Judgments

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 properly consider new claims raised at the hearing – whether the Tribunal misinterpreted or gave insufficient weight to documents provided by the applicant – whether the Tribunal failed to afford the applicant a fair hearing – no jurisdictional error – application dismissed.  

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether the Tribunal was unreasonable, illogical or irrational in determining applicant’s application under s 426A(1A)(a) - without considering alternative powers to dismiss application in s 426A(1A)(b) - no jurisdictional error established – application dismissed.  

PRACTICE AND PROCEDURE – Pleadings – application to file amended statement of claim – application to join additional respondents. 

CONSUMER PROTECTION – RECOVERY ACTION FOR MOTOR VEHICLE – Applicant seeks a declaration and orders for recovery of a vehicle under the Personal Property Securities Act 2009 (Cth) in respect of which it loaned moneys to the first respondent– Where the respondents each have not engaged in the proceedings – Finding that the Applicant is entitled to recovery of the vehicle under s.123 of the Personal Property Securities Act 2009 (Cth) – Declarations and orders made for recovery. 

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 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). 

PRACTICE AND PROCEDURE - Fair Work Act -Adverse Action claim - Application for an extension of time to commence proceeding – Self-represented litigant - Application not opposed - Extension of time granted. 

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant student visas – whether Tribunal ignored relevant material – whether failure by the Tribunal to disclose the existence of the s 376 certificate was material - no jurisdictional error established – application dismissed.   

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa - where Tribunal exercised discretion to proceed in the applicant’s absence under s 426(1A)(a) and not under s 426(1A)(b) - no jurisdictional error established – application dismissed.  

MIGRATION – Partner (Temporary) (Class UK) (Subclass 820) visa - Application for judicial review – Whether Tribunal made jurisdictional error in dismissing review application after non-appearance - Whether applicant consented to waive hearing appearance - Application dismissed. 

INDUSTRIAL LAW – PRACTICE AND PROCEDURE – application to strike out evidence of communications and documents made or prepared in connection with an attempt to negotiate a settlement of the dispute – whether any exceptions apply – whether the evidence and documents are admissible – application allowed – orders made striking the material out – orders made prohibiting inspection of the evidence and documents by any non-party.

INDUSTRIAL LAW – PRACTICE AND PROCEDURE – application for security for costs – application of s 570 of the Fair Work Act 2009 (Cth) -  whether the applicant’s unreasonable act or omission caused the other party to incur the costs – where the applicant is self-represented – application dismissed

INDUSTRIAL LAW – alleged underpayments – finding that the applicant was underpaid certain entitlements – identity of employer – finding of accessorial liability – penalties to be determined.

MIGRATION – Protection Visa – refusal – review of Immigration Assessment Authority (“IAA”) decision – no matter of principle.

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.

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 

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

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

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. 

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  

COSTS – section 570 of the Fair Work Act 2009 (Cth) – whether late amendment of pleadings constitutes an unreasonable act – relevant considerations.  

MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa – whether the Authority failed to take into account the outcome of its assessment under s.473DD(b)(i) of the Migration Act 1958 (“the Act”) in its assessment under s.473DD(a) of the Act - whether the Authority’s assessment under s.473DD(a) of the Act was irrational or illogical – whether the Authority asked the wrong question under s.473DD(a) of the Act – whether the Authority’s finding that the applicant was not a spy for the LTTE, but that he merely undertook observational tasks, was irrational. 

COSTS – section 570 of the Fair Work Act 2009 (Cth) – whether late amendment of pleadings constitutes an unreasonable act – relevant considerations.  

BANKRUPTCY – review of registrar’s decision – dispute arose between the applicant and the respondent concerning a Final Fee Notice – where applicant does not seek to prosecute creditor’s petition – circumstances where there is evidence that there are no other Creditors of the respondent – creditors petition dismissed – sequestration order set aside.  

MIGRATION – Judicial Review – Where Administrative Appeals Tribunal (Tribunal) affirmed the decision not to grant applicant a student visa as it found the applicant was not a genuine applicant for entry and stay as a student as required under cl 500.212 – Whether Tribunal failed to consider the applicant’s circumstances – Whether Tribunal complied with procedural fairness obligations - Direction No. 108 considered – application dismissed. 

