Judgments

PRACTICE AND PROCEDURE – Application in a proceeding – application for extension of time to file originating application – factors for consideration – length of delay – explanation for delay – where multiple lodgment forms filed – whether affidavit required to be filed with application – whether address for service requirements met – whether medical evidence sufficient to explain delay – where self-represented – prejudice – whether respondent wound up - whether underlying claim has sufficient arguable merit. 

PRACTICE AND PROCEDURE – Application in a proceeding – application for adjournment of extension of time application for filing of originating application – adjournment – factors for consideration. 

PRACTICE AND PROCEDURE – Application in a proceeding – leave to appear at hearing of application in a proceeding by telephone – consideration of post-COVID pandemic practice of the Court – consideration of overarching civil practice and procedure provisions. 

PRACTICE AND PROCEDURE – Application in a proceeding – application for leave to appear by a foreign lawyer – legislative provisions concerning appearance in federal courts – application hypothetical. 

LAWYERS – Application for leave to appear by a foreign lawyer – legislative provisions concerning appearance in federal courts – application hypothetical. 

WORDS AND PHRASES – “must not make”.

MIGRATION – Protection (Class XA) – judicial review of a decision of the Administrative Appeals Tribunal – failure to consider – unreasonableness – illogicality – no jurisdictional error established – 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 of Sch 2 of the Migration Regulations 1994 (Cth) – whether Tribunal erred by failing to provide genuine consideration to Direction 69 – found no jurisdictional error on behalf of the Tribunal – Application dismissed. 

MIGRATION – review of a decision of the Administrative Appeals Tribunal – protection visa – no jurisdictional error established – application dismissed.  

MIGRATION – Student (Temporary) (Class TU) (subclass 500) visa – judicial review of a decision of the Administrative Appeals Tribunal – unreasonableness – failure to consider – no jurisdictional error established – application dismissed

MIGRATION – application for student visa – whether applicant a genuine applicant for entry and stay as a student – whether applicant intends genuinely to stay in Australia temporarily  – whether Tribunal had regard to applicant’s offer of employment in Indonesia – whether genuine letter of support – application dismissed

MIGRATION - Class XA visa application – whether a testimony should be considered in isolation or within context – whether the Administrative Appeals Tribunal (“AAT”) failed to consider country information – whether the AAT denied the applicant a fair opportunity to address adverse material – whether the AAT failed to acknowledge a real risk of harm – whether the AAT failed to consider the totality of claims raised  - whether the AAT failed to adhere to a Ministerial Direction – whether the AAT failed to adequately evaluate the risk of significant harm - proposed grounds of judicial review have no merit – proposed claims invite an impermissible merits review - application dismissed 

MIGRATION - application for student visa – mandatory requirement to show current enrolment in course of study – applicant failed to provide evidence of Confirmation of Enrolment - criteria for grant of the visa not met – Tribunal compelled to affirm decision under review - no attendant jurisdictional error – application dismissed

MIGRATION –Application to review a decision of a Judicial Registrar – where Judicial Registrar summarily dismissed the Applicant’s application for judicial review – where application for judicial review does not have reasonable prospects of success – application to extend time to file the application to review the decision of the Registrar refused and 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 of Sch 2 of the Migration Regulations 1994 (Cth) – whether Tribunal erred by failing to provide genuine consideration to Direction 69 – found no jurisdictional error on behalf of the Tribunal – Application dismissed. 

MIGRATION – Migration Act 1958 (Cth) – Application for Regional Employer Nomination (Class RN) (Subclass 187) visa – Administrative Appeals Tribunal not satisfied that the applicant had a valid nomination as required by cl.187.233(3) and affirmed Delegate’s decision to refuse the application for the Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa – application for judicial review – no meaningful ground of jurisdictional error asserted – no jurisdictional error established – application for judicial review dismissed.

