Judgments

INDUSTRIAL LAW – Fair Work – failure to comply with compliance notices – application for civil penalties and orders for rectification under s 545(1) of the Fair Work Act 2009 (Cth) – where respondents engaged only briefly in the proceeding and declarations made on the basis of their deemed admissions – where first respondent continues to trade and remains registered – where no evidence of contrition or introspection about the contraventions – where need for specific and general deterrence – jurisdiction under s 545(2)(b) not engaged where no quantifiable loss causally linked to the contraventions – orders for penalties and for a proportion of the penalties to be redirected to the employees identified in the compliance notices.

BANKRUPTCY – Whether moneys received “as a result of execution” – Where the County Court made a freezing order restraining the debtor from disposing of real estate –Where the Respondent subsequently obtained judgment in the County Court against the debtor – Where a bank as mortgagee in possession sold the real estate of the debtor and his wife under the terms of the freezing order as amended – Where the Respondent received moneys, namely the surplus proceeds of sale of the real estate after the presentation of a creditor’s petition against the debtor – Whether the Respondent as creditor received moneys “as a result of execution” under s. 118(1)(a)(i) of the Bankruptcy Act 1966 (Cth) and had to pay those monies to the trustee of the estate of the bankrupt – Held respondent did not receive moneys “as a result of execution”.

BANKRUPTCY – “Relation back” principle – Where Respondent received the moneys after “the commencement of the bankruptcy” because of the doctrine of “relation back” – Whether the Respondent had a defeasible title in the moneys or no title at all – Held because of the doctrine of relation back the Respondent had no title to moneys – Where Respondent disposed of the moneys before the date of sequestration by reducing his own debts.

AMENDMENT – Held that any application by the Trustees to recover the moneys was in the nature of an equitable claim in restitution – Where the court refused the Applicant permission to amend the application to include a claim in restitution at trial – Application dismissed.

CORPORATIONS LAW – application for leave to commence or continue proceedings pursuant to s 471B of the Corporation Act 2001 (Cth) – whether this Court has jurisdiction to grant leave pursuant to s 471B.

INDUSTRIAL LAW – application alleging contravention of general protection provisions in Part 3-1 of the Fair Work Act 2009 (Cth). 

COSTS – where security for costs application was filed after evidence was not provided supporting an alternative form of security proposed – where disclosure of matters relevant to the adequacy of the alternative occurred after the first hearing date of the security for costs application – where a commercial decision was ultimately taken to accede to the form of security originally sought – order that the applicant in the proceeding pay part of the respondent’s costs associated with the security for costs application. 

PRACTICE AND PROCEDURE – application for an extension of time to seek judicial review of a decision of the Administrative Review Tribunal – extension of time granted. 

MIGRATION – judicial review of decision of Administrative Appeal Tribunal to affirm decision to refuse protection visa – whether the Tribunal discharged procedural fairness obligations – whether interpreter errors infected credibility findings –materiality – jurisdictional error established. 

PRACTICE AND PROCEDURE- personal costs award against solicitor – r 32.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2025 – referral to legal regulators.

MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – whether the IAA was required to invite the applicant to an interview – whether certain information was required to be disclosed to the applicant – whether applicant was provided with sufficient information to meaningfully respond – no jurisdictional error established – application dismissed. 

MIGRATION – employer nomination (subclass 186) visa – refusal due to no approved nomination – application for review of registrar’s summary dismissal – no reasonably arguable error – futility of remittal – application dismissed. 

MIGRATION – whether the Tribunal erred in finding the applicant was not a genuine temporary entrant – where applicant contends that the Tribunal denied him procedural fairness and failed to consider his evidence and submissions – no jurisdictional error – application dismissed. 

MIGRATION – protection visa –application for extension of time to seek judicial review of Administrative Appeals Tribunal (Tribunal) decision – significant delay and insufficient explanation for the delay - limited prejudice to the Minister – limited arguable case of jurisdictional error - application for extension of time refused. 

