Judgments

INDUSTRIAL LAW – restaurant industry – application for relief in relation to alleged contraventions of general protections and various minimum entitlement, regular payment and payslip obligations under the Fair Work Act 2009 (Cth) – application for default judgment– where Respondent has not entered an appearance nor participated in proceedings despite being afforded numerous opportunities – declarations made and partial relief ordered on default. 

INDUSTRIAL LAW – Where in the primary judgment the court made declarations that there were three contraventions of civil penalty provisions of the Fair Work Act as to the non-payment of notice, redundancy pay and accrued and unused annual leave – Where the contraventions resulted from a lack of care rather than a deliberately flouting of legal obligations – Where the First Respondent took reasonably prompt corrective action – An order for a penalty of 7.5% of the maximum penalty for each contravention was appropriate to meet the objectives of specific and general deterrence 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal failed to consider evidence – whether Tribunal failed to consider claim - no jurisdictional error – application dismissed  

MIGRATION – Application for extension of time - where Minister opposed extension from commencement of hearing until filing of written submissions more than 6 years later - Whether Immigration Assessment Authority erred by failing to consider evidence, failing to seek information from applicant and/or failing to invite applicant to interview

MIGRATION – extension of time application to review a decision of the Administrative Appeals Tribunal – relevant considerations – extension of time refused.  

PRACTICE AND PROCEDURE – Application for transfer of proceedings to the Federal Court of Australia  

MIGRATION – Judicial Review – Administrative Appeals Tribunal decision – citizen of Sri Lanka – refusal of protection visa – whether failure to analyse or consider issue of significant harm – whether final decision contrary to the evidence – whether failure to properly evaluate the evidence – whether too much weight given to prior Australian criminal record – whether failure to consider relevant legislative provisions – whether decision contrary to expectations of the Australian community and lawmakers – whether error in findings as to information provided to support claims made – whether error made as to accessibility of video material provided by the applicant – whether error made as to availability of police complaint from Sri Lanka – whether error made in assessment of credibility – whether unreasonableness in relying on findings concerning false documents in earlier  protection visa application by the applicant – whether error in relation to assessment of criteria concerning serious crime – obligations concerning consideration of a valid application for protection and  assessment of refugee and complementary protection criteria before considering any other criteria - whether jurisdictional error.  

PRACTICE AND PROCEDURE – Adjournment – adjournment of first Court hearing – unsuccessful in obtaining pro bono assistance – self-represented – applicant not appreciating the necessity to make submissions at hearing – no written submissions filed – no sensible or considered oral submissions  

WORDS AND PHRASES – “must”

MIGRATION – Protection visa – application for extension of time for judicial review of decision of the Administrative Appeals Tribunal – where applicant had previously sought review of Tribunal’s decision – where applicant failed to disclose previous judicial review proceedings – failure to comply with s 486D – whether application incompetent – extension of time refused – application dismissed. 

PRACTICE AND PROCEDURE – Where updated contact details were made known to Court by solicitor for first respondent – address for service can only be changed by a method provided for in Court Rules

MIGRATION – Whether Immigration Assessment Authority ignored relevant material or acted illogically or unreasonably in fact finding – adjournment application refused 

MIGRATION – protection visa –application for review of Immigration Assessment Authority decision – where no jurisdictional error is established – application dismissed with costs  

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visas – whether Tribunal erred in failing to engage in further fact finding – whether Tribunal erred in rejecting applicants’ claim they faced real risk of sexual violence in Sri Lanka – whether Tribunal erred by not accepting DFAT risk assessment of violence against women in Sir Lanka – whether Tribunal denied applicant or witness procedural fairness by failing to raise with applicant or witness concern about independence of witness – application dismissed 

MIGRATION– Whether the Tribunal failed to consider a claim said to have been advanced on behalf of the applicant – whether any claim was clearly articulated – whether the Tribunal ought to have raised an unarticulated claim on behalf of the applicant – no jurisdictional error established – application dismissed.  

BANKRUPTCY – administration of deceased bankrupt estate – substantial defrauding of now deceased bankrupt’s former employer by which property held on trust was obtained – property held on trust is not divisible amongst creditors – where Trustee and former employer sought orders that Trustee acting reasonably in sale and distribution of property in the estate and for Trustee to be paid remuneration – consideration of relevant factors in exercise of the discretion – orders made, substantially by consent, with creditors of the bankrupt estate granted liberty to apply.  

