Judgments

MIGRATION – Administrative Appeals Tribunal – Protection (Class XA) (subclass 866) visa – Whether the Tribunal failed to consider the personal circumstances of the applicant – Sole ground of judicial review has no merit - No jurisdictional error is made out – Application dismissed with costs.

MIGRATION – temporary protection visa – decision of the then Immigration Assessment Authority – whether the IAA misapplied the real chance test – whether country information misconstrued – jurisdictional error established – writs issued. 

MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – Protection (Class XA) (Subclass 866) visa – whether the Tribunal was biased – whether the Tribunal failed to consider the applicants’ claims – no jurisdictional error disclosed – application dismissed. 

CONSUMER LAW – interlocutory application for further and better discovery and additional discovery – whether the respondents have already provided adequate discovery in the proceeding – whether further discovery would be disproportionate to the issues remaining in contention – consideration of the Court’s overarching purpose – interlocutory application refused.  

INDUSTRIAL LAW – contravention of s 340 of the Fair Work Act 2009 (Cth) – determination of the appropriate penalty. 

MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – Protection (Class XA) (Subclass 866) visa – whether the Tribunal conducted the hearing before it fairly – allegation that the applicant’s case was not fairly conducted because the Tribunal repeatedly asked various questions and the applicant was confused – whether the Tribunal failed to ask the applicant to provide evidence in support of her claim – no jurisdictional error disclosed – application dismissed. 

MIGRATION – Safe Haven Enterprise visa – Immigration Assessment Authority – whether the Authority failed to consider an express integer of a claim for protection and ignored relevant country information – sole ground of judicial review has no merit – application dismissed with costs. 

MIGRATION – Administrative Appeals Tribunal – Subclass 187 Regional Sponsored Migration Scheme Visa – Review of a Registrar’s decision – Extension of Time – Whether the Tribunal denied the applicant procedural fairness – Whether the Tribunal fell into jurisdictional error – No jurisdictional error is made out – Application dismissed with costs. 

MIGRATION – Safe Haven Enterprise (subclass 790) visa – Application for an extension of time – Immigration Assessment Authority – Whether the Authority took an unduly narrow construction of s 473DD – Whether the Authority did not consider integers of the applicant's claims – Grounds of judicial review have no merit – Extension of time refused – Application dismissed with costs. 

MIGRATION – Protection (subclass 866) visa – Review application filed outside the prescribed period – Whether Tribunal lacked jurisdiction – Where applicant made oral submission alleging fraud by authorised recipient – Whether decision of Tribunal affected by fraud – Whether applicant afforded natural justice – Whether Applicant entitled to a hearing – No jurisdictional error – Application dismissed. 

MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) – Alleged failure to accord procedural fairness and natural justice – Sole ground of judicial review has no merit – Application dismissed with costs. 

MIGRATION – Judicial Review – absence of approved nomination – futility – no jurisdictional error established – Ministerial intervention – application dismissed.

MIGRATION – Administrative Appeals Tribunal – Employer Nomination (Permanent) (Class EN) (subclass 186) visa – Two grounds of judicial review – Whether the Tribunal's decision was unreasonable – Whether the Tribunal failed to consider relevant information – Grounds of judicial review have no merit – Remitting the matter would be futile – Application dismissed with costs.

INDUSTRIAL LAW - Application for costs pursuant to s 570(2)(b) of the Fair Work Act 2009 (Cth) – Unreasonable Defence of proceeding -Applicant unsuccessful in part of claim – Forensic decisions in course of final hearing - Hard fought litigation - Evidence of costs incurred - Causal link to conduct – Costs declined. 

MIGRATION – student visa – decision of the then Administrative Appeals Tribunal – genuine temporary entrant criterion – Direction 69 factors – whether the Tribunal failed to afford procedural fairness – whether the Tribunal failed to properly assess the applicants’ claims – whether the Tribunal’s decision was irrational or illogical – whether the Tribunal’s decision is affected by bias – no jurisdictional error established – application dismissed. 

