Judgments

MIGRATION – Judicial review – decision not to grant a Student (Temporary) (Class TU) visa – dismissal for non-appearance

MIGRATION – Safe Haven Enterprise Visa – decision of the Immigration Assessment Authority – whether failure to properly apply s 36(2A) in determining no risk of suffering serious harm – whether failure to fully or properly consider likelihood of harm – whether failure to consider applicant’s relationship to receiving country – whether IAA was required to consider welfare and safety of the applicant – whether need to consider new information in accordance with s 473DD – no jurisdictional error – application dismissed

MIGRATION – Protection Visa – Where the Authority did not fail to consider a claim as to whether the First Applicant’s husband was suspected of involvement in the LTTE – Where the Authority’s assessment of a letter from the First Applicant’s husband complied with s. 473DD and was not unreasonable in the legal sense – Where the Authority did not misconstrue its statutory task by imposing an onus of proof on the Applicants – Where the Secretary did not comply with a duty under s. 473CB(1)(c) to give relevant information from an invalid visa application to the Authority but the failure was not material to the result – Where the Authority made an assessment of “new information” as to an ICRC Detention Attestation under s. 473DD(b)(ii) of the Act and its conclusion was not unreasonable in the legal sense – Application dismissed

MIGRATION – Student (Subclass 500) visa refused –Applicant had given or caused to be given false or misleading information in a material particular in a visa application in the 12 month period before application made – Genuine Temporary Entrant criteria not met – Public Interest Criteria not met – No compelling or compassionate circumstances to allow waiver of public interest criteria –Administrative Appeals Tribunal affirmed delegate’s decision – Judicial review of Tribunal’s decision – Whether Tribunal failed to differentiate between the two limbs of public interest criteria and treated as one criteria –Whether Tribunal applied the wrong test – Whether Tribunal provided adequate reasons for its decision-no jurisdictional error – Application for judicial review dismissed

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether failure to consider claims – whether applicant given sufficient opportunity to present his case – no jurisdictional error established – application dismissed

MIGRATION – protection visa application – applicant’s non-attendance at final hearing – application dismissed pursuant to r13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021

MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) – protection visa – claim of public interest immunity upheld – whether the Tribunal made a decision so unreasonable that no reasonable person would have made it – whether Tribunal erred by not adjourning or offering to adjourn hearing to enable applicant to obtain legal advice regarding issue of self-incrimination – whether the Tribunal erred by not making obvious inquiries about critical facts – no jurisdictional error established – application dismissed

MIGRATION – Judicial Review – Partner Visa – Applicant not the holder of a substantive visa at the time of or 28 days before application – where Tribunal did not find compelling reasons to waive that requirement – application dismissed – costs awarded against the applicant and applicant’s legal representative

MIGRATION – Legal Practitioners– conduct of legal practitioner before the Court - citation of cases and quotes from Tribunal decision which do not exist – case citations generated by an artificial intelligence program – practitioner afforded an opportunity make submissions as to why he should not be referred to the Office of the NSW Legal Services Commissioner – Referral made

PRACTICE AND PROCEDURE – application for an extension of time to seek review of an exercise of power by a Registrar – where a Registrar summarily dismissed the applicants’ judicial review application – extension of time refused.

INDUSTRIAL LAW – application for civil penalty –contraventions of enterprise agreement under Fair Work Act 2009 (Cth) – agreed penalty – appropriate penalty

BANKRUPTCY – application for possession of property – applicant is trustee of the bankrupt estate of the respondent – applicant seeks vacant possession of the property – application proceeded on an undefended basis – orders for the respondent bankrupt to vacate the property – warrant of possession of property issued.

MIGRATION - Student (Temporary) (class TU) (Subclass 500) visa – Administrative Appeals Tribunal – application for judicial review – no jurisdictional error established – application dismissed

MIGRATION – Protection visa – application for judicial review – whether Tribunal failed to conduct the statutory task – role of the Court - application dismissed with costs.

BANKRUPTCY – Review of registrar’s decision to make a sequestration order – hearing de novo – sequestration order set aside – creditor’s petition to be heard on a date to be fixed.

MIGRATION – Application for judicial review of a decision made by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – where the applicant made a general and unparticularised assertion of jurisdictional error – where the applicant asserted that the Tribunal decision was based on personal opinion and not evidence – no jurisdictional error established – application dismissed.

MIGRATION – Protection (Class XA) (Subclass 866) visa – application for review of Registrar’s decision – application for extension of time to seek judicial review - whether adequate explanation for delay – no reasonable prospects of successfully prosecuting application – application dismissed.

MIGRATION – application for an urgent interlocutory injunction to restrain the Minister from removing the applicant from Australia pending the outcome of his judicial review application – whether there is a serious question to be tried – whether balance of convenience favours grant of injunction – injunction granted.

