Judgments

FAMILY LAW – Child Support – undefended hearing – exemption from filing FDR certificate – declaration as to parentage – declaration under section 106A of the Child Support Assessment Act  

FAMILY LAW - PROPERTY SETTLEMENT - Where the wife seeks significant notional add backs to the property pool – Where such add backs are rejected - Where it is just and equitable to make an adjustment – Where a two pool approach is appropriate noting the substantial amount of superannuation held by the husband and where the husband seeks a superannuation splitting order – Where the husband has made higher financial contributions – Where the wife has been and continues to be the primary carer for the children, one of whom has special needs – Where at issue is the mix of superannuation and non-superannuation property each party is to receive - Where the children spend significant and substantial time with the husband – Contribution finding made in favour of the husband – Adjustment made in favour of the wife for future needs.

FAMILY LAW – CONTRAVENTION – Costs – Parenting – Where it was alleged the father contravened by overholding the child following periods of time spending – Where the father admitted the breaches at the commencement of Trial but maintained he had a reasonable excuse – Where after giving evidence at Trial, the father plead guilty to each count without reasonable excuse – Father to enter into a Bond – Orders for costs. 

FAMILY LAW – PROPERTY – where there is significant agreement as to the facts and the assets to be divided – whether there should be a one or two pool approach – impact of the Husband’s initial contributions – impact of the Wife having primary care of a child with special needs and an inferior income.

FAMILY LAW – PARENTING - whether the impact on the mother’s parenting capacity of nearly four year old child spending time with his father is such that the child should spend no time with his father

FAMILY LAW - PARENTING AND PROPERTY – undefended hearing –– de facto relationship 16 years- two children – mother has sole care since separation in 2021 -no binding financial agreement – purported financial agreement set aside – alternation of property interests

FAMILY LAW – parenting – family violence – sole parental responsibility – father has not seen the children since separation – where the father shows lack of insight and failure to address his behaviour – where the father poses an unacceptable risk to the children – whether or not orders should be made for no time or for supervised time – whether time should be graduated to unsupervised – whether or not orders should be made for family therapy – airport watchlist and passport orders

FAMILY LAW – SINGLE EXPERT WITNESS – application for removal – earlier valuation for third party bank – independence of single expert– duties – non-disclosure of earlier valuation – materiality – selection of single expert – remediation if non-disclosure - application disallowed

FAMILY LAW – Harman and/or implied obligation – are special circumstances required the documents in another court – whether special circumstances in this application – very late application – whether costs should be ordered – special circumstances found – applicant released from implied obligation

FAMILY LAW – PARENTING – interim application after matter not reached – stood over till final hearing date

FAMILY LAW – Parenting – two male children aged 11 and 9 – second round of parenting proceedings – where the parties consented to final orders in December 2018 – where the parties had difficulty implementing the final orders – where the parties’ communication was unproductive – where the two boys where being dragged into the conflict by both parents – where the relationship between the father and the children began to break down in part due to disclosures of physical abuse in the father’s care by the children – where the children became resistant to spending time and communicating with the father – where the children are now estranged from the father and fearful of him – where the Court considers there would be an emotional or psychological risk to the children if they were required to spend time with the father – best interests of the children.

FAMILY LAW – Parenting – Allegations of physical, sexual and financial abuse – No findings of fact sought – No risk established – Parenting capacity – Children to live with father and spend time with mother

FAMILY LAW – Final Parenting – Allegations of physical, emotional, psychological and financial abuse – Criminal convictions – Unacceptable risk – Children to live with mother and spend no time with father

FAMILY LAW – PARENTING – Assessment of risk – Where Father subject of shooting – where Father previously convicted of offences – where Mother previously convicted to driving under the influence of alcohol and drugs – where each parent has history of drug use – Where Mother has history of mental health issues – where Father has mental health vulnerabilities – Allegations of family violence – Determination of parental responsibility

MIGRATION – Protection (Class XA) (Subclass 866) visa – Application for judicial review – Fear of harm due to genital mutilation – Persecution or significant harm arising from failure to register applicant’s birth in receiving country – Fear of discrimination and persecution due to gender dysphoria of sibling – Fear of forced disclosure of protection claims to authorities of receiving country – No jurisdictional error – Application dismissed. 

MIGRATION - Protection (Class XA) (Subclass 866) visa – Application for judicial review – Fear of genital mutilation of sibling–- Claims of persecution or significant harm arising from failure to register applicant’s birth in Malaysia – Fear of discrimination and persecution due to gender dysphoria of sibling – Fear of forced disclosure of protection claims to authorities of receiving country – No jurisdictional error – Application dismissed. 

MIGRATION – Administrative Appeals Tribunal –Protection visa – Whether the Tribunal’s adverse credibility findings on critical issues amounted to jurisdictional error – sole ground of judicial review upheld –Tribunal decision quashed – matter remitted to the Tribunal 

MIGRATION – Regional Employer Nomination visa – decision of the Administrative Appeals Tribunal –application of the waiver provision in PIC 4020 – whether applicant purposely provided false and misleading information in contravention of PIC 4020(1) – compassionate or compelling circumstances – whether requirement to disclose UK spent convictions – where Tribunal failed to consider relevant evidence - jurisdictional error established – writs issued 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether applicant denied procedural fairness – whether Tribunal’s reasoning process was illogical and unreasonable - no jurisdictional error established – application dismissed.  