BANKRUPTCY – Whether moneys received “as a result of execution” – Where the County Court made a freezing order restraining the debtor from disposing of real estate –Where the Respondent subsequently obtained judgment in the County Court against the debtor – Where a bank as mortgagee in possession sold the real estate of the debtor and his wife under the terms of the freezing order as amended – Where the Respondent received moneys, namely the surplus proceeds of sale of the real estate after the presentation of a creditor’s petition against the debtor – Whether the Respondent as creditor received moneys “as a result of execution” under s. 118(1)(a)(i) of the Bankruptcy Act 1966 (Cth) and had to pay those monies to the trustee of the estate of the bankrupt – Held respondent did not receive moneys “as a result of execution”. 

BANKRUPTCY – “Relation back” principle – Where Respondent received the moneys after “the commencement of the bankruptcy” because of the doctrine of “relation back” – Whether the Respondent had a defeasible title in the moneys or no title at all – Held because of the doctrine of relation back the Respondent had no title to moneys – Where Respondent disposed of the moneys before the date of sequestration by reducing his own debts. 

AMENDMENT – Held that any application by the Trustees to recover the moneys was in the nature of an equitable claim in restitution – Where the court refused the Applicant permission to amend the application to include a claim in restitution at trial – Application dismissed.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – Tribunal found applicant gave bogus document in relation to visa application within meaning of PIC 4020(1)  – Tribunal not satisfied there were compassionate or compelling circumstances which justified waiver of PIC 4020 – no point of principle – application dismissed. 

MIGRATION – temporary protection (class XD) (subclass 785) visa – review of decision of delegate of the respondent – judicial review – application for extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) – where delegate found applicant was excluded fast track review applicant under s 5(1) of the Act – where delegate found the applicant provided bogus documents – applicant failed to provide reasonable explanation for providing bogus documents – whether delegate’s decision was illogical, irrational or unreasonable – admissibility of evidence – where evidence directed to questions of fact – evidence not admissible – merits of proposed application weak – not in the interests of justice to extend time – application for extension of time refused. 

MIGRATION – application for Skilled (Provisional) (Class VC) (Subclass 485) visa – Administrative Appeals Tribunal not satisfied that applicant met cl 485.212(a) of Schedule 2 of the Migration Regulations – delegate’s decision to refuse the grant of the visa affirmed – whether in interests of administration of justice to grant an extension of time application – no substantial merit to grant extension of time found – application dismissed.

MIGRATION -  application for judicial review – combined Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) Visa – where Administrative Review Tribunal affirmed decision not to grant applicant the visa as applicant failed to satisfy cl 820.211(2)(d) of the Regulations – whether Tribunal erred by finding that no compelling reasons existed – found no jurisdictional error on behalf of the Tribunal – 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 comply with cl 500.212(a) of the Migration Regulations – whether the Tribunal’s decision was affected by jurisdictional error – found no jurisdictional error on behalf of the Tribunal – application dismissed. 

INDUSTRIAL LAW –  unlawful termination - whether employer took adverse action in dismissing applicant from employment because she exercised workplace rights, possessed protected attributes and/or was temporarily absent from work  – single decision maker – allegations of serious misconduct related to processing of insurance policies – whether the proscribed matters were a substantial or operative reason for the adverse action taken – reverse onus discharged by employer – application dismissed.  

"CORPORATIONS – Corporate party placed in liquidation – whether s.500(2) of the Corporations Act 2001 (Cth) imposed stay preventing court from delivering reserved judgment.

COURTS AND TRIBUNALS – Associated jurisdiction – nature of Federal Circuit and Family Court of Australia (Division 2)’s associated jurisdiction over matters arising under the Corporations Act 2001 (Cth) –  jurisdictional restriction imposed by s.58AA of the Corporations Act 2001 (Cth).

STATUTORY INTERPRETATION – generalia specialibus non derogant. "
 

MIGRATION – Whether the Tribunal had truly considered all of the circumstances before cancelling the visa – Circumstances not fully considered – writs issued.  
 

