consider relevant matters – application dismissed.
MIGRATION LAW – Whether the Tribunal conducted a proper hearing – whether the Tribunal erred in its findings – no jurisdictional error established – application dismissed.
BANKRUPTCY – Review of Registrar decision dismissing application to set aside Bankruptcy Notice – where applicant alleges existence of counter-claim/set-off for purposes of s 40(1)(g) of Bankruptcy Act
INDUSTRIAL LAW – Fair Work – where the first respondent admitted contraventions of ss 716(5) and 712(3) of the Fair Work Act 2009 (Cth) – where the second respondent admitted he was involved, within the meaning of s 550 of the Fair Work Act, with those contraventions – determination of the appropriate penalty in respect of the contraventions.
MIGRATION – Protection (Class XA) (Subclass 866) visa application for review of Registrar’s decision – whether adequate explanation for delay - whether to exercise discretion to extend time – no reasonable prospects of successfully prosecuting application - application dismissed
MIGRATION – Protection visa – Where the Authority did not make an error as to its treatment of “new information” under ss. 473DC and 473DD of the Migration Act 1958 – Where the Authority did not misinterpret the terms “real chance” and “real risk” as provided under the Act – Application dismissed
MIGRATION – Protection visa application – application for an extension of time – whether leave should be granted to amend application for review – whether Tribunal’s reliance on inconsistencies in interpreted evidence across two days of hearing when making adverse credit findings amounted to jurisdictional error – failure to afford procedural fairness as required by s 425 Migration Act – jurisdictional error established – ground 1 of amended application for review upheld
MIGRATION – Whether factual error present in findings of Tribunal – if so whether error material – whether Tribunal failed to put dispositive issues to applicant
MIGRATION – application for judicial review – student visa –whether self-represented applicant was denied procedural fairness – whether failure to warn of privilege against self-incrimination – whether questions asked by the Tribunal exposed applicant to self-incrimination – whether to extend privilege against self-incrimination to a civil and administrative review proceeding – erroneous interpretation of Regulations – application dismissed
MIGRATION – application for judicial review – protection visa – whether interpretation deficiencies constituted reviewable error – onus of proof – application dismissed
MIGRATION – Regional Employer nomination visa – decision of the Administrative Appeals Tribunal – where no approved nomination – whether the Tribunal failed to consider information – whether the applicant was given sufficient time to respond – no jurisdictional error established – application dismissed
MIGRATION – Judicial Review – Where Tribunal had before it information containing allegations against applicant – Where Tribunal failed to consider such information – Where Tribunal failed to put the allegations to the applicant – Whether such failure breaches statutory procedural fairness and natural justice requirements – Error established – Materiality – Where it is unknown what the applicant’s response to the allegations would be – Utility – not futile to grant relief
MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – where applicant failed to provide evidence of genuine access to funds – no jurisdictional error established – application dismissed.
INDUSTRIAL LAW – Application for civil penalty –admitted contraventions –failure to cleave to compliance notice and provide pay slips under Fair Work Act 2009 (Cth) – penalty hearing – appropriate penalty.
INTELLECTUAL PROPERTY - Costs – applications by applicants and by non-parties for costs in relation to applications the applicants made for freezing and ancillary disclosure orders.
MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal (as it was) – whether the Tribunal failed to perform the statutory task required of it – whether the Tribunal failed to comply with s 360 of the Migration Act 1958 (Cth) – application dismissed
MIGRATION – Partner (Temporary) (Class UK) (Subclass 820) visa – review of a decision of the Administrative Appeals Tribunal – whether the Tribunal properly considered all of the circumstances of the parties’ relationship, including all the matters set out in r 1.15A(3) of the Migration Regulations 1994 (Cth) – no jurisdictional error established – application dismissed
MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal failed to consider the situation into the reasonably foreseeable future – whether the Tribunal erred in failing to apply the “what if I’m wrong” test – whether the Tribunal erred in assessing complementary protection – whether the Tribunal failed to consider the applicant’s claims or evidence – allegation of bias – application dismissed
MIGRATION – Protection (Class XS) (Subclass 866) Visa – application for extension of time under s 477(2) of the Migration Act 1958 (Cth) - application for judicial review – application for interlocutory injunction prohibiting applicant’s removal from Australia – delay substantial – no serious question to be tried - application dismissed.
MIGRATION – judicial review – student visa – cancellation under s 116(1)(b) of the Act on the basis that the applicant had not complied with a condition of the visa in relation to enrolment in registered course – no jurisdictional error disclosed
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.
MIGRATION – judicial review of Administrative Appeals Tribunal decision – dismissal for non-appearance – costs ordered
MIGRATION – Employer Nomination Scheme (Subclass 186) visa – decision of Administrative Appeals Tribunal – where Tribunal dismissed application when applicants failed to attend a hearing – where primary applicant’s sponsor withdrew nomination – applicants’ judicial review application summarily dismissed by Registrar – application for review of Registrar’s decision filed out of time – application for extension of time to review Registrar’s decision – whether there is an adequate explanation for the delay – whether the application for judicial review has reasonable prospects of success – whether the application for judicial review is futile – extension of time application refused
MIGRATION – employer nomination visa – nomination refused – application dismissed for failure to appear-application for reinstatement – applicant not longer wishes to pursue reinstatement –reinstatement dismissed with further order as to fixed costs
MIGRATION – Application for review of a Registrar’s decision to summarily dismiss an Application and order that the Applicant pay the First Respondent’s costs – Substantive Application has no reasonable prospects of success – order for costs
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 significant delay – whether there was an arguable case of jurisdictional error – extension of time application refused with costs
MIGRATION – Application for review of a Registrar’s decision – review Application filed out of time – Registrar’s decision to summarily dismiss Application and the Applicant to pay the Minister’s costs – no reasons given for delay in applying for review or reasons why such a review is sought – whether an extension of time should be granted for review of the Registrar’s decision – extension of time denied – substantive Application has no reasonable prospects of success – order for costs
MIGRATION – Judicial review application – decision of Administrative Appeals Tribunal affirming decision to refuse subclass 457 (Temporary Work (Skilled)) visa – where sponsor’s visa nomination application refused – whether nominee had standing to challenge decision relating to nominator’s application for approval as a standard business sponsor – whether remittal futile – application dismissed – costs ordered
BANKRUPTCY – section 139ZQ notice -statutory requirements made out – charge registered- sale of property - judgment in the sum of the debt under s139ZQ
CONSUMER LAW – where the applicant trustee sought delivery up to him of possession of a Range Rover motor vehicle – where injunctions ordered to maintain the status quo pending the hearing of competing claims – where orders made accordingly.
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