Judgments

MIGRATION LAW – whether the Tribunal had taken into account irrelevant considerations when arriving at its decision – whether the Tribunal had properly failed to identify and consider a relevant claim – no jurisdictional error established – 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 – Student (Temporary) (Class TU) (Subclass 500) visa – where Registrar summarily dismissed the applicant’s application for judicial review – where grounds unparticularised – 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 – Student (Temporary (Class TU) (Subclass 500) visa – where Registrar summarily dismissed the applicant’s application for judicial review – found grounds of substantive application had no reasonable prospects of success – application dismissed. 

FAMILY LAW – contravention application – contraventions conceded – reasonable excuse 

INTELLECTUAL PROPERTY – Copyright – whether the applicant is the owner of copyright in floor plans contained in brochures the applicant published – whether the respondent provided to a draftsperson a plan (copy plan) that combined parts of two separate floor plans contained in the brochures and by doing so authorised the draftsperson to design and prepare plans on the basis of the copy plan and therefore infringed the applicant’s copyright in the floor plans – not satisfied respondent provided the copy plan to the draftsperson or was otherwise aware the draftsperson used the copy plan to design plans for the constructions of a house – claim for infringement of copyright dismissed.  

PRACTICE & PROCEDURE – Application for dismissal of second and third proceedings where the applicant seeks to raise matters that could have been or once had been raised in the first proceeding – whether abuse of process – relevant considerations – second and third proceedings dismissed 

PRACTICE & PROCEDURE – Application to reinstate proceeding summarily dismissed for non-appearance – relevant considerations.  

PRACTICE AND PROCEDURE – Jurisdiction – Whether the Applicant had standing to seek a declaration of a contravention of the whistleblowers protections in Part 9.4AAA of the Corporations Act 2001 – Whether the court has original jurisdiction under s. 131 of the Federal Circuit and Family Court of Australia Act 2021 to decide claims under the whistleblower protections of Part 9.4AAA of the Corporations Act– Alternatively, whether the court has jurisdiction as to the whistleblower protection claims under s. 134 of the FCFCOA Act because those matters are associated with matters in which the jurisdiction of the court is invoked – Held the applicant did not have standing to bring an application for a declaration – Held that the court did not have original jurisdiction as to the whistleblower protection claims – Held because the court did not have original jurisdiction the court did not have jurisdiction to grant a declaration under s. 141 of the FCFCOA Act – Held that the court had associated jurisdiction to grant other remedies as to the whistleblower protection claims  

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant applicant student visa – whether Tribunal required to exercise its power to obtain visa refusal decision concerning applicant’s wife – whether Tribunal made inconsistent findings – whether Tribunal made findings concerning courses, laws and policies in Nepal without evidence – whether Tribunal relied on personal or specialised knowledge to make findings – whether Tribunal made unwarranted assumption - application dismissed 

MIGRATION – Application for judicial review – Protection (Class XA) (Subclass 866) visa – where the Administrative Review Tribunal affirmed decision not to grant the Applicant the visa as the Applicant did not satisfy a person whom Australia has protection obligations of s36(2)(b) or s36(2)(c) of the Migration Act 1958 (Cth) – whether the Tribunal erred by making an adverse inference with respect to credibility – found no credibility on behalf of the Tribunal – Application dismissed 

MIGRATION – student (class TU) (subclass 500) visa – where delegate cancelled visa under s 116(1)(b) of the Migration Act 1958 (Cth) for non-compliance with visa condition – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – whether Tribunal misapplied policy guidance when affirming delegate’s decision – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed

MIGRATION – temporary graduate (post-work) (subclass 485) visa – where former Administrative Appeals Tribunal affirmed delegate’s decision that applicant did not satisfy cl 485.212 of the Regulations – where visa application was not accompanied by evidence that applicant sat an English language test within 3 years before the day on which the visa application was made – application for review of Registrar’s decision under s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – where Registrar summarily dismissed judicial review application pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – no reasonable prospects of success – application dismissed

MIGRATION – partner (temporary) (subclass 820) and partner (residence) (subclass 801) visa – decision of the (then) Administrative Appeals Tribunal – no appearance by or on behalf of the applicant – oral application to dismiss pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – application dismissed with costs

MIGRATION – Student visa cancellation – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to consider relevant information or otherwise failed to afford that information proper weight – whether the Tribunal considered irrelevant information – whether the Tribunal erred by apportioning weight to the factors considered – no jurisdictional error – 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 – 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.

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.  

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

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.

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. 

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 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 – 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 – 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 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 – 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 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 – review of a decision of the Administrative Appeals Tribunal – student visa – 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 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 – 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 – 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”

 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 – 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 – 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 

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

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.

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. 

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. 

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. 

MIGRATION– Where the Authority made findings contrary to the evidence before it – where no reasonable decision maker could have made such findings – where a different decision could have been arrived at had the Authority not erred – jurisdictional error established – application granted.

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 – 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 – 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 - 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 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 – 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