Judgments

MIGRATION – judicial review – extension of time application – lengthy delay – whether satisfactory explanation for delay – merits of underlying application – extension of time refused.

MIGRATION – judicial review – decision of Administrative Review Tribunal that it did not have jurisdiction because applicant failed to pay prescribed fee within prescribed period – whether error by Tribunal.

MIGRATION – Ex Tempore – Protection (Class XA) (Subclass 866) visa – Administrative Appeals Tribunal – Two grounds of judicial review decision of Administrative Appeals Tribunal refusing to grant protection visa – Whether Tribunal erred in finding the applicant did not meet the criteria under ss 36(2)(a) and 36(2)(aa) –  No jurisdictional error established – Application dismissed. 

MIGRATION – protection visa – application for review of a summary dismissal decision made by a Registrar – whether the then Administrative Appeals Tribunal erred in finding that it had no jurisdiction – consideration of whether notification of decision to refuse the applicant’s visa satisfied the requirements of s.66(2)(d)(ii) – notification deemed to be valid – whether denial of procedural fairness because not invited to a hearing – no jurisdictional error established, application is dismissed with costs. 

MIGRATION – Ex Tempore –  Administrative Appeals Tribunal – Protection (Class XA) visa  – Five grounds of judicial review – Whether the Tribunal failed to consider vital integers of the applicant's case – Whether the tribunal did not comply with its procedural fairness guidelines – Whether the Tribunal relied on incorrect information – Whether the Tribunal failed to ask relevant questions – whether the applicant can appeal to the Federal Court – Grounds of judicial review have no merit – Application dismissed with costs.

MIGRATION – protection visa – application for review of a summary dismissal decision made by a registrar – whether the then Administrative Appeals Tribunal erred in finding that it had no jurisdiction – consideration of whether notification of decision to refuse the applicant’s visa satisfied the requirements of s.66(2)(d)(ii) – notification deemed to be valid – application dismissed with costs. 

MIGRATION – Safe Haven Enterprise Visa – Immigration Assessment Authority – one ground of judicial review – unparticularised ground – sole ground of review has no merit – application dismissed with costs. 

FAIR WORK – multiple contraventions of civil remedy provisions of the Fair Work Act 2009 (Cth) – respondents did not participate in proceedings – default judgment – determination of pecuniary penalties, interest and costs following default judgment – declarations and orders made.

FAIR WORK – Application for injunctive and other relief related to a Fair Work Act claim – Injunction preserving status quo sought – Injunctive relief sought too broad - Suppression order sought – Test for suppression order not satisfied – Relief preserving legal rights sought – Inappropriate to make orders - Discovery order sought – Documents sought too vague – Urgent directions and hearing sought - Circumstances do not warrant expedited hearing - Application for relief dismissed. 

PRACTICE AND PROCEDURE – where the applicant failed to appear at a listing before the Court relating to his judicial review application – application dismissed pursuant to r 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). 

PRACTICE AND PROCEDURE – Application for default judgment pursuant to r 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (“2025 Rules”) – Where the applicant filed its application before the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (“2021 Rules”) were in force – Where the 2025 Rules are found to be the applicable legislation – Where the 2021 Rules are substantially the same as the 2025 Rules with regard to default judgment.

FAIR WORK – Contraventions of the Fair Work Act 2009 (Cth) (“FW Act”) – Where the respondent has failed to pay contractual wages contrary to s 323(1) of the FW Act – Where the respondent has failed to pay annual leave on termination of employment contrary to s 90 and subsequently s 44 of the FW Act – Where the respondent has failed to issue a notice of termination or payment in lieu of that notice, contrary to s 117 and subsequently s 44 of the FW Act – Accessorial liability – Declaration considered appropriate where employer company in liquidation and respondent appears to have embarked on a Phoenix-style venture with a new company – Public interest to alert current and potential employees to risk associated with such employment. 

MIGRATION – Applicant applied twice to Tribunal in relation to delegate’s visa decision – Tribunal had no jurisdiction to review repeat application – application for extension in which to bring application for review – not in interests of justice to extend time – new evidence not admissible.