MIGRATION – Judicial review application – decision of Immigration Assessment Authority – Shia Arab from Iraq – claims of fear of harm from ex-wife’s family in Iraq – whether failure to address a claim – whether error in relation to new information finding – whether failure to perform procedural duty in relation to consideration of new information – whether jurisdictional error 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal required to put concerns about applicant’s evidence to applicant and provide opportunity to comment or respond – whether Tribunal’s refusal to give applicant more time to provide material to Tribunal was unreasonable – no jurisdictional error established – application dismissed

PRACTICE AND PROCEDURE – costs – whether second applicant who was minor at time proceeding commenced should be ordered to pay respondent’s costs 

MIGRATION – Dismissal for non-appearance – where parties were notified of the matter being relisted for a different time on the same date – where applicants emailed the Court on the morning of the hearing stating they could not attend - application dismissed 

MIGRATION – Whether Tribunal failed to consider evidence or gave insufficient weight to evidence – whether Tribunal had duty to inquire – choice of country information   

INTELLECTUAL PROPERTY – copyright – applicant and respondent agreed to collaborate in the production of a book with the applicant agreeing to provide photographs and the respondent to compose the text – respondent published and sold a book containing photographs taken by the applicant without the applicant’s prior approval – whether the respondent has the applicant’s licence to reproduce the applicant’s photographs – the respondent did not have applicant’s licence – by publishing and selling the book the respondent infringed the applicant’s copyright in the photographs – the respondent also infringed the applicant’s copyright in photographs he had taken by the respondent uploading them to his business’s Facebook Page and to a webpage he operates – injunction, delivery up, and compensatory and additional damages awarded. 

FAIR WORK – application pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) (Act) for extension of time within which to make a general protections court application – whether fair and appropriate to grant the extension of time – extension granted. 

HUMAN RIGHTS – Discrimination and harassment – Australian Human Rights Commission claim limited to disability discrimination – claims of disability, race and sex discrimination and sexual harassment in proposed application.

PRACTICE AND PROCEDURE – Extension of time application – originating application filed out of time – factors for consideration – length of delay – explanation for delay – where multiple lodgment forms filed – whether affidavit required to be filed with application – whether address for service requirements met – whether medical evidence sufficient to explain delay prejudice – whether underlying claim has sufficient arguable merit. 

PRACTICE AND PROCEDURE – Application for summary dismissal– factors for consideration – whether reasonable prospects of success. WORDS AND PHRASES – “must not make”  

INTELLECTUAL PROPERTY – Costs – where order made referring matter to mediation – where respondent was ordered to provide documents seven days before the scheduled date of the mediation – where respondent failed to comply with order but mediation nevertheless proceeded – whether in those circumstances the respondent should be ordered to pay the applicant’s costs of and in relation to the mediation – application dismissed because the applicant has not demonstrated that the respondent’s default caused the applicant to incur costs in relation to the mediation he would otherwise not have incurred – order made that parties pay their own costs of and in relation to the mediation.

FAIR WORK – claim for the payment of monies – whether contravention of s 45 of the Fair Work Act 2009 (Cth) - whether failure to pay amounts payable pursuant to Social, Community, Home Care and Disability Services Industry Award 2010 - enquiry as to the extent of the applicants’ entitlements – no mention of Award in the contracts of employment – enquiry into correct classifications of the applicants’ roles under the Award 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether the Tribunal considered relevant materials and issues – whether Tribunal was required to consider claims of persecution of Tao practitioners - no jurisdictional error established – application dismissed. 

MIGRATION – student (class TU) (subclass 500) visa – where visa application refused by delegate of the Minister – review of decision of the former Administrative Appeals Tribunal affirming delegate’s decision – where Tribunal found first applicant was not a genuine temporary entrant – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed 

MIGRATION – application for judicial review – decision of the Immigration Assessment Authority to refuse to grant the applicant a safe haven enterprise (subclass 790) visa – where the applicant claims that the Authority unreasonably refused to exercise its discretion to interview the applicant pursuant to section 473DB of the Migration Act 1958 (Cth)  – consideration of the reasonableness of the Authority’s decision to not invite the applicant to an interview – no jurisdictional error established – application dismissed with costs. 