MIGRATION - Protection (Class XA) (Subclass 866) visa – Application for judicial review –– Gender dysphoria claims for protection - Whether material jurisdictional error by the Tribunal – Whether Tribunal considered irrelevant evidence or failed to consider any material facts – No error – Application dismissed - Related proceedings. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) was satisfied – whether applicant genuinely intended to stay temporarily in Australia – no jurisdictional error established – application dismissed. 

MIGRATION – Application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision made by the Immigration Assessment Authority (Authority) affirming decision not to grant the applicant a Safe Haven Enterprise Visa – whether the Authority failed to properly assess the applicant’s claims of harm – whether the Authority otherwise properly considered the applicant’s claims and country information that was relevant to the applicant’s claims – application dismissed.  

MIGRATION – review of a decision of the Administrative Appeals Tribunal – protection visa – exercise of the discretion to proceed pursuant to s 426A(1A)(a) of the Migration Act 1958 – application dismissed. 

MIGRATION – Safe Haven Enterprise (Class XE) (Subclass 790) visa – Whether an unreasonable failure to exercise discretion under s 473DC(1) of the Migration Act 1958 (Cth) – Whether jurisdictional error material - Authority unreasonably exercised discretion – Informational gap – Jurisdictional error - Application allowed - Writs to issue.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – Tribunal made adverse credibility finding against applicant based on inconsistencies, vagueness and hesitancy in giving evidence – application claimed post-traumatic stress disorder affected his memory – whether Tribunal erred in considering applicant’s explanation - application dismissed 

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider a claim clearly emerging on the material – membership of a particular social group – illogicality, irrationality or unreasonableness – no jurisdictional error established – application dismissed. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – finding that applicant provided bogus document – finding that applicant did not satisfy genuine temporary entrant criterion - no jurisdictional error established – application dismissed

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – Tribunal not satisfied applicant was witness of truth and rejected most of applicant’s claims concerning past harm - no point of principle - application dismissed 

MIGRATION – Application for review of a summary dismissal decision made by a Registrar – where an argument is available to the applicant that the Tribunal erroneously sent correspondence to a person believed to be the applicant’s authorised recipient – where that argument has reasonable prospects of success – KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4 – orders made by the Registrar set aside by consent – matter listed for final hearing with associated procedural orders

MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa – Whether the Authority’s assessment of new information under s 473DD of the Migration Act 1958 (Cth) is affected by jurisdictional error – Whether the Authority unreasonably failed to exercise the discretionary power under s 473DC of the Act – Whether  the Authority engaged in reasoning, and made findings, that were legally unreasonable – application allowed 

MIGRATION – Return (Residence) (Class BB) visa – Whether the Administrative Appeals Tribunal fell into jurisdictional error by failing to construe or misconstruing  cl 155.212(3A) of the Migration Regulations 1994(Cth) – Consideration of the “substantial ties” and “benefit to Australia” criteria – Application dismissed 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing student visa – whether Tribunal failed to give “genuine and realistic consideration” to applicant’s circumstances – whether Tribunal’s reasoning process was illogical and unreasonable - no jurisdictional error established – application dismissed. 

MIGRATION – Subclass 457 visa – Whether as a result of failing to adjourn the review proceeding in the absence of a response to a s 359 letter the Administrative Appeals Tribunal fell into jurisdictional error – Whether the Tribunal unreasonably failed to enquire as to why there had been no response to a s 359 letter – Application dismissed 

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal was illogical, irrational or unreasonable – whether the Tribunal failed to exercise jurisdiction – whether the Tribunal failed to put information to the applicant – no jurisdictional error established – application dismissed 

MIGRATION – Protection Visa – Administrative Appeals Tribunal – Whether the Tribunal misapprehended the applicants claims and failed to give them proper, genuine and realistic consideration – Whether the Tribunal reasoned with the applicants claims in an irrational, illogical or legally unreasonable way – Proposed grounds of judicial review have no merit – Application dismissed 

MIGRATION – application for an extension of time to seek judicial review – decision of the Administrative Appeals Tribunal of a lack of jurisdiction to hear the matter – where applicant failed to apply to the Administrative Appeals Tribunal within the prescribed timeframe – explanation for delay in lodging application for judicial review unsatisfactory – proposed grounds of review lacking in merit – not necessary in the interests of the administration of justice to extend time – application for an extension of time refused with costs

HUMAN RIGHTS – DISCRIMINATION – application by the respondent for summary dismissal – where the applicant is in default – where the applicant failed to attend a court ordered mediation and comply with orders – application for the statement of claim to be summarily dismissed or struck out – whether the statement of claim is evasive or ambiguous – orders made striking out portions of the statement of claim – orders made for the applicant to re-plead the statement of claim and for the parties to attend a mediation 

MIGRATION – Persecution – Review of Administrative Appeals Tribunal (“Tribunal”) decision – visa – protection visa – refusal.  