MIGRATION – Protection (subclass 866) visa – Application for judicial review – Where Tribunal undertook search but did not inform Applicant – Whether results constituted ‘information’ relied upon by Tribunal to affirm decision – Whether procedural fairness obligation in s 424A(1) enlivened – Where Applicant not afforded procedural fairness – Jurisdictional error found – Whether error material – Decision quashed. 

TRADE MARKS – whether the applicant was entitled to sue for the infringement of trade marks owned by his daughter – whether the trade marks were descriptive terms – whether the respondent used substantially identical or deceptively similar trade marks. DEFAMATION – whether this court has jurisdiction to deal with the applicant’s defamation claim. 

INDUSTRIAL LAW – Discovery – leave to amend.

INDUSTRIAL LAW – Fair Work – Ex tempore –Application for recusal of judge – alleged apprehended bias –objective assessment by hypothetical fair-minded lay observer – no logical connection between the conduct complained of and any apprehended deviation from the course of deciding the matter on its merits – active case management – application dismissed. 

INDUSTRIAL LAW – workplace right – adverse action – whether Section 340 of the Fair Work Act is engaged – where the Applicant asserts she was dismissed as a consequence of making a complaint about another co-worker - whether Section 351 of the Fair Work Act is engaged – harassment and discrimination – where the Applicant asserts unfair treatment compared to similar workplace breaches to that of co-workers – substantive and operative reason for adverse action – reverse onus – matters to be considered. 

MIGRATION – judicial review – Protection (Class XA) (subclass 866) visa – whether the Tribunal lawfully exercised its powers under s 106(1) of the Administrative Review Tribunal Act 2024 (Cth) to make its decision on the documents without holding a hearing where it determined the matter on a different dispositive issue to that of the delegate – what is required for a valid request for the purposes of s 106(3)(b)(ii) – meaning of the phrase “it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding” – whether or not the preconditions in s 106(3) are met is a question of jurisdictional fact which is subject to judicial review by the courts – no jurisdictional error disclosed – application dismissed 

BANKRPTCY – application to review Registrar’s Decision creditor’s petition – s 40(1)(c) and s 306 of the Bankruptcy Act - Harman undertaking – application dismissed. 

MIGRATION – Application for extension of time – principles to be applied – lengthy delay – inadequate explanation for delay – impressionistic assessment of merits of claim – not in interests of the administration of justice to extend time – application refused.

MIGRATION – Application in a proceeding seeking reinstatement of judicial review application – Inadequate explanation for non-attendance at final hearing – Proposed grounds of review not reasonably arguable – Application dismissed. 

BANKRUPTCY – Application to set aside Bankruptcy Notice (“Notice”) – Where final property orders were made pursuant to s 79 of the Family Law Act 1975 (Cth) (“Family Law Act”) – Where the subject debt is the result of enforcement proceedings in the family law division of this court – Where it is alleged that the Notice had the incorrect name on it – Allegations that the Notice overstates the debt –Allegations of an abuse of process – Appropriation of funds – Where the debt is found to be overstated – Notice set aside  PRACTICE AND PROCEDURE – Interest on judgment debts – Where there is no prohibition on compounding interest (“interest on interest”) in the context of s 117B of the Family Law Act.

PRACTICE AND PROCEDURE – Suppression orders – Where it is in the interests of justice to issue a pseudonym – Where the interests of children are involved – Extant family law proceedings. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – applicant provided bank statement to prove financial support – Tribunal found bank statement was bogus document – Tribunal reasonably suspected document was counterfeit or altered by person who did not have authority to do so – whether Tribunal erred in finding document was bogus document – whether Tribunal considered whether bank statement was purposely untrue – no error by Tribunal – application dismissed.

MIGRATION – Protection visa - Application for extension of time to apply for judicial review – Application filed 878 days out of time – No credible or compelling explanation for delay - Application dismissed. 

INDUSTRIAL LAW – practice and procedure – objection to producing documents called by subpoena on the ground the documents are subject to without prejudice privilege – whether the without prejudice privilege asserted in relation to the documents is a privilege jointly held by the party seeking production and the party resisting production and for that reason must be produced – whether there would be any utility in determining whether the documents are subject to without prejudice privilege, assuming such privilege is jointly held – whether a legitimate forensic purpose has been demonstrated for the production of the documents – objection to production dismissed.

