Judgments

MIGRATION – where applicant provided “bogus document” as evidence of his identity – whether applicant had reasonable explanation for providing the bogus document – whether Tribunal erred in failing to consider merits of matter where satisfied s 91WA of the Act prevented grant of the protection visa sought 

MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – applicant provided new information to Authority - whether Authority erred in deciding that it must not consider new information  COSTS – whether court should make order for costs against lawyer 

MIGRATION – student visa – judicial review – where applicant consented to the Tribunal deciding the application for review without conducting a hearing – whether Tribunal’s invitation to applicant to provide information was liable to mislead the applicant into believing that all information had to be in writing – invitation not likely to mislead applicant – genuine temporary entrant criterion – application dismissed

MIGRATION – judicial review – decision of delegate refusing to grant visa – applicant absent from Court hearing – dismissal for non-appearance 

MIGRATION– Application for reinstatement of application for review of registrar’s decision – orders made dismissing proceedings for non-appearance at hearing – application for review requires extension of time of 12 days – Registrar summarily dismissed the application for judicial review – Tribunal refused to grant Temporary Graduate (Post-Study Work) (subclass 485) visa – study requirement pursuant to cl 485.231(3) not satisfied – reasons for nonappearance, delay and merits of substantive application do not warrant reinstatement – application dismissed with costs 

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – 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 – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – distinction between stages of Authority assessing under s 473DD whether new information could be considered and, where new information could be considered, determining whether new information should be accepted as true or correct - application dismissed  

MIGRATION – Judicial review – Safe Haven Enterprise visa – whether denial of procedural fairness because of failure to consider new claims and evidence – whether claims concerning mental health overlooked in making complementary protection assessment – whether failure to consider relevant material – whether report concerning mental health symptoms ignored – whether disbelief of claim concerning applicant’s wife’s sister being a Liberation Tigers of Tamil Eelam cadre was unreasonable – whether failure to enquire concerning undisclosed claims – whether conclusions on various claims illogical – claims concerning release from jail, protection of another person’s identity, political affiliations and mental anxiety – whether illogical and incorrect conclusion concerning rival political group’s interest in and activities concerning applicant – whether irrelevant considerations taken into account and illogical conclusion reached concerning applicant’s claimed political views – whether conclusions based on non-existent facts concerning applicant’s links with Liberation Tigers of Tamil Eelam, release from jail and adequacy of mental health services in Sri Lanka – whether jurisdictional error  EVIDENCE – Where further affidavit containing new evidence – admission of fresh evidence in judicial review proceedings – where purpose is to have the Court remake existing findings of fact by an administrative decision  maker – whether evidence admissible. 

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 – 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 – 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. 

MIGRATION – Regional Employer Nomination (Permanent) (subclass 187) visa – judicial review of a decision of the Administrative Appeals Tribunal – procedural fairness – issues arising in relation to the decision under review – no jurisdictional error established – application dismissed 

MIGRATION LAW – application for judicial review of a decision of the Administrative Appeals Tribunal to not grant a student visa – no error in the Tribunal’s consideration of the genuine temporary entrant criterion –  application dismissed with costs  

ADMINISTRATIVE LAW – Review of decision to refuse to grant Australian citizenship – Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether delegate misconstrued or misapplied relevant legislation when determining whether applicant was born to a former Australian citizen who ceased to be an Australian citizen pursuant to the operation of s 17 of the Australian Citizenship Act 1948 (Cth) – whether delegate failed to consider legal submissions – whether delegate’s incorrect reference to applicable legislation amounts to error – no error established – application dismissed.

BANKRUPTCY – Application made by Trustee of the bankrupt estate seeking possession of land and other orders - Where no statement of affairs filed by the Bankrupt – Refusal to deliver possession of land – Mandatory injunctions. 

MIGRATION – Subclass 866 (Protection) visa – visa cancellation under s 109 – where the Tribunal found the applicant gave false information – where the Tribunal found the applicant should have provided both names that he is known by – whether the decision-maker made a finding based on an irrational or illogical reasoning process 

MIGRATION – Protection (subclass 866) visas – Administrative Review Tribunal – four grounds of judicial review – whether the Tribunal failed to afford the applicant’s procedural fairness – whether the Tribunal erred in applying country information – whether the Tribunal erred in making the findings without supporting evidence – whether the Tribunal failed to provide the applicant’s opportunity to make further submission in regard to their claims – no grounds of judicial review have merit –Application dismissed 

MIGRATION - Cancellation of Subclass 866 Protection Visa – Application for judicial review – Whether an extension of time to commence an application should be granted – Extension granted – Whether there was a material jurisdictional error by Tribunal – Whether the findings of the Tribunal were factually incorrect – Whether there was jurisdictional error in the exercise of discretion - Application dismissed. 

