Judgments

MIGRATION – Whether Immigration Assessment Authority erred by failing to have regard to additional information – whether factual findings made without evidence – challenges to factual findings. 

MIGRATION - Application for judicial review – Student (Subclass 500) visa – Non-appearance by applicant - Application dismissed pursuant to rr 5.08(c), 5.10(a), 22.04(1)(a)(i) of the Rules. 

MIGRATION – application for review of registrar’s decision – registrar dismissed reinstatement of judicial review application – whether in interests of administration of justice to set aside registrar’s decision – hearing de novo of reinstatement application – no reasonable prospects of success – review application dismissed.

 MIGRATION – protection (subclass 866) visa – application seeking constitutional writ of Tribunal decision to affirm Ministers decision – no jurisdictional error – application dismissed.  

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – applicant absent from Court hearing – dismissal for non-appearance. 

MIGRATION – Protection (Class XA) visa - Application for judicial review – Whether Tribunal failed to consider each integer of the claims - Whether correct legal test applied - Whether Tribunal decision legally unreasonable – Tribunal decision not legally unreasonable - No material jurisdictional error identified - Application dismissed.

MIGRATION – Protection (Class XA) visa - Application for judicial review – Whether Tribunal failed to consider each integer of the claims - Whether correct legal test applied - Whether Tribunal decision legally unreasonable – Tribunal decision not legally unreasonable - No material jurisdictional error identified - Application dismissed.

MIGRATION – application for Protection (Class XA) (Subclass 866) visa – Administrative Appeals Tribunal not satisfied that applicant is a person to whom Australia owes protection obligations as outlined in s 36(a) or (aa) –delegate’s decision affirmed – whether Tribunal’s decision was affected by jurisdictional error –no jurisdictional error found – application dismissed. 

MIGRATION – application for Protection (Class XA) (Subclass 866) visa – Administrative Appeals Tribunal not satisfied that applicant is a person to whom Australia owes protection obligations as outlined in s 36(a) or (aa) –delegate’s decision affirmed – whether Tribunal made a jurisdictional error in applying s 423A – no jurisdictional error established – application dismissed. 

MIGRATION – judicial review – extension of time application – whether satisfactory explanation for delay of 9 days in filing application – merits of underlying application – extension of time refused  MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa on basis that applicant did not provide current evidence about whether applicant had criminal history in country of nationality – whether exercise of power by Tribunal to request current evidence was legally unreasonable – whether Tribunal denied applicant procedural fairness. 

HUMAN RIGHTS - Disability discrimination – whether in terminating an employee’s employment the employer unlawfully discriminated against employee because of a disability the employer imputed to the employee – whether in terminating the employee’s employment to whom the employer imputed a disability the employer failed to make reasonable adjustments for the employee – unlawful discrimination not established. 

INDUSTRIAL LAW – where the second respondent was unco-operative throughout the proceeding – where it was important that all employers appreciate and understand that they are required to comply with provisions of industrial relations legislation – where no contrition was shown for non-compliance with a Compliance Notice – orders for the payment of a pecuniary penalty made accordingly.

MIGRATION – Administrative Appeals Tribunal - student visa – applicant not having a certificate of enrolment – Tribunal refusing application for adjournment – applicant having had ample time to obtain a certificate of enrolment. 

MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa –whether Authority erred in declining to exercise power under s 473DC to invite applicant to give new information at interview – whether error of fact by Authority involved jurisdictional error – application dismissed. 

MIGRATION – application for reinstatement – where judicial review application dismissed following non-appearance by applicant at hearing – whether applicant provided satisfactory explanation for failure to appear at hearing - whether judicial review application has reasonable prospects of success – application dismissed. 

MIGRATION - protection visa – application to review decision of Administrative Appeals Tribunal – whether failure to consider evidence including country information – weight given to country information – whether Tribunal had duty to inquire - whether Tribunal biased – whether decision legally unreasonable – whether procedurally unfair – presence of extra Tribunal Member as observer - application dismissed. 

BANKRUPTCY – application for the sale of property – vesting of property – co-ownership – indemnity costs – orders made consistent with the trustee’s obligations under s 30 of the Bankruptcy Act 1966 (Cth).   

MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal did not consider relevant considerations – whether the Tribunal’s decision was affected by error of law – whether the Tribunal’s decision was legally unreasonable.

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – whether a claim was made or clearly emerged to the effect that the applicant faced risk of harm on account of his religion – whether such a claim was considered by the Tribunal – writs issued. 

MIGRATION – Application for judicial review – Two decision - Protection (Class XA) (subclass 866) visa - Bridging visa – Whether Tribunal had jurisdiction to entertain the review because the application was out of time - Whether the notification of outcome of decision was deemed to have been received – Whether application for visa was finally determined – Whether applicant entitled to General Bridging Visa - No jurisdictional error – Application dismissed.

MIGRATION - Student (Class TU) (Subclass 500) visa – Application for judicial review – Whether Tribunal considered all evidence and claims – Denial of natural justice - No jurisdictional error – Application dismissed. 

MIGRATION - judicial review – protection visa - where Tribunal confirmed its decision to dismiss the application before it given the non-appearance by the Applicant – HELD no error established by the Tribunal – application dismissed.