MIGRATION – application for extension of time to seek judicial review – decision of the Administrative Appeals Tribunal affirming decision to refuse applicant a protection visa – where Tribunal decision the subject of an earlier judicial review application – where applicant failed to disclose the existence of the earlier judicial review application as required pursuant to s 486D(1) of the Migration Act 1958 (Cth) – where compliance with s 486D(1) is a jurisdictional pre-condition – where application for an extension of time is incompetent – application dismissed with costs.

MIGRATION – Only certiorari sought in defective application – nature of Court’s jurisdiction under s 476(1) of the Migration Act – Constitution s 75(v) – no jurisdiction to grant the applicant the relief he sought – certiorari alone cannot ground relief although it may be sole final relief granted – need for applicant to seek mandamus, prohibition or an injunction – not appropriate for Court to amend the application in absence of request from applicant – duties of Court to assist unrepresented applicant – amendment of an application and litigants in person – the ‘first duty’ of every court and dismissal for non-attendance – permissible to proceed to dismiss in applicant’s absence although Rules may permit later application for dismissal order to be set aside – dismissal ordered.

MIGRATION – judicial review of decision of Administrative Review Tribunal to dismiss review of delegates decision to refuse visa – application for extension of time – where applicant failed to attend Tribunal hearing – where Tribunal sent hearing invitation to applicant’s nominated email address – no adequate explanation for delay - where substantive application for review lacks merit – application for extension of time dismissed.

MIGRATION – Ex Tempore – application for the review of a Registrar's decision – judicial review – Temporary Graduate (subclass 485) visa – applicant dependent on partner whose visa had ceased – no real or genuine dispute that resolvable in an applicant’s favour – application dismissed.

INDUSTRIAL LAW – practice and procedure – objection to producing documents called by subpoena on the ground the documents are subject to without prejudice privilege – whether the without prejudice privilege asserted in relation to the documents is a privilege jointly held by the party seeking production and the party resisting production and for that reason must be produced – whether there would be any utility in determining whether the documents are subject to without prejudice privilege, assuming such privilege is jointly held – whether a legitimate forensic purpose has been demonstrated for the production of the documents – objection to production dismissed.

BANKRPTCY – application to review Registrar’s Decision creditor’s petition – s 40(1)(c) and s 306 of the Bankruptcy Act - Harman undertaking – application dismissed.   

MIGRATION – Application in a proceeding seeking reinstatement of judicial review application – Inadequate explanation for non-attendance at final hearing – Proposed grounds of review not reasonably arguable – Application dismissed. 

MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – applicant provided new information to Authority – Authority not satisfied there were exceptional circumstances to justify considering new information – whether Authority assessed new information against s 473DD(b)(ii) and considered whether information was credible personal information.

MIGRATION – judicial review – applicant included hyperlink to country information report in submission to Authority – whether applicant thereby provided entirety of report to Authority – distinction between publication date of country information report which post-dated Minister’s decision and date of country information in report which pre-dated Minister’s decision.

MIGRATION – judicial review – Authority concerned about delay between date applicant claimed to have committed serious offence of which Iranian authorities were aware and date authorities sought to arrest applicant – whether Authority’s concern based on unwarranted assumption or lacked an evident and intelligible justification. 

MIGRATION – Ex Tempore – application for the review of a Registrar's decision – judicial review – Temporary Graduate (subclass 485) visa – applicant dependent on partner whose visa had ceased – no real or genuine dispute that resolvable in an applicant’s favour – application dismissed. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – applicant provided bank statement to prove financial support – Tribunal found bank statement was bogus document – Tribunal reasonably suspected document was counterfeit or altered by person who did not have authority to do so – whether Tribunal erred in finding document was bogus document – whether Tribunal considered whether bank statement was purposely untrue – no error by Tribunal – application dismissed.