MIGRATION – extension of time application – explanation of delay is unsatisfactory – no jurisdictional error established

MIGRATION – Judicial review application – Immigration Assessment Authority decision – citizen of Pakistan – whether constructive failure to exercise jurisdiction by failing to engage with claims of cyclical violence in the Kurram District – whether material jurisdictional error – writs issued

MIGRATION - Immigration Assessment Authority - Safe Haven Enterprise (class XE) (subclass 790) visa – Whether the Authority failed to give proper and genuine consideration to the applicant’s evidence

MIGRATION – Administrative Appeals Tribunal – Regional Employer Nomination (Permanent) (Class RN) visa – substantive judicial review application –application for review of a judicial Registrar’s decision to set aside order as to costs refused – should costs follow the event – where the applicant’s legal representative withdrew from substantive proceedings – whether the applicant had standing to challenge a Nomination decision – whether the applicant met cl 187.233 of the Migration Regulations 1994 (Cth) – application dismissed.

MIGRATION – application for judicial review of decisions of Administrative Appeals Tribunal – where delegate refused application for Employer Nomination Scheme visa – where Tribunal dismissed application for review due to non-attendance at hearing – where dismissal confirmed – whether visa application validly withdrawn prior to delegates decision – whether withdrawal lodged by applicants nominated recipient constituted valid withdrawal – construction of s 49 of the Migration Act considered - whether applicant gave authority for withdrawal – held withdrawal was effective – Tribunal lacked jurisdiction where visa application had been withdrawn

HUMAN RIGHTS – Public interest immunity claim – Risk of inadvertent disclosure – Possibility of harm to the public interest - Claim upheld.

MIGRATION – Refusal to grant student visa – application for judicial review - Tribunal request for information-failure to supply information requested- Tribunal affirmed delegate’s decision without hearing -denial of natural justice and procedural fairness – unreasonable decision – application dismissed with costs.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal – whether applicant satisfied clause 500.212 – no jurisdictional error established – application dismissed.

MIGRATION – application for judicial review of decisions of Administrative Appeals Tribunal – where delegate refused application for Employer Nomination Scheme visa – where Tribunal dismissed application for review due to non-attendance at hearing – where dismissal confirmed – whether visa application validly withdrawn prior to delegates decision – whether withdrawal lodged by applicants nominated recipient constituted valid withdrawal – construction of s 49 of the Migration Act considered - whether applicant gave authority for withdrawal – held withdrawal was effective – Tribunal lacked jurisdiction where visa application had been withdrawn

MIGRATION – Judicial Review – whether Tribunal erred in finding that information given was false or misleading in a material particular – material particular – whether Tribunal failed to consider and give appropriate weight to evidence – absence of approved nomination – futility – no jurisdictional error established – application dismissed.

BANKRUPTCY – Review of registrar’s decision to make a sequestration order – hearing de novo – sequestration order set aside – creditor’s petition to be heard on a date to be fixed.

MIGRATION – Judicial review of a decision of the Administrative Appeals Tribunal to not grant the Applicant a Protection (Subclass 866) visa – protection claims relating to loan sharks – Tribunal found the applicant had not provided any supporting evidence – adverse credibility findings – whether the Tribunal provided a meaningful hearing – what constitutes an oral statement pursuant to s 430D(2)(a) of the Migration Act 1958 (Cth) – where the oral statement departs from the written statement – whether the Tribunal’s decision was illogical, irrational or unreasonable – whether the applicant was put on notice of issues arising in relation to decision under review – Tribunal’s decision affected by jurisdictional error – application granted – writs issued 

MIGRATION – Immigration Assessment Authority – the Authority refusing to consider new information – whether the Authority considered whether the new information was capable of being believed – whether the Authority’s determination that the new information, a UNP membership card, was not genuine, was tantamount to determining that it was not capable of being believed.

MIGRATION – review of a decision of the Administrative Appeals Tribunal – training visa – whether the Tribunal erred in stating it had no jurisdiction –procedural fairness – no jurisdictional error established – application dismissed.

MIGRATION  — Judicial review  — protection visa  — non appearance of applicant  — default judgment —  leave for notice of discontinuance refused —  application dismissed

MIGRATION – Administrative Appeal Tribunal - protection visa (class XA) (subclass 866) – Review of a Registrar’s decision where the matter was dismissed for non-appearance – grounds of judicial review have no merit – application dismissed with costs.

MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal affirming a decision to refuse to grant the applicants employer nomination (permanent) visas – whether the Tribunal misunderstood or misapplied the test in Public Interest Criterion 4007(2) – whether the Tribunal constructively failed to exercise its jurisdiction – jurisdictional error established – writs issued.

