Judgments

FAIR WORK – dismissal in alleged contravention of ss.340, 351 and 352 of the Fair Work Act 2009 (Cth) – where applicant was underperforming, intermittently took personal leave for undiagnosed illness, complained about a directive to perform work in the office and was summarily dismissed – where adverse action and exercise of workplace rights established – consideration of evidence as to the actuating reasons for the dismissal – HELD that the first respondent contravened s.340 of the Act and the second respondent was involved within the meaning of s.550.

UNDERPAYMENT AND BREACH OF CONTRACT – dismissal without notice in alleged breach of contract and contravention of ss.44 and 117(2) – where serious misconduct not apt – finding of contractual breach, contravention and involvement within meaning of s.550 of the Act.

INDUSTRIAL LAW – general protections – whether the applicant had a workplace right – whether the applicant exercised a workplace right – whether adverse actions was taken because the applicant exercised a workplace right – whether the exercise of workplace rights by the Applicant was a substantial and operative reason for dismissal – whether the respondent failed to discharge the reverse onus in s 361 of the Fair Work Act (Cth) – reverse onus engaged – declarations made. 

MIGRATION – Judicial review – Safe Haven Enterprise (Class XE) (subclass 970) visa – Whether findings by the Immigration Assessment Authority were legally unreasonable, irrational or illogical – Whether the Immigration Assessment Authority erred when it did not get, or consider getting, new information pursuant to s 473DC of the Migration Act 1958 (Cth) concerning the applicant’s claims – No jurisdictional error established – Application dismissed.

MIGRATION – Judicial review – Protection (Class XA) visa – Whether the Tribunal failed to take further steps to notify the applicant of the hearing date before the Tribunal once it was aware the applicant’s migration agent was no longer registered as a migration agent – Whether the applicant’s visa application was invalid by reason of fraud allegedly perpetrated by the applicant’s migration agent in including claims in the protection visa application without the applicant’s knowledge or instructions – Whether the Tribunal’s processes were stultified by reason of fraud allegedly perpetrated by the applicant’s migration agent in allegedly failing to notify the applicant as to the hearing date or that the applicant could apply for reinstatement after the dismissal of the proceedings – no fraud established by the applicant – Application dismissed.

MIGRATION – decision of Administrative Appeals Tribunal – where applicant applied out of time for Tribunal review – where applicant has provided multiple email addresses to the Tribunal – whether the applicant was taken to have been notified of the delegate’s decision under s 494B(5) of the Migration Act 1958 (Cth) – meaning of “provided to the Minister” for the purposes of receiving documents – whether a contact address may be provided for multiple purposes – application dismissed.

MIGRATION –-Interlocutory Application for extension of time to apply for judicial review – Refusal to grant waiver of ‘no further stay’ condition on Student Guardian (Class TU) (Subclass 590) visa – Short delay -No jurisdictional error identified – No reasonable prospects of success -Application for extension of time dismissed. 

BANKRUPTCY – creditor’s petition application – consideration of validity of bankruptcy notice – whether filing confirmation and default judgment are a final judgment – satisfied with formal proofs required – matter referred to a registrar for hearing of creditor’s petition.  

PRACTICE AND PROCEDURE – application for separate question to be heard pursuant to r 22.01 of the Rules – allowed – separate question answered. 

BANKRUPTCY – application for an extension of time to review a sequestration order made by a registrar – no substantive merit in grounds of opposition to creditor’s petition – extension of time application dismissed – application for annulment of respondents’ bankruptcies pursuant to s 153B of the Bankruptcy Act – consideration of principles and claims – res judicata – issue estoppel – Anshun estoppel – abuse of process – not satisfied appropriate to look behind judgment – service of bankruptcy notice disputed – discretion to annul bankruptcies does not arise – annulment application dismissed.  

PRACTICE AND PROCEDURE – application for leave to re-open application – consideration of exhibits after reservation of judgment – discretion exercised – found necessary in interests of justice to re-open application. 