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

INTELLECTUAL PROPERTY – copyright – applicant and respondent agreed to collaborate in the production of a book with the applicant agreeing to provide photographs and the respondent to compose the text – respondent published and sold a book containing photographs taken by the applicant without the applicant’s prior approval – whether the respondent has the applicant’s licence to reproduce the applicant’s photographs – the respondent did not have applicant’s licence – by publishing and selling the book the respondent infringed the applicant’s copyright in the photographs – the respondent also infringed the applicant’s copyright in photographs he had taken by the respondent uploading them to his business’s Facebook Page and to a webpage he operates – injunction, delivery up, and compensatory and additional damages awarded. 

INDUSTRIAL LAW – where the applicant claims that the respondent took adverse action against him in breach of sections 340(1) and 343(1) of the Fair Work Act 2009 (Cth) in commencing a Code of Conduct Investigation which ultimately led to the termination of his employment – where the applicant claims that the respondent took adverse action against him by discriminating against him as compared to other employees under section 351 of the Act –  consideration of whether the applicant was at a disadvantage in participating in the Code of Conduct Investigation – consideration of whether the respondent terminated the applicant’s employment for, or for reasons which included him exercising a workplace right – consideration of whether the respondent discriminated against the applicant within the meaning of section 351 – finding that there was no breach of sections 340(1), 343(1) or 351 in the circumstances – application dismissed. 

MIGRATION – judicial review application – decision of the Administrative Appeals Tribunal refusing to grant student visa – whether applicant satisfied clause 500.212 – no jurisdictional error established – application dismissed.  

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – no point of principle – application dismissed 

MIGRATION – Where there was a delay of 136 days in filing an application for review of the decision of the Tribunal – where there was no reasonable explanation provided in any affidavit for the delay – where the substantive grounds of review lacked merit and were not arguable – no jurisdictional error established – application dismissed.  

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant partner visa – whether Tribunal required to make finding as to whether applicant and sponsor were telling the truth – whether Tribunal required to make finding as to credibility or demeanour of applicant and sponsor – no jurisdictional error established 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether the Tribunal failed to comply with the requirements of s 359AA and s 359A of the Migration Act 1958 (Cth) - whether Applicant satisfied genuine temporary entrant criteria – no jurisdictional error established – application dismissed. 

BANKRUPTCY – where parties invited to provide draft form of orders to give effect to findings recorded in substantive judgment – where substantive judgment recorded finding that failure of Trustee to obtain advice on capital gains tax engaged the supervisory jurisdiction of the Court – where substantive judgment contemplated that Trustee’s power of sale would be varied to oblige the Trustee to obtain updated valuations of real estate and to offer the second respondent a first right of refusal to purchase the Trustee’s 50% interest in the property – where parties failed to agree on appropriate form of order – where orders sought by the second respondent travelled beyond findings recorded in the substantive judgment – where sale orders made in substantially the form sought by the Trustee – where order made for the Trustee to pay the second respondent’s costs of the substantive proceeding despite the second respondent not enjoying success on every “issue”

MIGRATION – Protection (subclass 866) visa –Application for extension of time for filing application for judicial review of Tribunal’s decision – Significant delay in filing application – Whether substantive application has reasonable prosects of success – Whether Tribunal lacked jurisdiction due to application for review being filed out of time – Whether Tribunal could extend time – No reasonable prospects of success – Application for extension of time refused – Order for costs  

MIGRATION – Student (Temporary) (Class TU) (subclass 500) visa – Application for extension of time for filing application for judicial review of Tribunal’s decision – Extent and reason for delay in filing application – Whether substantive application has reasonable prospects of success – No reasonable prospects of success – Application for extension of time refused – Order for costs 

MIGRATION - Safe Haven Enterprise (Subclass 790) visa – Whether Tribunal failed to consider the totality of the evidence – Consideration of oral evidence provided at Tribunal hearing – translation of evidence – Whether assessment of all the applicant’s claims had been adversely impacted by findings of credibility – Unreasonable or illogical reasoning - Application dismissed. 

MIGRATION – Regional Employer Nomination visa – decision of the then Administrative Appeals Tribunal – matter listed for a final hearing – applicant offshore – 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)

PRACTICE AND PROCEDURE – Application for leave to reopen where applicant’s evidentiary case had closed but final addresses had not been completed and judgment had not been reserved – limited tender of potentially relevant documents sought – application unopposed – where third and fourth respondents also sought leave to rely upon further evidence – leave to reopen granted and associated timetable ordered by consent 

INDUSTRIAL LAW – Practice and procedure – application to set aside notices to produce – whether issuer demonstrated legitimate forensic purpose – application to set aside one of the notices to produce dismissed and part of another notice to produce set aside. 