MIGRATION - Whether Authority misapplied real chance test – whether Authority erred by finding improvement in security situation equated to absence of real chance of harm – whether Authority failed to consider material question of fact

MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – application of ss 486E and 486F – whether the IAA failed to correctly interpret the meaning of ‘receiving country’ – where Australia is the country of former habitual residence – whether the IAA failed to consider situation of a member of a family unit where no claims advanced – whether the IAA was legally unreasonable – whether the IAA failed to consider claims or evidence – whether IAA properly identified country information – no jurisdictional error established – application dismissed

MIGRATION – Where applicant had previously been granted a Temporary Protection visa which had since lapsed – whether Tribunal erred by failing to consider the previous protection assessment in determining whether application was a refugee for the purposes of the Migration Act – whether Tribunal erred by failing to inform the applicant that it would not consider the original protection assessment or would depart from the approach of the delegate

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant partner visa – Tribunal not satisfied there were compelling reasons for not applying Schedule 3 criteria – no point of principle – application dismissed 

MIGRATION – Where a nomination application was withdrawn – where the Department had accepted and acted upon the withdrawal - whether the Department or the Tribunal had power to re-instate a nomination application said to have been erroneously withdrawn – where there was no such power – no jurisdictional error established – application dismissed. 

MIGRATION – Whether Tribunal failed to consider essential integer of applicant’s claims – whether Tribunal failed to consider or properly consider evidence – whether reasoning for not accepting applicant’s identity was illogical or irrational

MIGRATION – Whether the Tribunal erred in finding that the applicant was not a genuine temporary entrant in Australia for the purpose of undertaking study – no jurisdictional error established – application dismissed. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant visitor visa – Tribunal not satisfied exceptional circumstances exist for grant of visa – whether jurisdictional error – no point of principle – 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 – no jurisdictional error established – application dismissed.   

MIGRATION – judicial review – decision of Administrative Appeals Tribunal – dismissal for non-appearance – costs ordered. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether the Tribunal failed to comply with the requirements of s359AA of the Migration Act 1958 (Cth) - whether Tribunal erred in exercise of discretionary power to cancel visa – no jurisdictional error established – application dismissed 

MIGRATION – application for judicial review – decision of the Administrative Appeals Tribunal – student (temporary) (class TU) visa – where the applicant claims that the Tribunal erred in conducting a hearing in circumstances where the applicant had not responded to a request for information made by the Tribunal pursuant to either section 359 subsections (1) or (2) of the Act – consideration of whether the Tribunal’s request was made pursuant to section 359 subsection (1) or (2) and whether section 359C was enlivened in the circumstances – where the applicant further claims that the Tribunal erred in failing to observe section 359A of the Act by not putting certain information to the applicant – consideration of whether the Tribunal complied with its obligations under section 359A of the Act –  no jurisdictional error established – application dismissed with costs. 

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – where the Tribunal concluded it did not have jurisdiction to hear the application because it was made out of time – where the letter notifying the applicant of the Ministers decision of was sent to the applicant’s authorised recipient – whether notification of decision satisfied s 66(2)(d)(ii) of the Migration Act 1958 (Cth) by stating the time in which the application for review may be made – finding that the notification letter did comply with s 66(2)(d)(ii) so that notification was validly communicated  – no jurisdictional error otherwise identified in decision of Tribunal– application dismissed with costs 

FAIR WORK – PRACTICE AND PROCEDURE – interlocutory application for discovery – applicant seeking disclosure of various documents referred to in the respondent’s evidence and submissions or otherwise believed to exist – where discovery not allowed unless declared appropriate in the interests of the administration of justice – consideration of relevant factors – discovery application allowed in part. FAIR WORK - Objection to production of documents called by subpoena – whether legitimate forensic purpose – subpoenas set aside. 