MIGRATION - Student (Temporary) (Subclass 573) visa - Application for judicial review –– Writ of mandamus not sought by applicant –Visa cancelled by delegate as applicant not enrolled in a registered course of study – Applicant conceded not enrolled in a registered course of study - Whether Tribunal unreasonable in denying adjournment request to obtain medical evidence – No adjournment request actually made - Where alleged fraud by agent – No evidence of agent retained by applicant - Medical evidence not produced by applicant – No jurisdictional error by Tribunal - Application dismissed.

MIGRATION– application for review of a Registrar’s decision to summarily dismiss judicial review application – Student visa application – where the Applicant did not have a current certificate of enrolment – consent for the application to be heard on the papers – no jurisdictional error established by the applicant – where it is a binary decision whether the Applicant was enrolled in a registered course of study – no reasonable prospects of success established.

MIGRATION– application for judicial review of a decision of the Administrative Appeals Tribunal to not grant partner visa – matter had been remitted with the direction that the Applicant met the schedule 3 criteria – whether sponsor and applicant were in a genuine relationship at the time of the decision.

MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – Authority found there was real risk applicant would suffer significant harm if required to return to Nasiriyah, but it was reasonable for applicant to relocate to Wasit governorate – whether Authority erred in finding it was reasonable for applicant to relocate to Wasit governorate – whether no evidence to support finding that applicant could stay with relative in Wasit governorate who would vouch for him – whether probative basis for finding – application dismissed.

MIGRATION – Judicial review – Application to review decision of the Administrative Appeals Tribunal (‘Tribunal’) – whether Tribunal erred by engaging in irrational and illogical reasoning in finding that the Applicant was not homosexual – whether the Tribunal failed to have regard to the evidence before it – HELD application for judicial review dismissed.

MIGRATION – costs – judicial review application dismissed – application for costs – fixed costs order made – applicant to pay the first respondent’s costs.

MIGRATION – Ex tempore – Protection (subclass 866) visa –judicial review – application for the review of a Registrar's decision – applicant was properly invited to hearing and failed to attend – failed to apply for reinstatement – no real or genuine dispute that might reasonably be resolved in an applicant’s favour – 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 erred in making adverse credibility findings – no jurisdictional error established – application dismissed.

MIGRATION – costs – application for above scale costs – where a further hearing date and additional submissions were required due to the late articulation of the applicant’s case – fixed costs order made.

MIGRATION – Subclass 500 (Student) visa – not open to conduct merits review of Tribunal decision – application dismissed.

MIGRATION LAW – JUDICIAL REVIEW – Where the Applicant is a citizen of Sri Lanka and of Tamil ethnicity – Whether the Immigration Assessment Authority failed to consider claims or integers of his claims – Whether the Authority failed to consider the claim that on return to Sri Lanka Tamil detainees face discriminatory mistreatment by prison officials – Whether the Authority failed to consider a claim of the Applicant’s particular vulnerability because of his past mistreatment by Sri Lankan authorities and that any display of that vulnerability on his return to Sri Lanka may attract further attention and suspicion – Whether the Authority mischaracterised the Applicant’s lawyers representations as “mere submissions” when it ought to have treated those representations as “corroborative evidence” of the Applicant’s vulnerability – Application dismissed.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – Tribunal satisfied there was evidence applicant gave bogus document to Department in relation to visa application – Tribunal reasonably suspected bank statement showing funds in account was counterfeit – whether error by Tribunal in finding that it “reasonably suspects” document was counterfeit – Tribunal relied on investigative report – whether Tribunal’s reliance on investigative report was unreasonable – Tribunal accepted bank statement was issued by bank – whether bank statement issued by bank could be counterfeit – application dismissed.  

MIGRATION – JUDICIAL REVIEW – Whether the Applicant gave the Minister evidence of financial capacity under cl. 500.214(3) of Sch. 2 to the Migration Regulations 1994 – Where the Tribunal was to apply the laws governing the exercise of its powers in force at the time of the Tribunal’s decision – Whether as a matter of jurisdictional fact the Tribunal required in writing the Applicant to give to it evidence of financial capacity under cl. 500.214(3) – Held Tribunal’s decision that the Applicant did not give it evidence of financial capacity which met the requirements in the legislative instrument was reasonable in the legal sense – Application dismissed. 