MIGRATION – application for an extension of time in which to seek review of a summary dismissal decision made by a Registrar – relevant considerations – where the substantive application had no reasonable prospects of success – application dismissed

MIGRATION – Student (Temporary) (Class TU) (subclass 500) visa – review of a decision of the Administrative Appeals Tribunal – failure to consider according to law – failure to take into account considerations – misconstruing or misapplying an expression – no jurisdictional error established – application dismissed/ application allowed.

MIGRATION – Protection (Class XA) (Subclass 866) visa – judicial review of a decision of the Administrative Appeals Tribunal – failure to consider relevant material – considering irrelevant material – failure to afford procedural fairness – no jurisdictional error established – application dismissed.

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA misapplied s 473DD of the Migration Act 1958 (Cth) in the manner contended by the applicant – whether the IAA unreasonably failed to consider obtaining further information – whether the IAA failed to consider an integer of the applicant’s claim(s) – application dismissed

MIGRATION – student (subclass 500) visa – review of the decision of the (then) Administrative Appeals Tribunal (AAT) refusing to grant the first applicant a student visa – refusal to grant the second and third applicants visas as members of the family unit – where Tribunal found first applicant was not enrolled in a course of study – where first applicant provided an offer of admission of study – where offer of admission was conditional on student visa approval from AAT – whether Tribunal unreasonably refused to adjourn hearing to allow the first applicant to obtain a confirmation of enrolment – whether Tribunal denied the applicants procedural fairness – Tribunal’s decision attended by jurisdictional error– writ of certiorari issued – writ of mandamus issued

MIGRATION – Student (Temporary) (class TU) (subclass 500) visa – judicial review of a decision of the Administrative Appeals Tribunal – failure to afford procedural fairness – failure to consider circumstances relevant to genuine temporary entrant criterion – no jurisdictional error established – application dismissed

MIGRATION – Immigration Assessment Authority – the Authority refusing to consider new information – whether the Authority considered whether the new information was capable of being believed – whether the Authority’s determination that the new information, a UNP membership card, was not genuine, was tantamount to determining that it was not capable of being believed.

INDUSTRIAL LAW – Fair Work – Liability and penalty hearing – Failure to comply with issued Compliance Notice – First Respondent placed into liquidation in February 2024 – Calculation of penalty – Consideration of deterrence – Where the hearing proceeded undefended – Matters to be considered

CONSUMER LAW –– Costs – Applications in a Proceeding – compliance with subpoenas – costs of the second respondent in the schedule amount to be paid – costs between the applicant and first respondent reserved.

BANKRUPTCY – application under s.55(3B) of the Bankruptcy Act 1966 for direction to Official Receiver to accept or reject a debtor’s petition in circumstances where a creditor’s petition against a group of debtors was filed – debtor subsequently giving an authority to a trustee under s.188 of the Act – whether the application under s.55(3B) of the Act is stayed by force of s.188AAA of the Act because that application is related to a creditor’s petition.

HUMAN RIGHTS – Public interest immunity claim – Risk of inadvertent disclosure – Possibility of harm to the public interest - Claim upheld.

INDUSTRIAL LAW – Fair Work – application for compensation and pecuniary penalties alleging serious contraventions of the Fair Work Act – where applicant performed work for putative employer over two distinct periods – whether applicant was employed or engaged in unpaid work experience – whether employment was continuous - where the arrangement between the parties had a migration purpose – where applicant was employed for one of the two periods – whether the respondents required the applicant to pay money to fund the costs of her employment – whether employee subjected to undue influence or pressure - where payments made by the applicant to the respondent – whether by reason of employee’s payments the employer discharged obligations under relevant Award and statutory obligations – determination of effective date of termination – where arrangement after termination intended to give impression of ongoing employment – contraventions of Fair Work Act found – accessorial liability of business owner - declarations made

MIGRATION – Skilled (Provisional) (Class VC) (Subclass 485) visa – decision of Administrative Appeals Tribunal – Tribunal affirming delegate’s decision not to grant a visa – whether the applicant’s qualifications were closely related to his nominated skilled occupation pursuant to cl 485.222 of the Migration Regulations 1994 (Cth) – whether the Tribunal gave adequate reasons for its decision –– whether the Tribunal failed to exercise its review jurisdiction – application dismissed

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal affirming decision not to grant a visa – protection claim relating to alleged debts – allegation person assisting applicant with visa application failed to include relevant information – whether there was third party fraud on the Tribunal – whether issues with the interpretation of the Tribunal proceedings gave rise to material unfairness – whether the Tribunal overlooked the applicant’s claims – adverse credibility findings – no jurisdictional error – application dismissed

MIGRATION – Student (Subclass 572) visa – decision of Administrative Appeals Tribunal – where the applicant failed to maintain enrolment in a registered course for a period in excess of 12 months – where delegate determined that applicant breached condition 8202 and cancelled the visa pursuant to s 116 of the Migration Act 1958 (Cth) – where cancellation decision was affirmed on review – no jurisdictional error – application dismissed