MIGRATION – judicial review – student visa – where visa cancelled because Applicant was not enrolled in a registered course of study – whether Tribunal erred by affirming decision of a delegate of the Minister to cancel the visa – HELD no error by the Tribunal – application dismissed. 

MIGRATION – Judicial Review – protection visa – review of ex tempore decision of the Tribunal – complementary protection – whether Tribunal misapplied s 5J(6) of the Migration Act 1958 (Cth) – whether new issues arose before the Tribunal on review – whether Tribunal failed to consider distinct integers of the claim – active and intellectual engagement – adequacy of reasons – legal unreasonableness – no jurisdictional error – application dismissed.

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal misconstrued the definition of ‘significant harm’ in s 36(2A) of the Migration Act 1958 (Cth) – whether the Tribunal failed to investigate the applicant’s claims – whether the Tribunal complied with its procedural fairness obligations – whether the Tribunal failed to consider evidence that was before it – no jurisdictional error established – application dismissed. 

MIGRATION – application for judicial review of delegate’s decision – jurisdiction of Federal Circuit and Family Court in respect of primary decisions – no jurisdiction – application dismissed. 

INDUSTRIAL LAW – COSTS – where respondents filed a strike-out application in respect of the applicant’s pleading – where the respondents filed a Notice of Discontinuance of the strike-out application the day before the hearing date for that application – where the respondents must have appreciated that substantial costs would have been incurred by the applicant in resisting the application – where the respondents must have appreciated that valuable court time had been set aside for the hearing of the application - where there was no sworn evidence before the Court as to why the application had been discontinued – whether the conduct of the respondents was contrary to the purpose of the practice and procedure provisions of the Federal Circuit and Family Court of Australia Act 2021 – where conduct of the respondents found to be unreasonable under the provisions of s. 570(2)(b) of the Fair Work Act 2009 – respondents ordered to pay the applicant’s costs of and incidental to the application on a party/party basis.

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – application for an extension of time – where the delay was not significant – where the explanation for the delay was unsatisfactory – where the merits of the substantive application were not strong – whether the applicant was properly notified of the delegate’s decision – application for extension of time dismissed. 

MIGRATION – application for judicial review – Student (Temporary) (Class TU) (Subclass 500) visa – where Tribunal affirmed decision not to grant applicant the visa as the applicant did not satisfy cl 500.217 of sch 2 of the Migration Regulations 1994 (Cth) – where applicant did not meet Public Interest Criterion 4020 – whether Tribunal failed to give weight to certain evidence – whether Tribunal denied the applicant procedural fairness – found it not to be the role of the Tribunal to make enquiries or obtain evidence – where information was put to the applicant in accordance with s 359AA of the Migration Act 1958 (Cth) – whether the Tribunal was required to explain the criteria of compelling or compassionate circumstances – found no jurisdictional error on behalf of the Tribunal – application dismissed.

MIGRATION - Whether the applicant genuinely intended to stay in Australia temporarily, as required by cl 500.212 of the Migration Regulations 1994 (Cth) - the Tribunal considered the applicant’s circumstances holistically to determine whether the applicant satisfied the genuine temporary entrant criterion

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 – Student (Temporary) (Class TU) (Subclass 500) visa – where Tribunal found no evidence before it that the applicant was enrolled in a course of study and concluded that cl 500.211 of sch 2 of the Migration Regulations 1994 (Cth) was not met – where Registrar summarily dismissed the applicant’s application for judicial review – where review of Registrar’s decision filed 20 days out of time –whether the Tribunal incorrectly included a semi-colon in the applicant’s email address and therefore its correspondence was not sent in accordance with the requirements of the Migration Act 1958 (Cth) – found grounds of substantive application not reasonably arguable – application dismissed.

MIGRATION – employer sponsored visa – applications for extension of time to seek judicial review of decisions of the Administrative Appeals Tribunal – where the employer sponsor was registered at the time of the Tribunal application but deregistered before decision – whether deregistration was a proper basis for the Tribunal to find it had no jurisdiction – where the proposed employer sponsor is now reinstated – whether reinstatement retrospectively invokes jurisdiction – whether applicants can establish arguable case – futility – extension of time refused - applications dismissed

HUMAN RIGHTS – COSTS – whether costs should be awarded following an unsuccessful application for leave pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) – where costs usually follow the event – where the Court has broad discretion pursuant to s 214 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – where actual costs particularised in line with sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – applicant ordered to pay the respondent’s costs and disbursements in a fixed sum as sought. 

MIGRATION – costs – application for costs of the proceeding to total over $10,000 made without evidence or notice – scale costs ultimately sought and ordered.

HUMAN RIGHTS – Disability discrimination – whether leave should be granted to bring the application to Court, pursuant to s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth) – whether there was any reasonably arguable disability discrimination towards the applicant by the respondent – leave pursuant to s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth) is refused – The application is dismissed.