MIGRATION – JUDICIAL REVIEW – Extension of time – Where the delay is long – Where there is no satisfactory explanation for the delay – Where the proposed ground does not have reasonable prospects of success – An extension of time not needed in the interests of justice – Application for extension of time dismissed.

PRACTICE AND PROCEDURE – application for leave to file amended statement of claim – paragraph deals with multiple matters rather than separate matters – part of pleading does not state all material facts on which applicant relies – whether pleading omits element of cause of action for restitution – whether applicant should be granted leave to file revised amended statement of claim.

PRACTICE AND PROCEDURE – application to set aside subpoena – whether documents sought in each paragraph of subpoena have legitimate forensic purpose – whether subpoena involves attempt to obtain discovery. 

INDUSTRIAL LAW – PENALTY – two contraventions of the Fair Work Act 1975 (Cth) – breach of section 45 of the Act by failing to pay the applicant under clause 11.5 of the Hospitality Industry (General) Award 2020 – breach of section 536 of the Act by failing to provide a payslip to the applicant with the required information within the required time frame – where the applicant contends that pecuniary penalties are necessary – finding that the breaches occurred due to honest and reasonable oversights – no pecuniary penalty imposed. 

MIGRATION – judicial review – Student (Temporary) (Class TU) visa – genuine temporary entrant criterion in cl 500.212 of the Migration Regulations 1994 (Cth) – whether the Tribunal failed to comply with the statutory obligations under s 359AA of the Migration Act 1958 (Cth) – whether the Tribunal took an adversarial and not an inquisitorial role in the proceedings – whether the Tribunal failed to consider the applicants’ substantial claims – whether the Tribunal was illogical and irrational and misinterpreted and misapplied cl 500.212 of the Regulations – no jurisdictional error established – application dismissed.

MIGRATION – Judicial Review – protection visa – credibility assessment – whether Tribunal failed to consider evidence – whether Tribunal failed to properly inquire – whether Tribunal’s approach discloses bias or apprehended bias – whether Tribunal Member’s reliance on personal experience or knowledge discloses error – no jurisdictional error established – application dismissed.

MIGRATION – Judicial Review – protection visa – claimed fear of harm in Egypt from State and non-State actors on account of interfaith relationship between Christian man and Muslim woman – adverse credibility findings – legal unreasonableness – no jurisdictional error established – application dismissed.

MIGRATION – judicial review – Student (Temporary) (Class TU) (Subclass 500) visa – genuine temporary entrant criterion in cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) – whether the Administrative Review Tribunal in applying the factors in Direction No. 108 failed to consider or overlooked the applicant’s reasons and circumstances – no jurisdictional error established – application dismissed.

MIGRATION – judicial review application – decision of Administrative Appeals Tribunal refusing to grant a protection visa – whether Tribunal made irrational findings - whether Tribunal failed to give proper consideration to the risk of harm to women in India - no jurisdictional error established – application dismissed.     

MIGRATION – judicial review application – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal complied with s 425 of the Act – whether Tribunal erred in making a decision on the review without taking any further action to enable applicant to appear – whether Tribunal was legally unreasonable – s 426A of the Act - no jurisdictional error established – application dismissed.  

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) – whether the IAA’s decision was legally unreasonable – contended issues with interpretation – whether the IAA’s decision was otherwise affected by legally relevant error – application dismissed. 

MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa - Application for judicial review – Whether applicant given meaningful opportunity to present evidence – Whether failure to provide procedural fairness – Application dismissed. 

MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa - Application for judicial review - Whether Tribunal failed to substantively engage with application for adjournment – Whether procedural fairness denied – Whether applicants were put on notice of the determinative issue on review - Application dismissed. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether Tribunal erred in finding applicant not a temporary entrant under cl 500.212(a) – whether Tribunal erred in its findings regarding the extent of the applicant's personal ties to his home country – application of Direction 69 - no jurisdictional error established – application dismissed.  