BANKRUPTCY – Application to set aside Bankruptcy Notice (“Notice”) – Where final property orders were made pursuant to s 79 of the Family Law Act 1975 (Cth) (“Family Law Act”) – Where the subject debt is the result of enforcement proceedings in the family law division of this court – Where it is alleged that the Notice had the incorrect name on it – Allegations that the Notice overstates the debt –Allegations of an abuse of process – Appropriation of funds – Where the debt is found to be overstated – Notice set aside.

PRACTICE AND PROCEDURE – Interest on judgment debts – Where there is no prohibition on compounding interest (“interest on interest”) in the context of s 117B of the Family Law Act. 

PRACTICE AND PROCEDURE – Suppression orders – Where it is in the interests of justice to issue a pseudonym – Where the interests of children are involved – Extant family law proceedings. 

MIGRATION – application for extension of time to seek judicial review – decision of the Administrative Appeals Tribunal affirming decision to refuse applicant a protection visa – where Tribunal decision the subject of an earlier judicial review application – where applicant failed to disclose the existence of the earlier judicial review application as required pursuant to s 486D(1) of the Migration Act 1958 (Cth) – where compliance with s 486D(1) is a jurisdictional pre-condition – where application for an extension of time is incompetent – application dismissed with costs. 

MIGRATION – Judicial Review – partner visa – public interest criterion 4020 (PIC 4020) – PIC 4020 waiver – whether Tribunal failed to actively and intellectually engage with representations and evidence relating to the existence of compassionate or compelling circumstances – whether Tribunal mischaracterised evidence – whether Tribunal decision was legally unreasonable – no jurisdictional error disclosed – application dismissed.

MIGRATION – Administrative Appeals Tribunal – protection Visa – review of a Registrar’s decision – extension of time – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal fell into jurisdictional error – no jurisdictional error is made out – impermissible merits review – application dismissed.

MIGRATION - Student (Temporary) (class TU) Student (subclass 500) visa– refusal for failure to satisfy Tribunal applicant was enrolled full-time in a registered course of study– no real or genuine dispute that resolvable in an applicant’s favour– application for review of Registrar’s summary dismissal– no reasonably arguable error–  application dismissed. 

MIGRATION – Protection (Subclass 866) visa – Administrative Appeals Tribunal – failure to appear pursuant to s 426A – dismissed pursuant to s 425A – appeal for lack of notice to authorised recipient – proper form to elect someone as an authorised recipient pursuant to s 441G – application dismissed with costs. 

MIGRATION – Whether the Immigration Assessment Authority took into account the possibility that events claimed by the applicant occurred - whether the Authority had a separate duty to investigate the screenshots of a social media post. 

MIGRATION- judicial review – decision of Administrative Review Tribunal refusing to grant student visa – whether Tribunal gave proper “weightage” - whether applicant satisfied genuine temporary entrant criterion pursuant to cl 500.212 – whether Tribunal failed to properly apply Direction 69 – whether Tribunal failed to accord procedural fairness - no jurisdictional error established – application dismissed.

MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa -  Authority rejected claims which delegate accepted – whether failure of Authority to exercise power in s 473DC to invite applicant to give new information before rejecting claims accepted by delegate was legally unreasonable – whether Authority erred in finding that it could not consider new information pursuant to s 473DD - application dismissed 

MIGRATION – application for judicial review – Student (Temporary) (Class TU) (Subclass 500) visa – Administrative Review Tribunal not satisfied that applicant met cl 500.212(a) of the Regulations – whether decision was partly erroneous – legally unreasonable finding made by Tribunal – found error to be material – jurisdictional error established – application allowed. 

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal failed to consider “the full integers of the Applicant’s claim” – limitations of the Court’s role in judicial review proceedings – application dismissed. 

MIGRATION – judicial review – decision of Administrative Review Tribunal refusing to grant protection visa – whether Tribunal erred by deciding the review on the basis the applicant was not entitled to a ‘Complementary Protection Visa’ - whether Tribunal erred by failing to comply with s 359A of the Act - no jurisdictional error established – application dismissed.