MIGRATION – application for judicial review – decision of the AAT to not grant Protection (Subclass 866) Visa – whether the Tribunal failed to consider claims and evidence– whether there was a denial of procedural fairness– findings were open to the Tribunal – merits-based arguments made - no jurisdictional error established – application dismissed 

PRACTICE & PROCEDURE – Pleadings – late application for leave to amend – amendment sought before evidence filed. 

CONSUMER LAW – matter arising under the Personal Property Securities Act 2009 (Cth) – application for orders sanctioning seizure and recovery of vehicle pursuant to security agreement – where respondents have defaulted – security interest registered under the PPSA – Declaration that applicant is entitled to take possession of the vehicle – Orders made for the applicant to recover vehicle if not delivered by the respondents 

BANKRUPTCY – Trustee’s application for security for costs – undischarged bankrupt residing overseas seeking annulment – no evidence Bankrupt could pay an order for costs – no identifiable sources of funds available to the Bankrupt in Australia – exercise of discretion warranted 

CONSUMER LAW – Personal property securities - application by a secured party to a security agreement within the meaning of s 10 of the Personal Properties Securities Act 2009 (Cth) (PPS Act) against a person (third person) who is not a party to the security agreement for an order of possession of a vehicle that is the subject of a security interest created by the security agreement – whether s 123(1) of the PPS Act is a source of power for making an order for possession against the third person – s 123(1) not a source of power – whether the Federal Circuit and Family Court of Australia (Division 2) (Court) otherwise has jurisdiction to make an order requiring the third person to deliver the vehicle to the secured party – as a court of law and equity and also pursuant to s 93 of the Civil Procedure Act 2005 (NSW) (CP Act) (as picked up by s 79 of the Judiciary Act 1903 (Cth)) the Court has jurisdiction to order possession on an action for detinue or to make an equitable order for specific delivery of the vehicle if the requirements for the making of such orders are otherwise established – whether the remedy provided by s 93 of the CP Act is inadequate in the circumstances of this case – such remedy is inadequate – order made in the exercise of the Court’s equitable jurisdiction requiring the third party to deliver the vehicle to the secured party.

INDUSTRIAL LAW – Fair Work – general protections – where applicant alleges that adverse action was taken by respondent in response to his exercise of workplace rights – where respondent’s case is that the applicant was dismissed due to serious misconduct relating to a leak of confidential information and failure to participate in meetings and a medical examination – where respondent led evidence from person held out as sole decision maker – where evidence of decision maker unreliable – where process adopted by respondent procedurally and substantively flawed – where respondent failed to produce documents related to the investigation of the alleged leak of confidential information – finding that respondent failed to discharge reverse onus under s 361(1) of the Fair Work Act 2009 (Cth) – contravention of s 340(1) of the Fair Work Act established  

INDUSTRIAL LAW – Fair Work – applicant disputes classification under the relevant awards – where applicant alleges that his incorrect classification resulted in underpayments throughout his employment – consideration of the Clerks - Private Sector Awards 2010 and 2020 – finding that applicant was incorrectly classified during period of permanent employment and thus underpaid       

MIGRATION – habeas corpus – costs – respondents capitulating by giving the applicant a bridging visa part way through trial – whether indemnity costs appropriate – whether costs in this proceeding should be set-off against costs in earlier proceedings

MIGRATION – partner (temporary) (class UK) and partner (temporary) (class BS) visa – decision of the (then) Administrative Appeals Tribunal – no appearance by or on behalf of the applicant – oral application to dismiss pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – application dismissed with costs

FAMILY LAW – Parenting – one child, aged two – where the child has lived with the mother and spent very limited time with the father since separation – where the father has a history of family violence stemming from his volatile, aggressive and dysregulated behaviour – where the father has a long history of mental health issues – where the father chose to cease his supervised visits with the child in January 2022 – where the mother and ICL seek a “no time and no communication” order – where the father seeks that the child live with him and spend regular time with the mother – where the father would rather spend no time with the child than accept any order for supervision – where the Court must determine whether or not the father poses an unacceptable risk of harm for the child – best interests.

