Judgments

INDUSTRIAL LAW – FAIR WORK – retail industry – failure to comply with compliance notice – where default judgment was entered in respect of liability and respondent has continued to elect not to participate in the proceedings for relief – final relief granted on default. 

FAIR WORK – general protections court application lodged but not accepted for filing within proscribed time – where short and explained delay, no particular prejudice to the respondent and at least the basis of a claim articulated – extension of time granted. 

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 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) 

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL – where the Tribunal was not satisfied that the applicant was the spouse of the sponsor – whether the Tribunal failed to consider each of the mandatory considerations in reg 1.15A of the Migration Regulations 1994 (Cth) – whether the Tribunal overlooked evidence led in support of the applicant’s claims and failed to make findings about relevant matters – jurisdictional error established – writs issued 

MIGRATION – student (class TU) (subclass (500) visa – where delegate refused to grant the applicants visas – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – where Tribunal affirmed delegate’s decision – where first applicant failed to satisfy cl 500.211 of Sch 2 to the Migration Regulations 1994 (Cth) – where first applicant not enrolled in a registered course of study – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed

MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – Protection (Class XA) Visa – dismissal for non-appearance.

PRACTICE AND PROCEDURE – interlocutory application for an adjournment on medical grounds – application opposed – medical report did not disclose that the applicant was suffering from any medical condition that required immediate medical treatment which prevented the applicant from attending the hearing – adjournment refused.

PRACTICE AND PROCEDURE – interlocutory application for an adjournment on medical grounds – application opposed – medical report did not disclose that the applicant was suffering from any medical condition that required immediate medical treatment which prevented the applicant from attending the hearing – adjournment refused 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal – adjournment request by applicant refused by Tribunal - applicant did not attend scheduled hearing – Tribunal decided to proceed to decision on review – whether decisions of Tribunal refusing to adjourn hearing and proceeding with hearing in absence of applicant were legally unreasonable – application dismissed. 

MIGRATION – application for review of decision of registrar – registrar summarily dismissed application for judicial review of decision of Administrative Appeals Tribunal – re-hearing of summary dismissal application – whether judicial review application has no reasonable prospects of success – application for review of registrar’s decision lodged 20 days late – no explanation for delay – extension of time refused. 

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – visitor visa – genuine temporary entrant requirement – where the Tribunal incorrectly applied cl 600.611(3) of Sch 2 of the Migration Regulations 1994 (Cth) in considering whether the applicant intended to comply with the visa conditions – whether the error was material – whether the Tribunal erred by finding the applicant would not comply with condition 8503 – material error established by the Tribunal in misconstruing and incorrectly assessing the conditions to which the visa would be subject – writs issued. 

MIGRATION – Regional Employer Nomination (Subclass 187) visa – Application for review of Registrar - Whether an extension of time should be granted – Whether reasonable prospects of successful prosecution of application for judicial review - Application dismissed. 

MIGRATION – Protection visa – Application for review of Registrar - Whether application for judicial review has reasonable prospects of successful prosecution – Whether extension of time should be granted – Extension of time refused - Application for review dismissed. 

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 otherwise attended by legal unreasonableness — jurisdictional error established — application allowed with costs. 

MIGRATION - Protection (Class XA) (Subclass 866) visa – Application for judicial review – Non-appearance of applicant – Application dismissed pursuant to r13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth). 

MIGRATION – Immigration Assessment Authority –  Safe Haven Enterprise (Class XE) (subclass 790) visa – whether the Authority was required to invite the applicant to provide information pursuant to s 473DC of the Migration Act 1958 (Cth) – whether the Authority must consider a sur place claim –  where the Authority is entitled to disagree with the delegate’s evaluation of the material –  whether a previous Federal Circuit Court decision identified the pseudonymised applicant –  grounds of judicial review have no merit –  application dismissed with costs. 

MIGRATION – (Subclass 790) Safe Haven Enterprise Visa (SHEV) – Application for an extension of time – judicial review application filed 171 days out of time – no requirement for the Tribunal to make findings as to the consequences of visa cancellation – where there is no merit in the proposed grounds of review – application refused 

MIGRATION – application for judicial review – regional employer nomination (subclass 187) visa – refusal due to lack of approved nomination – application for review of registrar’s summary dismissal – extension of time – procedural fairness – application dismissed. 

FAIR WORK – penalty hearing - deliberate and intentional contravention by the respondent - reflects conduct of a kind that shows there is a very real need for subjective deterrence - maximum penalty of $41,250 imposed  

FAIR WORK – penalty hearing - first respondent is about to be placed in liquidation - second respondent has limited financial means - second respondent cooperated with the Court in the giving of oral evidence - $28,875 penalty imposed on the first respondent being 70% of the maximum penalty - $3,000 penalty imposed on the second being approximately 36% of the maximum penalty. 