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider every claim and made incorrect findings of fact.   

PRACTICE AND PROCEDURE – Application for transfer of proceeding to the Federal Court of Australia – relevant considerations. 

INDUSTRIAL LAW – COSTS – Where the applicant discontinued the proceeding some months before a trial listed for a seven (7) day hearing – where the applicant failed to personally depose as to why he discontinued the proceeding – where substantial costs had been incurred by both the applicant and the respondent before the discontinuance of the proceeding – where a lawyer who provided an affidavit deposing on an information and belief basis what the applicant’s reasons for discontinuance were had failed to provide any explanation as to why the applicant had not personally deposed as to his reasons for discontinuing the proceeding – where the applicant’s lawyer had failed to depose as to why the applicant might have been unable to depose as to his reasons for discontinuing the proceeding – where no weight attached to the evidence of the applicant’s lawyer provided on an information and belief basis – where a costs order on a party/party basis was accordingly made in favour of the respondent. 

MIGRATION - application for judicial review of a decision of the (then) Immigration Assessment Authority – whether the Authority misinterpreted or misapplied s.473DD of the Migration Act 1958 (Cth) in the manner contended – whether the Authority failed to consider relevant claims or evidence – whether the Authority’s decision was attended by legal unreasonableness – jurisdictional error not established – application dismissed with costs. 

MIGRATION – application for review of decision made by Registrar to summarily dismiss judicial review application – where Tribunal found that it did not have jurisdiction to conduct review – where application for review made out of time – where no adequate explanation for delay – where there is no reasonable prospect of success of judicial review application – extension of time refused with costs

MIGRATION - Safe Haven Enterprise (Class XE) (Subclass 790) visa – Application for judicial review – Whether there was a real risk or a real chance of the applicant suffering significant harm – Whether Immigration Assessment Authority afforded the applicant procedural fairness – Application dismissed

MIGRATION – judicial review – protection visa – Tribunal accepted the applicant was a member of a particular social group being “persons being pursued by loan sharks” – Tribunal found on the country information the applicant would not be denied effective protection by the police from loan sharks – issue as to whether the Tribunal ignored or failed to have regard to relevant country information as to effective protection by the police from loan sharks – no jurisdictional error – application dismissed   

HUMAN RIGHTS – DISCRIMINATION – where the applicant alleges that the first respondent discriminated against him unlawfully in the course of his employment with the second respondent, in breach of sections 9 and 18C of the Racial Discrimination Act 1975 (Cth) – where the applicant claims that the second respondent is vicariously liable for those breaches – where the applicant also claims that the second respondent has independently breached section 9 of the Act by alleged underpayment of wages to the applicant – where the applicant seeks damages, declarations and an apology – consideration of whether the alleged conduct occurred and if so whether it was in breach of section 9 – consideration of whether any conduct was made otherwise than in private pursuant to section 18C of the Act – finding that the conduct did not breach sections 9 and 18C of the Act – application dismissed. 

HUMAN RIGHTS – DISCRIMINATION – where the applicant alleges that the first respondent discriminated against him unlawfully in the course of his employment with the second respondent, in breach of sections 9 and 18C of the Racial Discrimination Act 1975 (Cth) – where the applicant claims that the second respondent is vicariously liable for those breaches – where the applicant also claims that the second respondent has independently breached section 9 of the Act by alleged underpayment of wages to the applicant – where the applicant seeks damages, declarations and an apology – consideration of whether the alleged conduct occurred and if so whether it was in breach of section 9 – consideration of whether any conduct was made otherwise than in private pursuant to section 18C of the Act – finding that the conduct did not breach sections 9 and 18C of the Act – application dismissed. 

MIGRATION – student visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or on behalf of the applicant – application dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) 

MIGRATION – Judicial review – Protection visa – Administrative Appeals Tribunal – Whether the Tribunal failed to consider claims - Whether the Tribunal erred in making a decision instead of dismissing the matter under s 426A – application dismissed.   

MIGRATION – judicial review – partner visa – applicant alleged Tribunal was in error because it looked at whether the applicant was a member of the family unit of the primary person as at the time of the Tribunal’s decision whereas it should have considered that question as at the time of the application for the visa – no jurisdictional error disclosed as Tribunal needed to be satisfied of the relevant criteria at the time of the Tribunal decision on the material then before the Tribunal – application dismissed. 

PRACTICE AND PROCEDURE – Fair Work – where earlier finding of contravention of s 340(1) of the Fair Work Act 2009 (Cth) – where finding of liability reflected failure of the respondent employer to discharge onus under s 361(1) of the Fair Work Act- where proceeding listed separately for hearing on relief – where respondent sought to rely on evidence of “decision-maker” to make submissions about compensation and penalty – where “decision-maker” had not given evidence at the liability hearing – where applicant objects to parts of affidavit – whether respondent is estopped from relying on parts of evidence of “decision-maker” because they invite the Court to trespass on findings of fact or law made in the liability judgment – objections upheld in part