MIGRATION – Protection visa – decision of the then 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 – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to properly assess the complementary protection criteria – whether the Tribunal failed to address the applicant’s claims in relation to economic hardship – no jurisdictional error – application dismissed.

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the applicant was denied procedural fairness – whether the Tribunal’s decision was biased – whether the Tribunal’s findings were illogical or unreasonable – no jurisdictional error – application dismissed. 

MIGRATION – Protection visa – decision of the then 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 r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal’s decision was “inconsistent” with that of the delegate’s decision – whether the Tribunal failed to properly consider the evidence before it or failed to properly comply with relevant legislative provisions – no jurisdictional error – application dismissed.

MIGRATION – Protection visa – decision of the then 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 – decision of Administrative Appeals Tribunal cancelling protection visa – whether Tribunal failed to give proper consideration to best interests of applicant’s children – whether Tribunal failed to consider differential interests of applicant’s Australian citizen child – no jurisdictional error established – application dismissed

MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizen of Pakistan – whether error in interpreting or applying the law – whether error in interpreting the term “new information” – whether failure to consider whether information met relevant requirements before finding that there were not exceptional circumstances – whether it was not reasonably open to not find exceptional circumstances to consider certain information – whether error in interpreting or applying law concerning seeking new information at interview – whether error in interpreting or applying the terms “real chance” and “well-founded fear” of persecution and “ real risk” of significant harm – whether failure to consider a relevant consideration – whether failure to consider decision of Administrative Appeals Tribunal in referred material – whether failure to consider a psychologist’s report – whether failure to consider whether applicant might suffer relevant harm because of inability to get necessary psychological treatment if returned to Pakistan – whether findings legally unreasonable or made without a logically probative basis – whether legally unreasonable not to find exceptional circumstances in relation to various information – whether unreasonable not to seek new information whether at interview or otherwise about applicant’s role as eldest son of an elder in the community when issue not considered by the delegate – whether legally unreasonable to exclude the possibility that the applicant was personally targeted by the Taliban – whether legally unreasonable not to find that the applicant had a real chance of suffering relevant harm in the reasonably foreseeable future – whether legally unreasonable to exclude a real chance that the applicant might suffer relevant harm because of inability to obtain necessary psychological treatment if returned to Pakistan – whether jurisdictional error – writs issued.  

MIGRATION – application for judicial review – Temporary Work (Skilled) (Subclass 457) visa – where Administrative Appeals Tribunal affirmed a decision of the first respondent to refuse to grant the visa –  where the first applicant was not the subject of an approved nomination – where Tribunal received adverse information and s 376 certificate was issued – whether failure to disclose certificate was material – found failure of Tribunal to disclose certificate was material –jurisdictional error established – application allowed. 

MIGRATION – application for judicial review – Protection (subclass 866) visa – where Administrative Appeals Tribunal affirmed decision of first respondent – whether Tribunal failed to comply with Ministerial Direction No 56 – found the Tribunal expressly referred to Direction 56 and considered country information to the extent it was relevant – whether the Tribunal was required to put adverse credibility findings it had made in respect of the applicant’s mother and father to the applicant pursuant to s 424A of the Migration Act 1958 (Cth) – found adverse credibility findings is not “information” for the purpose of s 424A – found no jurisdictional error on behalf of the Tribunal – application dismissed  

MIGRATION – application for judicial review – Temporary Business Entry (Class UC) (Subclass 457) visa – where Administrative Appeals Tribunal affirmed a decision of the first respondent to refuse to grant the visa –where applicant was the sponsor – where Tribunal found nominated occupation not to be genuine –where Tribunal received adverse information and s 376 certificate was issued – found failure of Tribunal to disclose certificate was material –jurisdictional error established – application allowed. 

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision to cancel the applicant’s student visa – whether the Tribunal asked itself the wrong question – whether the Tribunal constructively failed to consider relevant evidence and submissions – no jurisdictional error – application dismissed.