MIGRATION LAW – application for judicial review of a decision of the Administrative Appeals Tribunal to not grant a protection visa – complementary protection criterion – assessment of the Applicant’s profile – common sense and realistic approach to reading the Tribunal’s Decision – Tribunal did not misapply real risk test – findings open to the Tribunal – application dismissed with costs 

MIGRATION LAW – application for review of Registrar’s decision – where Registrar summarily dismissed the judicial review application – Tribunal found no jurisdiction to review the Delegate’s decision to refuse a protection visa as review application was filed 143 days out of time – no prospects of success – application dismissed with costs – Registrar’s decision affirmed 

MIGRATION – Judicial review – protection visa – oral testimony and photographic evidence – inconsistencies and assessment of credibility – whether Tribunal failed to articulate the significance of an inconsistency when making an adverse credibility finding – whether Tribunal failed to consider an explanation for an inconsistency when making an adverse credibility finding – delay in making a protection visa application – where delay may be considered as part of Tribunal’s assessment that an applicant has a ‘well-founded fear of persecution’ – jurisdictional error established.

MIGRATION - protection (class XA) visa application – Tribunal found the applicant’s claims lacked in overall credibility and did not accept that the applicant had any genuine fear of persecution for the reasons claimed - the applicant is not a person in respect of whom Australia has protection obligations – no jurisdictional error established - application dismissed.   

MIGRATION– Application for review of Registrar’s decision to summarily dismiss judicial review application – Tribunal dismissed the application for merits review after non-appearance by the Applicant at the Tribunal hearing – Tribunal confirmed its dismissal decision after no reinstatement application received – Applicant nominated friend’s contact details – grounds of review have no prospects of success – Registrar’s decision affirmed – application dismissed with costs 

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal failed to take into account country information – whether the Tribunal erred by failing to address whether the Chinese minority are discriminated against in Malaysia – no jurisdictional error – application dismissed. 

MIGRATION – costs – application for costs to be awarded in a fixed amount after determination of the matter following a final hearing – fixed costs order made

PRACTICE AND PROCEDURE – where the applicant failed to comply with an order of the Court – application dismissed pursuant to r 13.05(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) 

CONSUMER LAW – Practice and Procedure – Where the Applicant has made an application for orders under s. 123 of the Personal Property and Securities Act 2009 (Cth) – Where the Applicant sought an urgent interlocutory order on an ex parte basis to seize the vehicle pending a final hearing – Orders for seizure and storage of Vehicle – Undertaking as to damages. 

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – matter has a migration history and visa history – allegations of loan lenders with high profile gangsters – whether the Tribunal misconstrued significant harm – whether the Tribunal’s decision was legally unreasonable – jurisdictional error not established – application dismissed with costs

PRACTICE AND PROCEDURE – APPLICATION FOR AN ADJOURNMENT OF THE HEARING – where the applicant would like to be legally represented – where there is no certainty of legal representation – where the discretion to adjourn the hearing is not enlivened.

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – whether Tribunal erred in considering the applicant’s claim to experience harm as a result of her sexual identity – whether the Tribunal’s decision was legally unreasonable – whether the Tribunal denied the applicant procedural fairness - jurisdictional error not established – application dismissed with costs.  

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – whether the Tribunal failed to investigate the applicant’s claims – whether the Tribunal failed to consider allegation of domestic violence – whether the Tribunal’s decision was legally unreasonable – whether the Tribunal placed excessive weight on outdated country information – jurisdictional error not established – application dismissed with costs  

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence that was before it – limitations of the Court’s role on judicial review – application dismissed. 

MIGRATION – application for judicial review of decision made by Administrative Appeals Tribunal – protection visa – whether the Tribunal should consider a claim that was not properly articulated – jurisdictional error established.

MIGRATION – Application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA applied the incorrect legal test in determining the applicant’s claims against the complementary protection criterion – application dismissed. 

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal considered evidence that was of central relevance to its decision – writs issued. 

INDUSTRIAL LAW – Practice and procedure – respondent company in administration – administrators do not consent to the matter proceeding – orders made providing for dismissal of the application if specified steps are not taken by a certain date

FAIR WORK – contravention of Fair Work Act 2009 – failure to comply with compliance notice – failure to comply with court orders - unpaid employee entitlements – pecuniary penalties – need for urgent law reform – need for jurisdiction under Corporations Act – need for provision for disqualification from managing corporate entities.  

MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – Partner visa – whether applicants given access to written material before the Tribunal – application of Australian Privacy Principle 6 – whether Tribunal misconstrued and misapplied provision concerning family violence exception to Partner visa criteria – where Tribunal did not wish to go behind the findings of the Magistrate – whether reasonable apprehension of bias – whether jurisdictional error – writs issued  

FAMILY LAW – Parenting – Where parents have highly conflictual relationship – Father’s ability to cooperate with Mother considered ‘problematic’ – Father highly critical of Mother’s parenting – Allegations of family violence – Where Father minimised family violence on affidavit and in the witness box – Aspects of family violence characterised by Father as not inappropriate in his culture – Child experts concerned about children’s involvement in and absorption of parental conflict – Orders made to reduce contact between parents – Orders made for spend time arrangements in relation to important religious and cultural events.

PROPERTY – De facto relationship – Limited assets available for division – Where Father alleges Mother has retained or dissipated matrimonial funds by investing in shares – Finding that Mother was “scammed” and lost the funds invested – Where Father obtained significant funds from his parents during the relationship and did not inform the Mother – Where Father paid same funds plus large sum claimed to be “interest” back to parents around the time of separation – Insufficient evidence to substantiate Father’s assertion that the funds were a “loan” – Funds added back to asset pool

BANKRUPTCY – application for review of exercise of power by registrar making sequestration order – whether Court satisfied with proof of matters in s 52(1) – requirements for making sequestration order satisfied   PRACTICE AND PROCEDURE – whether to extend interim non-publication order  PRACTICE AND PROCEDURE – consideration of whether to refer party to lawyer for legal assistance by issuing referral certificate 

MIGRATION - applicant did not attend the digital hearing - appropriate matter in which to exercise the Court's powers to dismiss the application under r 13.6(1)(c) of the rules.  

MIGRATION – Application for a Student (Temporary) (Class TU) visa – Review of the Administrative Appeals Tribunal (“Tribunal”) decision – Allegation that the Tribunal’s decision was affected by jurisdictional error – Where the applicant alleges procedural unfairness as a consequence of the reconstitution of the Tribunal – Where s 19A of the Administrative Appeals Tribunal Act 1975 (Cth) enables the Tribunal to be reconstituted – Where the applicant alleges that without a written transcript of the first Tribunal hearing the reconstituted Tribunal Member could not make findings about the applicant’s credibility – Where the applicant alleges “apparent” bias on the part of the Tribunal Member – Where bias on behalf of the Tribunal Member was not made out – Where the applicant was found not to be a genuine temporary entrant – Where the applicant alleges that the Member did not give proper consideration to documentary evidence – Where the applicant did not avail himself of opportunities to provide further documentary evidence to the Tribunal – Application dismissed 

MIGRATION – application for judicial review of decision made by Administrative Appeals Tribunal – student visa – whether the Tribunal missed or failed to consider a relevant consideration – no jurisdiction error established – application dismissed.

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – where the applicant fears harm on the basis of his involvement with an opposition party – where the Minister concedes Tribunal misconstrued evidence – whether error was material – anatomy of decision-making considered – realistic possibility of different outcome – jurisdictional error established – writs issued 

MIGRATION – judicial review – decision of the Administrative Appeals Tribunal to refuse student visa –where the summary dismissal by a registrar was set aside on the basis of the applicant having a sufficiently arguable case – whether the applicant meets genuine temporary entrant criterion – whether the Tribunal erred – whether error met threshold of materiality – whether there is a realistic possibility of different outcome – application dismissed 

MIGRATION – student (subclass 500) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – judicial review – genuine temporary entrant criterion – whether Tribunal’s decision legally unreasonable – whether Tribunal’s decision affected by reasonable apprehension of bias – whether Tribunal gave genuine and active intellectual consideration to the applicant’s evidence – Tribunal’s decision attended by jurisdictional error – writ of certiorari issued – writ of mandamus issued

MIGRATION – Non-appearance of the applicant at the final hearing – Where the applicant was properly informed of the hearing – 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 (class XA) (subclass 866) visa – review of decision of the (then) Administrative Appeals Tribunal – judicial review – whether Tribunal denied the applicants procedural fairness by refusing an adjournment application – whether Tribunal decision was illogical or unreasonable – whether Tribunal failed to consider relevant material – whether Tribunal decision was affected by apprehended bias – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider claims or evidence – whether Tribunal’s decision was biased – whether applicant was denied procedural fairness – no jurisdictional error established – application dismissed. 

MIGRATION – application for habeas corpus – application for summary dismissal – application to amend the application for habeas corpus – whether habeas corpus only applies where physical detention or restriction on freedom of movement – whether habeas corpus applies to restrictions on other freedoms – the applicant’s proposed amendments arguable – summary dismissal application dismissed 

MIGRATION – Review of delegate’s decision – refusal to waive condition 8503 (no further stay) – whether the delegate failed to understand and address the applicant’s claims – whether the delegate failed to apply the correct legal test – no jurisdictional error established – application dismissed.