Judgments

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 

MIGRATION – student visa – decision of the Administrative Appeals Tribunal – irrationality – whether the Tribunal misunderstood cl 500.212 of the Migration Regulations 1994 (Cth) – whether the Tribunal failed to consider the applicant’s circumstances and genuine intention to stay in Australia temporarily – no jurisdictional error established – application dismissed. 

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicant’s claims – whether the Tribunal failed to consider the complementary protection criteria – where the applicant elected not to attend a Tribunal hearing – no jurisdictional error established – application dismissed. 

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal provided the applicant with a fair opportunity to present her claims – procedural fairness – whether the Tribunal correctly applied s 36(2)(aa) of the Migration Act 1958 (Cth) – no jurisdictional error established – application dismissed. 

MIGRATION - Whether the Tribunal failed to adequately engage with cl 500.212 of Schedule 2 of the Regulations – whether the Tribunal took into account irrelevant considerations   

MIGRATION – judicial review of Administrative Appeals Tribunal’s decision refusing to grant the first applicant a Regional Employer Nomination (Permanent) (Class RN) visa on the basis that she did not meet cl 187.233(3) of Schedule 2 to the Migration Regulations 1994 (Cth) – applicant was not the subject of an approved nomination – review of registrar’s decision ordering summary dismissal on the basis that the claim for relief had no reasonable prospect of success – application for review dismissed. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant medical treatment visa – whether denial of procedural fairness – no jurisdictional error - whether grant of relief futile - application dismissed 

MIGRATION – Safe Haven Enterprise (subclass 790) visa – Immigration Assessment Authority – whether the Authority failed to afford the applicant procedural fairness – whether the Authority ignored relevant information – whether the Authority misconstrued and misunderstood the applicant’s claims – whether the Authority relied upon incorrect country information – grounds of review invite the Court to undertake impermissible merits review – Application dismissed.

MIGRATION – judicial review – where Administrative Review Tribunal affirmed delegate’s decision to refuse protection visas – where applicants claimed to fear persecution from loan sharks – where Tribunal not satisfied with applicants’ evidence of circumstances of loan or threats from loan sharks – Tribunal did not adopt legally unreasonable process of reasoning regarding alleged threats from loan sharks or availability of effective state protection measures – application dismissed 

MIGRATION – Temporary Graduate (Class VC) (Subclass 485) visa – applicant did not comply with the mandatory requirement for the grant of the visa – grounds of review invite the Court to undertake impermissible merits review – no jurisdictional error established – application dismissed.

MIGRATION – application for Regional Employer Nomination (Permanent) (Class RN) visa – the Tribunal on review refused to approve the employer’s nomination of the first applicant in the Direct Entry stream and accordingly refused to grant the applicants visa as there was no approved nomination – no jurisdictional error in the Tribunal’s decision not to approve the employer nomination – application dismissed

MIGRATION – application for student visa – copying of delegate’s findings by the Tribunal - whether Tribunal abrogated its statutory function - Tribunal erred by giving improper deference to decision of the delegate – Tribunal failed to bring its own mind to the determination of the correct or preferrable decision - appeal allowed – writ of certiorari issued – writ of mandamus issued

MIGRATION – Medical Treatment (Support Person) visa – contemporaneous hearing – whether the applicant met the requirements of the visa – where the grounds of judicial review do not reveal jurisdictional error – application dismissed with costs

MIGRATION – Medical Treatment (Class UB) Subclass 602 visa – whether the applicant genuinely intended to remain in Australia for the purposes of the visa – allegation of legal unreasonableness, irrationality or illogicality in the decision under review– where the grounds of judicial review do not reveal jurisdictional error – application dismissed with costs

MIGRATION – Medical Treatment (Class UB) Subclass 602 visa – whether the applicant genuinely intended to remain in Australia for the purposes of the visa – allegation of legal unreasonableness, irrationality or illogicality in the decision under review– where the grounds of judicial review do not reveal jurisdictional error – application dismissed with costs

BANKRUPTCY – Application for stay of sequestration order made by registrar pending hearing of application for review of registrar’s decision – applicable principles in considering whether to grant stay – whether arguable case – balance of convenience

PRACTICE AND PROCEDURE – Interim non-publication order

INDUSTRIAL LAW – Fair Work – penalty hearing – failure to comply with compliance notice – respondent has failed to defend proceedings with due diligence – liability determined – underpayment of one employee – first time offender – lack of cooperation by the respondent – calculation of penalty – matters to be considered.

INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – construction of enterprise agreements – relevant principles.

MIGRATION – Whether Immigration Assessment Authority erred in manner identified in MZZJO – whether Authority failed to properly understand claim of applicant to have converted to Christianity

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 – application for judicial review of a decision of the Administrative Appeals Tribunal – refusal of a bridging visa application – whether the Tribunal failed to consider the circumstances in which the applicant was unable to meet the criteria for the visa – whether the Tribunal’s decision was affected by legal unreasonableness – whether the Tribunal’s decision was otherwise affected by relevant error – futility – application dismissed

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)

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)

INDUSTRIAL LAW – FAIR WORK – application for default judgment – consideration of rr 13.04 and 13.05 of the Federal Circuit and Family Court of Australia (Division 2) General Federal Law) Rules 2021 (Cth) – alleged contraventions of ss 45 and 323(1) of the Fair Work Act 2009 (Cth) – serious contraventions found – application granted.