MIGRATION – Employer Nomination (Subclass 186) visa - Review of registrar’s decision to summarily dismiss application for judicial review – Review application filed 20 days out of time – First applicant not subject to approved nomination – No material jurisdictional error identified - Application for review dismissed.  

MIGRATION – application for judicial review of Administrative Appeals Tribunal decision – whether Tribunal erred in finding that it had no jurisdiction – consideration of whether notification of decision to refuse the applicant’s visa satisfied the requirements of s.66(2)(d)(ii) – notification deemed to be invalid –application is allowed with costs.  

MIGRATION – Tribunal found Vietnamese protection visa applicant’s fears of persecution neither existed nor were well founded – Tribunal did respond to applicant’s arguments and did not make an error of the sort identified in Appellant S395/2002 – application dismissed.

MIGRATION – Visitor (Class FA) visa – decision of the Administrative Appeals Tribunal – genuine temporary entrant criterion – whether the Tribunal failed to lawfully apply cl 600.211 of the Migration Regulations 1994 (Cth) – whether the Tribunal failed to give proper weight to the applicant’s evidence – whether the Tribunal made an irrational or illogical finding – whether the Tribunal failed to consider all relevant matters or evidence – whether the Tribunal considered irrelevant matters or evidence – whether the applicant was denied a fair hearing – whether the Tribunal was biased or acted in bad faith – whether the Tribunal lacked jurisdiction – whether the Tribunal unreasonably exercised a discretionary power – whether the Tribunal’s decision is affected by jurisdictional error – no jurisdictional error established – application dismissed. 

MIGRATION – child visa – decision of the then Administrative Appeals Tribunal – cl 802.214 of the Migration Regulations 1994 (Cth) – whether the Tribunal asked itself the wrong question or applied the wrong test – whether the Tribunal failed to address a claim – meaning of “been undertaking a full-time course of study” – reliance upon a different decision of the Tribunal – no jurisdictional error established – application dismissed.

INTELLECTUAL PROPERTY – practice and procedure – application for leave to withdraw admissions – application dismissed.

INTELLECTUAL PROPERTY – evidence – objection to the admissibility of recording of events that occurred at gyms – whether the recordings record private conversations within the meaning of the Surveillance Devices Act 2007 (NSW) – objection overruled. 

INTELLECTUAL PROPERTY – copyright in the performance in public of musical and associated literary works (public performance rights) – where musical works were being performed at premises during fitness sessions conducted by five corporate respondents (S1 respondents) and three other companies (S1 companies) – whether the applicant was the owner or exclusive licensee of the public performance rights in musical works the applicant was able to prove were publicly performed during the fitness sessions - applicant so proves – whether by each of the S1 respondents and S1 companies performing those musical works they each infringed the applicant’s exclusive rights to perform in public those musical works – infringement established - whether the fifth respondent as director and CEO of the businesses carried out by the S1 respondents and S1 companies authorised each of the S1 respondents and S1 companies to infringe the applicant’s exclusive rights to perform in public those musical works – fifth respondent authorised those infringements – declarations made, injunctions granted, and damages and additional damages awarded.

BANKRUPTCY – unauthorised occupation – property of bankrupt held in their capacity as executor – trustee’s right of indemnity  bankrupt as executor – application for vacant possession and sale of property – property registered in name of bankrupt in their capacity as executor – where bankrupt and the respondents are beneficiaries to deceased estate - where subject property has vested in trustee - where respondents in unauthorised occupation of the property –– where use of property incurs debts and deterioration of value - whether bankrupt’s right of indemnity against deceased estate vests as property in the trustee – where sale of property is necessary – bankruptcy trustee entitled to vacant possession and power of sale – partial distribution of proceeds of sale. 

INDUSTRIAL LAW – Costs – application for costs under s 570 of the Fair Work Act 2009 (Cth) – whether the Applicant institute the proceeding vexatiously or without reasonable cause – was there an unreasonable act or omission no discretion engaged – no costs ordered - application dismissed. 

 MIGRATION – application for judicial review – decision of the Administrative Appeals Tribunal affirming decision not to grant a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa – whether the Tribunal findings were unreasonable – whether the Tribunal failed to considered relevant evidence– disagreement with the Tribunal’s fact-finding – no jurisdictional error established – application dismissed. 