MIGRATION – extension of time application – application filed 98 days out of time – Student (Temporary) (Class TU) (Subclass 500) visa – where Tribunal set aside and substituted decision of the first respondent with a decision not to cancel the applicant’s visa – where the decision of the Tribunal was in the applicant’s favour – where the department then refused to grant a further student visa as the applicant did not comply the provisions of cl 1222 of sch 1 of the Migration Regulations (1994) – where the applicant failed to apply for a visa within 28 days of the expiry of the initial visa – where the applicant does not assert any jurisdictional error in the Tribunal’s decision - found the Tribunal was not obliged, and had no duty, to advise the applicant about the steps following its decision, the provisions of cl 1222 of sch 1 of the Regulations, nor her visa options – application dismissed.

MIGRATION – application for judicial review – Safe Haven Enterprise (Subclass 790) visa – where Immigration Assessment Authority affirmed the decision of the first respondent not to grant the applicant the Visa – 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 review of a 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 – Regional Employer Nomination (Permanent) (Class RN) visa – where Registrar summarily dismissed applicant’s application for judicial review – found grounds of substantive application had no reasonable prospects of success – application dismissed. 

MIGRATION – application for judicial review – Student (Subclass 500) visa – where Administrative Appeals Tribunal affirmed decision of the first respondent to cancel the visa under s 116(1)(g) of the Migration Act 1958 (Cth)  – where applicant had been convicted of an offence in breach of reg 2.43(1)(oa) of the Migration Regulations 1994 (Cth) – where applicant’s application for interlocutory injunction to prevent his removal from Australia was dismissed – where applicant currently offshore – grounds unparticularised – where certain grounds raised by applicant seek impermissible merits review – oral submissions raised by applicant – whether the Tribunal failed to consider certain information and claims – whether the Tribunal failed to accord the applicant procedural fairness – found no jurisdictional error – application dismissed.

MIGRATION – extension of time application – applicant filed 152 days out of time – Protection (Subclass 866) visa – where Administrative Appeals Tribunal affirmed the decision of the first respondent that applicant is not a person in respect of whom Australia has protection obligations  – found delay lengthy – found an inability to obtain legal advice or representation did not, of itself, provide a sufficient explanation for the delay – absence of satisfactory explanation for lengthy delay – whether the Tribunal denied the applicant procedural fairness – found no failure of Tribunal to accord procedural fairness – found grounds of substantive application not reasonably arguable – found it not in the interests of the administration of justice that there be an extension of time – application dismissed. 

MIGRATION – application for an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal – considerations – whether there is an arguable basis for setting aside the decision 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 there was probative country information before the Authority to make its finding – found no jurisdictional error on behalf of the Authority – application dismissed.

MIGRATION – application for judicial review – Student (Temporary) (Class TU) Subclass 500 visa – where Administrative Appeals Tribunal affirmed decision not to grant the applicant the visa as the applicant did not satisfy cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) – whether the Tribunal denied the applicant procedural fairness – found Tribunal complied with its procedural fairness obligations under div 5 of the Act – whether the Tribunal erred by making a finding that was illogical or irrational – found the Tribunal’s findings were neither unreasonable nor illogical – found no jurisdictional error – application dismissed. 

MIGRATION – review of Tribunal decision to refuse grant of Student Visa – applicant found not to satisfy criteria in cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) – whether Tribunal erred by denying him an opportunity to present his case – whether Tribunal erred by failing to make further enquiries about medical evidence when Tribunal not persuaded it showed the applicant was unfit to study – no attendant jurisdictional error – application dismissed. 

MIGRATION – application for protection visa refused by delegate of the Minister – claim to fear of persecution due to practising Catholic participating in underground churches in China – family affiliation with church leadership – whether the Tribunal relied on ‘adverse country information’ – whether independent country information was not relevant to applicant’s circumstances – whether the applicant would be pressured to join a State-sanctioned church – would pressure to join a State-sanctioned church amount to persecution for the purposes of a protection visa – judicial review – application dismissed. 

 MIGRATION – Protection (Class XA) (subclass 866) – judicial review of a decision of the Administrative Appeals Tribunal – failure to inquire – denial of procedural fairness – failure to consider – unreasonableness – failure to conduct a review – no jurisdictional error established – application dismissed. 

JUDICIAL REVIEW – direction that all correspondence to the Court from the applicant be addressed to the Court’s Registry and not sent to the Chambers of the presiding judge – applicant provided with the Federal Circuit and Family Court of Australia Guide to Communicating with the Courts – applicant’s communications with Chambers inappropriate – appropriate to make such an order.

FAIR WORK – compliance notice issued under s 716 of the Fair Work Act 2009 (Cth) (the Act) – admission of contravention of s 716(5) of the Act – imposition of civil penalty.

FAIR WORK – respondent operator of valet car parking service – failure to comply with compliance notice – where respondent admitted contravention of s 716(5) of the Fair Work Act 2009 (Cth) (FW Act) – declaration made – respondent to pay compensation pursuant to s 545 of the FW Act – pecuniary penalty imposed.

BANKRUPTCY – application for review of sequestration order made by Registrar – whether preconditions for making sequestration order are satisfied – whether there is sufficient cause why a sequestration order ought not be made – debt to creditor paid by review applicant following hearing - application for review allowed and sequestration order set aside – costs to be determined.