MIGRATION – Application to set aside order dismissing judicial review application – judicial review application dismissed for non-appearance – applicant claims not aware of hearing date – email address not one used by primary applicant – email address created by person assisting with drafting of judicial review application – whether adequate reason for non-appearance – whether reasonably arguable prospects of success on proposed grounds of review – whether loan agreement in Malaysia – credibility – whether findings unreasonable or illogical – whether weight given to allegations made – whether fraud on Tribunal in relation to non-appearance.

PRACTICE AND PROCEDURE – Application to set aside order dismissing judicial review application – considerations relevant to exercise of discretion to set aside dismissal order – whether adequate reasons for non-appearance – whether delay in making set aside application – whether prejudice to respondent – whether reasonably arguable prospects of success on proposed grounds of review

PRACTICE AND PROCEDURE – Proposed further amended application for judicial review – whether orders sought – whether submissions or commentary – whether further orders sought relate to set aside of dismissal order or judicial review application – whether furthers sought are orders capable of being made.

PRACTICE AND PROCEDURE – Statutory declaration not accepted for filing – where identical (or substantially so) statutory declaration previously rejected for filing.

MIGRATION – application for student visa – primary applicant failed to satisfy ‘genuine temporary entrant criterion’ – criteria in cl 500.211 to cl 500.218 of the Migration Regulations 1994 (Cth) required to be satisfied by at least one of the applicants – Tribunal decision not affected by jurisdictional error – application dismissed.

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA’s reasoning was relevantly open to the IAA based upon the material before it – application dismissed

MIGRATION – application for judicial review – decision of the AAT to not grant Protection (Subclass 866) Visa – whether the Tribunal was acting under dictation of a previous decision maker – whether the Tribunal had an independent mind – whether the Tribunal acted unreasonably or illogically in conducting its research – whether the Tribunal made findings based on speculation – no jurisdictional error established – application dismissed

MIGRATION – judicial review – decision of the Administrative Appeals Tribunal refusing to grant a student visa – where the decision of the Tribunal to not reinstate the application was unreasonable – confirmation decision squashed – matter remitted to the Tribunal - application for judicial review allowed

MIGRATION – application for review of Administrative Appeals Tribunal’s decision – student visa – Public Interest Criterion 4020 – jurisdictional error established.

PRACTICE AND PROCEDURE – application in a proceeding seeking an adjournment of a hearing date to enable the applicant to seek legal representation –application for an adjournment dismissed.

INDUSTRIAL LAW – Contraventions of s 340(1) of the Fair Work Act 2009 (Cth) – Pecuniary penalties and compensation – Whether applicant has suffered compensable loss because of the contravention – Measure of compensation – Compensation and Penalties ordered.

MIGRATION – Protection visa - Protection (Class XA) (Subclass 866) visa – Application for judicial review – Whether Administrative Appeal Tribunal failed to consider a claim that was tolerably clear from the materials – Whether well-founded fear of persecution – No jurisdictional error – Application dismissed.

MIGRATION - Protection (Class XA) (Subclass 866) visa – Application for judicial review – Whether Administrative Appeals Tribunal failed to consider relevant evidence – Whether Administrative Appeals Tribunal failed to give the applicant opportunity to present evidence – Whether well-founded fear of persecution – No jurisdictional error – Application dismissed.

MIGRATION – application for judicial review – Safe Haven Enterprise visa – where Immigration Assessment Authority affirmed decision of first respondent – whether the Authority considered irrelevant country information – whether the Authority failed to consider relevant extracts of country information – found the Authority had regard to relevant country information – found no jurisdictional error – application dismissed.

MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa – Summary dismissal - Application for review of Registrar’s decision – Application for an extension of time – Extension granted – Rule 21.02(2) – Review allowed - Application for judicial review reinstated.

MIGRATION - Elderly female applicant whose only child now lives in Australia, with allegedly no next of kin in country of origin - whether Tribunal erred in considering existence of exceptional circumstances in assessing whether met cl 600.215 of Schedule 2 to the Migration Regulations – where no error even if Court may have concluded differently on facts – Ministerial intervention

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa - Tribunal dismissed application on the basis of applicant’s non-appearance at Tribunal hearing - Whether Tribunal validly invited the Applicant to appear - Whether Tribunal exercised its discretion reasonably – no jurisdictional error established – application dismissed. 

BANKRUPTCY – Application to set aside or stay a bankruptcy notice pending pursuit of separate proceedings – where notice itself is not subject of challenge – whether applicant has a counter claim, set off or cross demand – whether the bankruptcy notice constitutes an abuse of process – whether time for compliance with the bankruptcy notice should be extended – application dismissed.

MIGRATION- Student visa – decision of the Administrative Appeals Tribunal – incorrect information provided by applicant – procedures of Tribunal - unreasonableness - failure to take into account relevant considerations – application dismissed 

MIGRATION- Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider cogent evidence – grounds not particularised- where contradictory evidence-no jurisdictional error-application dismissed 

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – whether the Tribunal misconstrued significant harm – whether the Tribunal failed to investigate the applicant’s claims – whether the Tribunal denied the applicant procedural fairness – jurisdictional error not established – application dismissed with costs. 

MIGRATION – Judicial Review – Administrative Appeals Tribunal – Protection visa – Bangladesh –whether the Tribunal failed to engage in genuine and realistic consideration of the applicant’s claims and/or failed to consider an integer of his claims – whether the Tribunal failed to comply with s 424A or s 424AA to put adverse information to the applicant – whether the Tribunal’s finding that the applicant had not been subject to false cases in Bangladesh lacked rational and logical support and was formed on mere assumptions and/or was irrational, illogical or unreasonable – whether the Tribunal’s breach of s 418 constitutes jurisdictional error – application dismissed