MIGRATION – whether the Tribunal erred in finding the first named applicant did not intend to genuinely stay in Australia temporarily – whether the Tribunal’s reference to Ministerial Direction No. 69 instead of Ministerial Direction 108 amounts to jurisdictional error – no jurisdictional error on the part of the Tribunal – application dismissed.
 

MIGRATION – Where Tribunal found it did not have jurisdiction in circumstances where application was made 1 day out of time. 
 

MIGRATION – protection (class XA) (subclass 866) visa – review of decision of the former Administrative Appeals Tribunal (Tribunal) – where Tribunal affirmed the delegate’s decision refusing the applicant a visa – whether Tribunal’s decision attended by jurisdictional error – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed. 
 

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

MIGRATION – Review of decision of registrar dismissing application to reinstate judicial review proceeding – judicial review proceeding dismissed due to non-appearance of applicant at callover – whether applicant provided satisfactory explanation for non-appearance at callover – prospects of success of underlying judicial review proceeding  PRACTICE AND PROCEDURE – Observations concerning abuse of process and consequences for applicant 
 

MIGRATION – Whether the Tribunal erred in finding that the applicant did not satisfy the requirements of PIC 4020 under cl 500.217 of the Regulations – where the applicant contends that PIC 4020 should not apply to him because he did not intentionally provide a bogus document as it was altered by someone else without his knowledge – where there was no jurisdictional error made by the Tribunal in finding the document was bogus in accordance with s 5(1) – application dismissed 
 

MIGRATION – Whether the Tribunal erred in finding that the applicant was not a genuine temporary entrant under cl 500.212 – where the applicant contends the Tribunal failed to consider evidence –  no jurisdictional error by the Tribunal – application dismissed 
 

MIGRATION – Whether the Tribunal erred in finding that the applicant was not a genuine temporary entrant under cl 500.212 – where the Tribunal did not comply with a request for written reasons within the prescribed period under s 368D(4)(b) and this does not disclose jurisdictional error under s 368D(7)(b) – where the applicant contends the Tribunal did not afford him procedural fairness – where there is no jurisdictional error by the Tribunal – application dismissed 
 

MIGRATION – application for an injunction to restrain the Minister from exercising power of removal under s 198(5) of the Migration Act 1958 (Cth) pending the determination of an application for review to the Administrative Review Tribunal of a decision not to grant a Bridging E visa on character grounds – whether the operation of s 198(5) is suspended or deferred for such time as is necessary for the application for review to be determined – operation of s 198(5) not suspended – application for an injunction is dismissed. 
 

MIGRATION – Review of delegate’s decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.  
 

MIGRATION – Partner (Provisional) (Class UF) (Subclass 309) visa – Administrative Appeals Tribunal –one ground of judicial review – whether the Tribunal made a jurisdictional error by cancelling the applicant’s visa - sole ground of judicial review has no merit – Application dismissed. 
 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing Medical Treatment visa – whether Sch 2 cl 602.215 should be applied – whether applicant genuinely intended to stay temporarily in Australia – - Tribunal failed to consider relevant information - no jurisdictional error established – application dismissed.  
 

MIGRATION – Whether the Tribunal had truly considered all of the circumstances before cancelling the visa – Circumstances not fully considered – writs issued. 
 

MIGRATION – Where applicant did not attend the hearing – where at hearing before this Court, the applicant raised “third party fraud” – whether evidence did not disclose fraud – application dismissed. 
 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant medical treatment visa – whether applicant satisfied Sch 2 cl 602.215 – whether applicant was genuine temporary entrant for purpose of medical treatment visa – whether applicant denied applicant procedural fairness - no jurisdictional error established – application dismissed.  
 

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – constructive denial of access to mental health services due to societal stigma – whether claim arose on the materials – whether applicant expressly made claim – whether Tribunal addressed claim in finding of greater generality – jurisdictional error established – writs issued.
 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal failed to provide applicant with opportunity to provide evidence – whether Tribunal breached s 426(3) of the Act - no jurisdictional error established – application dismissed.    
 