MIGRATION – Judicial Review – Where Administrative Appeals Tribunal (Tribunal) affirmed the decision not to grant applicants student visas as it found the applicant did not satisfy PIC 4020 – application dismissed 

MIGRATION – Protection (Class XA)(subclass 866) – judicial review of a decision of the Administrative Appeals Tribunal – procedural fairness – adequacy of interpretation – failure to call witness to give evidence – no jurisdictional error established – application dismissed.  

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether Tribunal misconstrued direction made under s 499 of Act and thereby failed to comply with direction – whether Tribunal excluded capacity of factor in direction to weigh in favour of applicant – application dismissed  

MIGRATION – Judicial Review – whether the Tribunal erred in determining that the applicant was not a genuine temporary entrant – where the Tribunal referred to Ministerial Direction No. 69 instead of Ministerial Direction No. 108 – where this error was not material and did not amount to jurisdictional error – application dismissed.  

MIGRATION – protection visa – judicial review of decision of Immigration Assessment Authority to refuse visa – where new DFAT country information published before Authority’s decision – whether Authority bound by Ministerial Direction no. 56 to consider most recent country information – whether unreasonable not to consider new information – whether Authority failed to properly assess whether documents were credible personal information – whether Authority failed to consider whether exceptional circumstances existed – whether Authority misunderstood or misinterpreted the law – whether logically probative basis existed for finding document was fabricated – jurisdictional error found – matter to be remitted 

FAIR WORK – Assessment of civil pecuniary penalty for contravention of s 716(5) of the Fair Work Act by failing to comply with a compliance notice given to it by the Fair Work Ombudsman – where second respondent knowingly involved in contravention – no corrective action or contrition – no antecedent conduct 

MIGRATION LAW – ex tempore reasons –  application for interlocutory injunction to restrain the Minister from removing the applicant from Australia – prima facie case not established – balance of convenience not in favour of Applicant – Application dismissed with costs   

INDUSTRIAL LAW – contravention of s 716(5) of the Fair Work Act 2009 (Cth) – liability conceded – consent to penalties proposed – whether the penalties and other orders proposed by the parties are appropriate – proposed orders made 

MIGRATION – Application for Student (Temporary) (Class TU) visa – Review of Administrative Appeals Tribunal (“Tribunal”) decision – Allegation that the Tribunal’s decision was affected by jurisdictional error – Allegation that the Tribunal erred in determining that the applicant was not a genuine temporary entrant – Allegation that the Tribunal’s decision lacked clarity – Application dismissed. 

MIGRATION – Decision of Administrative Appeals Tribunal to refuse student visa – bias – failure to consider evidence – failure to intellectually engage - procedural fairness 

MIGRATION LAW – Where the applicant failed to place evidence in support of his claims before the Tribunal when it was his obligation to do so – where the applicant’s Grounds of Review lacked particularity and were meaningless – where the applicant was in default of Court orders at the time of the hearing before the Court – no jurisdictional error established – application dismissed. 

MIGRATION – Application for judicial review– Matter listed for a final hearing – No appearance by or on behalf of the applicant – Application dismissed for non-appearance –Order for costs. 

CHILD SUPPORT – Amended Notice of Appeal dismissed – increase in child support payment – applicant pay first respondent’s costs  

MIGRATION – Safe haven enterprise (subclass 790) visa – judicial review – decision of the former Immigration Assessment Authority (IAA) – where IAA affirmed decision of delegate of the first respondent refusing the applicant a visa – whether IAA’s decision attended by jurisdictional error – IAA’s decision not attended by jurisdictional error – application for judicial review dismissed 

MIGRATION – Protection (class XA) (subclass 866) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – extension of time – where there is no acceptable explanation for the delay – where there is no arguable case of jurisdictional error – not satisfied that it is in the interests of administration of justice to grant an extension of time – application to extend the 35-day period is dismissed