FAMILY LAW – Property – where the parties agree that the combined net assets come in at under $1M – where the Court must consider the contributions and the allowance (if any) for future needs – where the wife seeks an 80% - 20% division – where the husband seeks an approximately equal division – just and equitable. 
 

MIGRATION – application for extension of time – judicial review – protection visa refusal – Tribunal dismissal for non-appearance – s 426A(1A) Migration Act 1958 (Cth) – failure to engage with discretion to decide on papers or adjourn – lengthy delay – inadequate explanation – whether arguable case of jurisdictional error – extension refused 

MIGRATION – Application for judicial review of decision made by the Administrative Appeals Tribunal – student visa – whether the Tribunal erred in affording procedural fairness – whether the Tribunal’s decision was unreasonable – no jurisdictional error established – application dismissed.  

INDUSTRIAL LAW – application for an extension of time to bring a claim under s 370 of the Fair Work Act 2009 (Cth) – multiple requests for adjournment – no appearance by or on behalf of the applicant – oral application to dismiss pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – application dismissed 

MIGRATION – student visa – refusal to grant Student (Subclass 500) visa – whether Tribunal erred in applying Genuine Temporary Entrant criterion – whether Tribunal failed to consider inability to obtain Confirmation of Enrolment – whether Tribunal failed to afford procedural fairness – no jurisdictional error – application dismissed 

MIGRATION – costs – indemnity costs – costs sought above scale – Calderbank offer by applicants – costs awarded to the applicants above scale amount

CONSUMER LAW – Chattel mortgage of motor vehicle (“Vehicle”) – security interest registered under the Personal Property Securities Act 2009 (Cth) – application for orders sanctioning seizure of Vehicle.  

BANKRUPTCY – Registrar’s sequestration order – Application for review. 

INTELLECTUAL PROPERTY – form of declaration to make to give effect to a finding of trade mark infringement – costs – whether indemnity costs should be ordered against the successful applicant after the dates by which offers to settle the proceeding were available to be accepted had passed – indemnity costs not ordered because the relief the applicant obtained was not less favourable than the terms of the offers and it was otherwise not unreasonable for the applicant to refuse to accept the offers – whether the respondents should be ordered to pay the applicant’s costs on an indemnity basis – respondents not to pay costs on an indemnity basis – whether lump sum costs order should be made – lump sum costs order made.

DEFAMATON – JURISDICTION – Whether the Court has jurisdiction as to the Applicant’s defamation claim –Where Applicant has regularly invoked the court’s jurisdiction as to a claim under the Trade Marks Act 1995 –Held defamation claim a severable claim from the Trade Marks Act claim and not part of a single justiciable controversy – Held no jurisdiction as to the defamation claim. DEFAMATION – EXTENSION OF TIME – Held court would not in any event extend time for the commencement of the defamation action. PRACTICE AND PROCEDURE – ABUSE OF PROCESS – Whether the Trade Marks Act application is an abuse of process  because the  application seeks to vex twice the First Respondent as to allegations of infringements of registered trade marks when another court has dismissed the allegations as part of the dismissal of a defence to a defamation action between the same parties in the Victorian courts – Held not an abuse of process for the Applicant to pursue claims as to infringements of trade marks raising different factual allegations. PRACTICE AND PROCEDURE – SECURITY FOR COSTS – Whether the court ought to order security for costs in favour of the Fifth Respondent – Applicant impecunious and has a weak case against the Fifth Respondent – Order for security  

MIGRATION – student (class TU) (subclass 500) visa – where delegate refused to grant the applicant a visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – where Tribunal affirmed the delegate’s refusal – where applicant failed to satisfy cl 500.211 of the Migration Regulations 1994 (Cth) – applicant not enrolled in a registered course of study – whether applicant denied procedural fairness – 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 – whether the Tribunal failed to perform the statutory task imposed on the Tribunal under s 414 of the Migration Act 1958 (Cth) – whether the Tribunal denied the applicants procedural fairness by not putting the applicants on notice that the Tribunal may form the view the first applicant had “tailored” his evidence – no jurisdictional error – 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 – Where non-disclosure certificate issued the existence of which was not initially disclosed to applicant which failure was found on judicial review to be in error – on remittal to Tribunal second non-disclosure certificate issued and then revoked – first non-disclosure certificate remained extant – whether applicant denied procedural fairness – whether Tribunal under obligation to proactively provide documents the subject of revoked non-disclosure certificate 

MIGRATION – Bridging Visa E – costs of challenging condition 8510 attached to visa – Minister conceding it was invalidly imposed – whether indemnity costs appropriate – quantum of costs reasonably incurred.   