MIGRATION – Judicial Review – protection visa – credibility assessment – whether Tribunal failed to assess the second applicant’s evidence properly and independently of the first applicant’s evidence – whether Tribunal’s finding that the second applicant’s evidence was false was illogical – whether Tribunal failed to consider whether the second applicant met complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) – alleged failure to afford procedural fairness – no jurisdictional error established – 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 – application for judicial review – decision of the Administrative Appeals Tribunal affirming decision
not to grant Partner (Temporary) (Class UK) visa – whether Tribunal failed to afford Applicant procedural fairness – whether Tribunal’s decision was predetermined – no jurisdictional error established – application dismissed.

MIGRATION – Apprehension of bias due to prejudgment must be firmly established – Tribunal did not prejudge by taking into account the incorrect answers in a visa application in coming to a credibility finding – application dismissed. 

MIGRATION – application for judicial review – decision of the Administrative Appeals Tribunal affirming decision
not to grant Protection (subclass 866) visa – whether Tribunal failed to consider evidence – whether Tribunal made illogical or irrational findings about the evidence of witnesses – whether Tribunal made credibility findings unsupported by evidence – no jurisdictional error established – application dismissed.

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) – where the IAA found that it was precluded from considering new information by s 473DD of the Migration Act 1958 (Cth) – where the IAA’s reasoning demonstrates some misunderstanding or confusion regarding what had been claimed in the new information – whether the IAA relevantly erred in its application of s 473DD – whether the IAA failed to consider a claim regarding the applicant’s mental health – writs issued.

MIGRATION – Tribunal hearing during COVID by telephone – applicant does not appear – applicant notified by email nominating telephone number applicant had provided to Department – on particular facts of case not unreasonable – decision in DNK17 v Minister does not dictate result. 

MIGRATION – application for an extension of time – decision made by the Administrative Appeals Tribunal – protection visa – where the Tribunal decided it did not have jurisdiction – where the appeal to the Tribunal was filed out of time – where the applicant faced mental and financial distress – underlying application for judicial review has no prospect of succeeding – extension of time refused.

MIGRATION – application for judicial review – decision made by the Administrative Appeals Tribunal – protection visa – where there were multiple errors in interpretation at the Tribunal’s hearing – where the misinterpretations cannot be linked to particular findings – misinterpretations caused the hearing to be procedurally unfair – misinterpretations led to unreasonable findings – jurisdictional error established. 

MIGRATION – application for judicial review – decision made by the Administrative Appeals Tribunal – protection visa – decision related to BBX21 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 2124 – where errors in interpretation at the Tribunal’s hearing led to an unreasonable decision – jurisdictional error established.    

MIGRATION – JUDICIAL REVIEW – Where the Applicant sought review of a Registrar’s decision to give summary judgment – Where the Applicant sought an adjournment of the review hearing – Where the Applicant did not establish why or how he was unable to attend the hearing – Adjournment refused – Review application dismissed on the Applicant’s non-appearance. 

MIGRATION – protection visa – judicial review of decision of Immigration Assessment Authority to refuse visa – where the applicant claims involvement in political activity such that he is person of interest to authorities – where Authority found applicant’s political involvement low-level – whether Authority failed to exercise discretion to consider new information – whether Authority properly engaged with the applicant’s claims – no jurisdictional error established.

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal’s decision was unreasonable or illogical – application dismissed.

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

MIGRATION – Judicial review – Protection (Class XA) (Subclass 866) visa – Whether the Administrative Appeals Tribunal failed to comply with s 425(1) of the Migration Act 1958 (Cth) in failing to inform the first applicant of a dispositive issue in relation to country information – Whether the Tribunal failed to consider a claim or an integer of a claim being that the first applicant would be targeted by the Nepal Communist Party because of both his claim based on political opinion and his claim to be a member of a social group who was perceived as being wealthy due to his time overseas – Whether the Tribunal misused country information as to the treatment of returnees – No jurisdictional error disclosed – Application dismissed.