MIGRATION – Application for a Student (Temporary) (Class TU) visa – Review of Administrative Appeals Tribunal (“Tribunal”) decision – Allegation that the Tribunal’s decision was affected by jurisdictional error – Where the applicant alleges that the Tribunal did not place significant weight on certain key facts – Where the applicant was found not to be a genuine temporary entrant – Application dismissed 

MIGRATION – Application for a Student (Temporary) (Class TU) visa – Review of Administrative Appeals Tribunal (“Tribunal”) decision – Allegation that the Tribunal’s decision was affected by jurisdictional error – Where the application was found not to be a genuine temporary entrant – Application dismissed 

MIGRATION – Distinguished talent (Residence) (class BX) (subclass 858) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – judicial review – application for extension of time – merit of proposed application – where Tribunal determined it had no jurisdiction to hear review application pursuant to s 348 of the Migration Act 1958 (Cth) – whether application ‘properly made’ – application form contained credit card details to facilitate payment of application fee – where Tribunal’s attempts to process application fee failed – where payment successful after prescribed period elapsed – whether application ‘accompanied by’ prescribed fee – meaning of ‘accompanied by’ – whether fee was ‘paid’ – whether Tribunal erred in finding application not properly made – application for extension of time refused  

MIGRATION – Safe haven enterprise (class XE) (subclass 790) visa – review of decision of the Immigration Assessment Authority (Authority) – judicial review – where Authority affirmed decision refusing applicant a visa – where Authority did not exercise discretion under s 473DC of the Migration Act 1958 (Cth) to obtain ‘new information’ – information gap – whether failure to exercise s 473DC discretion was unreasonable – whether Authority failed to consider relevant material – Authority overlooked relevant information – failure to exercise discretion legally unreasonable – Authority’s decision attended by jurisdictional error – writ of certiorari issued – writ of mandamus issued 

MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) – Whether the Tribunal erred in its consideration of evidence – Where the Tribunal incorrectly applied the Ministerial Direction – Court satisfied that the error is not material – Judicial review application dismissed with costs 

PRACTICE AND PROCEDURE – Application in a proceeding – application for a further amended statement of claim – pleads alleged misleading and deceptive conduct under Australian Consumer Law– need for precision – whether pleading confusing or embarrassing – whether pleading reveals a reasonable cause of action – pleading accessorial liability – whether the amended statement of claim should be accepted – whether leave to replead paragraphs struck out – matters to be considered 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa on basis of evidence that applicant gave or caused to be given bogus document in relation to visa application – applicant absent from Court hearing – dismissal for non-appearance.  

MIGRATION – Temporary Graduate (Class VC) Subclass 485 visa – application for review of a Registrar’s decision – application of the English language test requirement – where visa application not accompanied by evidence that applicant had sat English language test within three years before the day on which visa application made – where the applicant’s application was summarily dismissed – no reasonable prospects of success in the substantive application – application dismissed. 

MIGRATION – Urgent interlocutory injunction application – Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) visa – whether the Applicant should be granted an interlocutory injunction restraining the First Respondent from taking steps to remove the Applicant from Australia pursuant to section 198 of the Migration Act – found the Minister erred – interlocutory injunction granted.

INDUSTRIAL LAW – FAIR WORK – penalty hearing – failure to pay entitlements to employees – liability determined – first time offender – respondent remedied mistake before proceedings took place – calculation of penalty – matters to be considered 

MIGRATION LAW – Where the Authority was “not satisfied” that there were exceptional circumstances justifying the consideration of new information – where the Authority failed to properly carry out its role when considering whether there were exceptional circumstances justifying its consideration of new information – jurisdictional error established – application granted. 
 

MIGRATION – where the applicant granted a protection visa – where visa was subsequently cancelled pursuant to s 109 on basis of non-compliance with s 101 – where decision affirmed by the Tribunal - whether the Tribunal erred by failing to give proper consideration to the best interests of the Applicant’s children – where one of the children was an Australian citizen - the Tribunal failed to properly consider the best interests of the children – writs of certiorari and mandamus issued