MIGRATION - Application for judicial review of a decision of the Administrative Appeals Tribunal – refusal to grant the applicant a Visitor (Class FA) (subclass 600) visa – Tribunal found the applicant in providing spiritual healing was working in breach of a previous visa condition 8101 – meaning of “work” in reg 1.03 as activity that normally attracts remuneration - whether the activity performed by the applicant was such that normally attracts remuneration – no jurisdictional error – application dismissed PRACTICE AND PROCEDURE – permitted a friend of the applicant to make submissions on her behalf in recognition of the extension of the concept of a Mckenzie friend 

MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – refusal to grant the applicant a Medical Treatment (Visitor) (Class UB) visa – whether the Tribunal’s decision was legally unreasonable – whether the Tribunal incorrectly dealt with the evidence – whether the applicant was denied procedural fairness – no jurisdictional error – application dismissed 

MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal - refusal to grant a Partner (Residence) (Class BS) visa – family violence exception – whether the Tribunal in order to accord procedural fairness was required to raise with the first applicant the deficiencies in the evidence put forward as to a non-judicially determined claim of family violence – whether the Tribunal failed to comply with s 360 of the Migration Act 1958 (Cth) – whether the issue was apparent from its nature or from the terms of the legislation under which it was made – no jurisdiction error – application dismissed.

MIGRATION – student (class TU) (subclass 500) visa- review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – judicial review – genuine temporary entrant criterion – where Tribunal purported to apply Direction No. 69 made under s 499 of the Migration Act 1958 (Cth) (Act) – whether Tribunal failed to engage with relevant considerations under that Direction – whether Tribunal failed to comply with s 499(2A) of the Act – Tribunal’s decision attended by jurisdictional error – writ of certiorari issued – writ of mandamus issued 

INDUSTRIAL LAW – Where applicant alleged adverse action taken for a prohibited reason – where adverse action conceded – whether first respondent was involved in a contravention of the Fair Work Act – whether the second respondent was knowingly concerned in or a party to a contravention of the Fair Work Act – where the claim against the first respondent had been established – where the claim against the second respondent had not been established – orders accordingly. 

MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) - protection visa – applicant unrepresented - whether the Tribunal misconstrued the definition of significant harm – whether the Tribunal failed to consider the applicant’s claims against the “Convention definition” – no jurisdictional error established – application dismissed. 

INDUSTRIAL LAW – COSTS – Small claims proceeding in Fair Work Division – whether misunderstanding of party that proceedings were listed for final hearing instead of further directions was an unreasonable act for purposes of s 570 of the Fair Work Act – whether existence of legal advisors not on record, and without leave to represent party, can give rise to a party incurring costs for purposes of s 570 of the Fair Work Act especially in small claims proceeding INDUSTRIAL LAW – Review of Registrar’s decision awarding costs to unrepresented litigant in small claims proceeding where leave neither sought nor granted for legal representation
 

INDUSTRIAL LAW – Commonwealth public service employment – Defence – Navy – contracting – various contraventions alleged -  request for flexible working arrangement – unauthorised absences from work – refusal of request to take paid annual leave – failure to pay notice or payment in lieu of notice of three weeks pay – failure to pay base rate of pay – various adverse actions alleged – coercion and undue pressure in relation to request for flexible working arrangements – coercion in relation to written notice of annual leave – coercion in relation to taking of annual leave – termination of employment – refusal to allow work from home – denial of request to start work later – manner of supervision – allocation of less meaningful tasks – exclusion from training activities – issuance of various instruction letters – referral of conduct to Directorate of Conduct and Performance – performance assessment outcome PRACTICE AND PROCEDURE – Application for an extension of time to file an affidavit – extension of time – factors for consideration – where short extension of time not objected to – whether sufficient explanation for delay – no prejudice in short extension of time – whether affidavit assists with merit of application PRACTICE AND PROCEDURE – Application for witness to give evidence by video link – delay in making application – whether disruption to duties of witness – where witness a carer for family member – whether evidence of need for and extent of care – case management considerations – length and complexity of evidence of witness – where lengthy cross-examination likely – costs of giving evidence in person PRACTICE AND PROCEDURE – Application for access to audio recordings of first three days of substantive hearing