MIGRATION – application for review of a Registrar’s decision – hearing de novo of first respondent’s application for summary judgment – where applicants applied for judicial review of decision of Administrative Appeals Tribunal – Temporary Graduate (Post-Study Work) (subclass 485) visa – where Registrar summarily dismissed the applicants’ application for judicial review – whether Tribunal erred by conducting the hearing via telephone – found Tribunal conducted the hearing pursuant to the obligations in s 366(1)(a) of the Migration Act 1958 (Cth) – whether the Tribunal afforded the applicants procedural fairness – found the applicants were afforded procedural fairness – found grounds of review have no reasonable prospect of success – application dismissed. 

MIGRATION – application for judicial review – Student (Temporary) (Class TU) (Subclass 500) visa – where Administrative Appeals Tribunal affirmed decision not to grant the applicants the visa – where the Tribunal found that the first applicant provided false or misleading information and therefore did not satisfy public interest criterion  4020 – whether the Tribunal denied the applicants natural justice – found that the Tribunal afforded the applicants natural justice pursuant to s 422B of the Migration Act 1958 (Cth) –  where the Tribunal decision is affected by bias – found that a fair-minded and appropriately informed lay observer would not reasonably apprehend bias on the part of the Tribunal – where the applicants raised an allegation of fraud on behalf of an immigration agent – found fraud not established – application dismissed. 

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – whether the applicant was denied procedural fairness – whether the Tribunal failed to take into account relevant considerations or evidence – whether the Tribunal’s decision was otherwise affected by legally relevant error – application dismissed.

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal’s refusal of an adjournment was legally unreasonable – futility – application dismissed.

INDUSTRIAL LAW – FAIR WORK – application for default judgment pursuant to r 5.11(c) of the Federal Circuit Court and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) – applicant seeking declarations of contraventions of the first respondent of ss 44, 45, 323, 340 and 536 of the Fair Work Act 2009 (Cth) – contraventions of civil remedy provisions – second and third respondents alleged to be involved in particular contraventions of the first respondent – default judgment entered – declarations of contraventions and orders for respondents to pay unpaid monies with interest, payment of loss of income, general damages – matter listed for penalty hearing. 

INDUSTRIAL LAW – INTERLOCUTORY APPLICATION – applicant seeking orders on default of first respondent – first respondent failed to defend proceedings with due diligence – appropriate to make orders sought.

FAIR WORK – general protection –  adverse action – workplace right relating to complaint about employment -adverse action – applicant’s employment terminated for cause following inquiry – substantive and operative reason for adverse action – interlocutory application for interim reinstatement – serious issue to be tried – balance of convenience – allegations of misconduct from both parties – where the Applicant asserts she gets along well with staff – where the Respondents assert irreparable damage and mistrust between the parties – matters to be considered. 

FAIR WORK – assessment of pecuniary penalties following respondents’ admission of liability – declaration of contravention of civil remedy provisions of the Fair Work Act 2009 (Cth) made previously – orders made.

PRACTICE AND PROCEDURE – application for substituted service – whether it is impracticable to serve documents by hand – whether the proposed methods of service will result in the documents coming to the attention of the second respondent – orders for substituted service made.

PRACTICE AND PROCEDURE – fair work –  interlocutory application to withdraw admissions – where respondent made admissions in defence and filed amended defence withdrawing admissions – where applicant did not consent to withdrawal – arguable case that admissions were incorrect - limited prejudice to applicant to meet claims in amended defence – leave granted to withdraw admissions – interlocutory application to strike out those parts of defence withdrawing earlier admissions – application dismissed. 

MIGRATION – Whether Tribunal conflated claims, failed to carry out forward-looking test and failed to engage with claims.

PRACTICE AND PROCEDURE – where the applicant failed to appear at a listing before the Court relating to his judicial review application – application dismissed pursuant to r 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). 

PRACTICE AND PROCEDURE – where the applicant failed to appear at a listing before the Court relating to his judicial review application – application dismissed pursuant to r 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). 

MIGRATION – application for review of Registrar decision refusing reinstatement – judicial review application dismissed for non-appearance – where applicant requires an extension of time to prosecute her review – judicial review application lacking in merit – review application dismissed with costs.