MIGRATION – judicial review application – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal complied with s 425 of the Act – whether Tribunal erred in making a decision on the review without taking any further action to enable applicant to appear – whether Tribunal was legally unreasonable – s 426A of the Act - no jurisdictional error established – application dismissed.  

MIGRATION – judicial review application – decision of Administrative Appeals Tribunal refusing to grant a protection visa – whether Tribunal made irrational findings - whether Tribunal failed to give proper consideration to the risk of harm to women in India - no jurisdictional error established – application dismissed.     

MIGRATION – Safe Haven Enterprise (Subclass 790) visa - Application for judicial review – Whether the Immigration Assessment Authority failed to consider new information– Consideration of physical evidence provided at hearing before the delegate – Whether assessment of applicant’s claims had been adversely impacted by findings of credibility – Unreasonable or illogical reasoning – Application dismissed. 

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

MIGRATION – judicial review – decision of Administrative Review Tribunal refusing to grant protection visa – applicant requested hearing on papers – whether error by Tribunal in acceding to applicant’s request to make decision without holding hearing - application dismissed.

PRACTICE AND PROCEDURE – Re-opening of liability hearing – principles concerning re-opening – factors for consideration – whether admission of document into was irregular – where alleged fraud, misrepresentation and perjury concerning matters in the document – where alleged incompetence of lawyers – whether prejudice to other party – case management considerations – whether associated jurisdiction to be exercised in relation to new or revised claims.

PRACTICE AND PROCEDURE – Discovery of documents – principles in relation to discovery in this Court – where failure of application to re-open means that single document of which discovery sought is irrelevant.

INDUSTRIAL LAW – Interlocutory mandatory injunction – Serious question to be tried – Balance of convenience – Application dismissed. 

MIGRATION – judicial review – decision of Administrative Review Tribunal cancelling student visa – whether Tribunal erred in exercising discretionary power to cancel visa – applicant did not comply with condition of visa – whether Tribunal failed to consider substantially articulated claim – whether reasoning process of Tribunal was not intelligible – application dismissed.

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) – whether the Tribunal misconstrued or misapplied the concept of “significant harm” – whether the Tribunal’s decision was affected by bias – whether the Tribunal’s decision was affected by any other legally relevant error – application dismissed. 

MIGRATION – judicial review – decision of the Administrative Appeals Tribunal to affirm decision to refuse student visa – whether the primary applicant meets genuine temporary entrant criterion – where Tribunal carefully engaged with visa criterion – no error identified – application dismissed with costs.

PRACTICE AND PROCEDURE – where the applicant failed to appear at a listing before the Court relating to her 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 judicial review of a decision of the Administrative Appeals Tribunal – where the Tribunal overlooked claims and evidence submitted by the applicant regarding the situation with his intended wife being an incentive for return to his home country – where the Tribunal instead considered that the applicant had given evidence that he was “not in a relationship” – where the Tribunal then relied upon a finding that the applicant’s ties home would not provide sufficient incentive for return – writs issued.

MIGRATION – application for judicial review – 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(2)(a) or (aa) – delegate’s decision to refuse the grant of the visa affirmed – whether Tribunal’s decision was affected by jurisdictional error – no jurisdictional error established – application dismissed. 

MIGRATION – apacplication for judicial review – 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(2)(a) or (aa) – delegate’s decision to refuse the grant of the visa affirmed – whether Tribunal’s decision was affected by jurisdictional error – no jurisdictional error established – application dismissed. 

MIGRATION – ex-tempore – judicial review – application for the review of a Registrar's decision – Student (Temporary) (Class TU) (Subclass 500) visa – applicant not enrolled in a course of study – no real or genuine dispute that resolvable in an applicant’s favour – no reasonable prospect of success – application dismissed. 

MIGRATION –Ex-tempore – judicial review – application for the review of a Registrar's decision – Employer Nomination (Class EN) (Subclass 186) visa –no approved nomination – no real or genuine dispute that resolvable in an applicant’s favour – application dismissed.