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 – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – whether Authority failed to consider applicant was a child at time events occurred – whether Authority acted unreasonably in not exercising power under s 473DC to obtain English translation of document in foreign language - application dismissed. 
 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal made an error in its assessment of the reasonableness of relocation under s 36(2B)(a) of the Act - no jurisdictional error established – application dismissed.   
 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal was misdirected in its statutory task in determining the student visa application – whether applicant met cl 500.213(1) – exemption in cl 500.213(2)(d) did not apply - no jurisdictional error established – application dismissed.    
 

"CORPORATIONS – Corporate party placed in liquidation – whether s.500(2) of the Corporations Act 2001 (Cth) imposed stay preventing court from delivering reserved judgment.

COURTS AND TRIBUNALS – Associated jurisdiction – nature of Federal Circuit and Family Court of Australia (Division 2)’s associated jurisdiction over matters arising under the Corporations Act 2001 (Cth) –  jurisdictional restriction imposed by s.58AA of the Corporations Act 2001 (Cth).

STATUTORY INTERPRETATION – generalia specialibus non derogant. "

"BANKRUPTCY – Service of Bankruptcy Notice – Whether Creditor’s Petition is defective – Claims of procedural and evidential irregularities and deficiencies – Assertion of counter-claim, set-off, or cross demand

INTERIM APPLICATION – Seeking extension of compliance with Bankruptcy Notice – Seeking of stay pending other proceedings and applications.  "
 

MIGRATION - application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) affirming refusal of a protection visa – whether the IAA failed to consider evidence or claims – whether the IAA’s decision was otherwise affected by relevant error – application dismissed. 
 

MIGRATION – application for an injunction to restrain the Minister from exercising power of removal under s 198(5) of the Migration Act 1958 (Cth) pending the determination of an application for review to the Administrative Review Tribunal of a decision not to grant a Bridging E visa on character grounds – whether the operation of s 198(5) is suspended or deferred for such time as is necessary for the application for review to be determined – operation of s 198(5) not suspended – application for an injunction is dismissed. 
 

MIGRATION LAW – Extension of time application - applicant filed 249 days out of time – insufficient explanation as to delay – Tribunal’s found that the review application was filed out of time and it had no jurisdiction – reasonable prospects of success not established – extension of time not warranted – costs ordered  

INDUSTRIAL LAW – review of a decision of a Registrar – hearing de novo – small claims jurisdiction – underpayment claim – casual cleaner over a six year period – agreed rates of pay and award rates of pay – calculation of underpayment – identification of the employer – jurisdiction not invoked – orders set aside

PRACTICE AND PROCEDURE - Duties of competence and compliance are not suspended simply because subject matter of litigation is migration – where applicant became represented 6 days before final hearing and solicitor sent correspondence to Court directing Court to adjourn

MIGRATION – Cancellation of protection visa - Where the Applicant was granted a protection visa in 2011 – Where in 2020 the Minister gave the Applicant a notice of an intention to consider cancellation of the visa because he had not complied with s.101(b) of the Migration Act 1958 (Cth) because he had given incorrect information on his visa application – Where in his response to the Notice the Applicant conceded that he had given incorrect information – Where the Minister exercised the discretion to cancel the visa under s. 109 and the Tribunal confirmed the Minister’s cancellation decision – Whether the Tribunal failed to consider a claim that the Applicant feared harm because he was of Kurdish ethnicity and because if he returned to Iran he would do so as a failed asylum seeker – Whether the Tribunal put the Applicant on notice of the issues on review - Whether the Tribunal’s finding was unreasonable in the legal sense – Application dismissed. 

BANKRUPTCY – Ex Tempore – bankrupt failed to file a statement of affairs – trustee application under s 146 of the Bankruptcy Act 1966 (Cth) – pseudolegal argument - where the applicant alleges assents to legislation and appointments by the sovereign are invalid – application granted