FAIR WORK – general protections – where applicant alleges dismissal for a prohibited reason or reasons – complex background narrative – whether applicant possessed or exercised workplace rights – consideration of complaints applicant is able to make – where purported reason for dismissal was redundancy following organisational restructure – where corporate respondent identifies a single decision-maker – consideration of the scope of the corporation’s state of mind - whether other persons contributed to decision-making in a material, substantial or essential manner – whether states of mind of decision-maker or those who contributed infected by prohibited reasons – statutory presumption in favour of prohibited reasons alleged by applicant – whether respondent discharged the statutory onus – lanunae and inconsistencies in the evidence of decision-making processes and reasoning – where court not persuaded that applicant’s exercises of workplace rights did not actuate or influence decision to restructure and terminate – statutory onus to “prove otherwise” not discharged – whether second and third respondents involved in the corporate respondent’s contravention  

MIGRATION – judicial review – agent failed to respond within requested time to request for information by Tribunal as a result of which Tribunal made decision without taking further action to obtain information – whether agent’s omission or conduct involved fraud, dishonesty or recklessness – onus on applicant to prove fraud – whether Tribunal’s procedural decision to make decision on the review without taking further action to obtain information was legally unreasonable  

MIGRATION – Protection (Class XA) (subclass 866) visa – judicial review of a decision of the Administrative Appeals Tribunal – unreasonableness – failure to intellectually engage – no jurisdictional error established – application dismissed 

MIGRATION – Protection (Class XA) – judicial review of a decision of the Administrative Appeals Tribunal – failure to consider – unreasonableness – illogicality – no jurisdictional error established – application dismissed

MIGRATION – protection visa - applicant citizen of Malaysia – applicant of Indian Malaysian ethnicity – applicant claimed discrimination in employment on basis of his religion – country information indicated risk of such treatment on basis of race – Tribunal erred in failing to consider whether applicant would face serious harm constituted by significant economic hardship for reasons of race – error material and therefore jurisdictional – writ of certiorari issued – writ of mandamus issued

MIGRATION – Medical Treatment visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or on behalf of the applicant – 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 – Class XA visa application – whether the Administrative Appeals Tribunal failed to conduct the review required by the Migration Act 1958 (Cth) – whether the Tribunal breached the natural justice requirements – whether the Tribunal’s decision was unreasonable and irrational and failed to take relevant considerations into account – two of the proposed grounds of judicial review have no merit – one ground of judicial review upheld –Tribunal decision quashed – matter remitted to the Tribunal 

MIGRATION – Safe Haven Enterprise Visa – Whether the Immigration Assessment Authority (Authority) acted unreasonably, illogically or irrationally – Whether the Authority failed to exercise the power under s 473DC – Whether the Authority held the expertise or qualifications in the relevant and necessary areas – proposed grounds of judicial review have no merit – application dismissed 

MIGRATION – review of a decision of the Administrative Appeals Tribunal – protection visa – no jurisdictional error established – application dismissed.  

MIGRATION – judicial review of a decision of the Administrative Appeals Tribunal – student visa – no jurisdictional error established – 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 satisfy cl 500.212 of Sch 2 of the Migration Regulations 1994 (Cth) – whether Tribunal erred by failing to provide genuine consideration to Direction 69 – found no jurisdictional error on behalf of the Tribunal – Application dismissed. 

MIGRATION - application for student visa – mandatory requirement to show current enrolment in course of study – applicant failed to provide evidence of Confirmation of Enrolment - criteria for grant of the visa not met – Tribunal compelled to affirm decision under review - no attendant jurisdictional error – application dismissed

MIGRATION – application for student visa – whether applicant a genuine applicant for entry and stay as a student – whether applicant intends genuinely to stay in Australia temporarily  – whether Tribunal had regard to applicant’s offer of employment in Indonesia – whether genuine letter of support – application dismissed

MIGRATION - Class XA visa application – whether a testimony should be considered in isolation or within context – whether the Administrative Appeals Tribunal (“AAT”) failed to consider country information – whether the AAT denied the applicant a fair opportunity to address adverse material – whether the AAT failed to acknowledge a real risk of harm – whether the AAT failed to consider the totality of claims raised  - whether the AAT failed to adhere to a Ministerial Direction – whether the AAT failed to adequately evaluate the risk of significant harm - proposed grounds of judicial review have no merit – proposed claims invite an impermissible merits review - application dismissed 

MIGRATION – Student (Temporary) (Class TU) (subclass 500) visa – judicial review of a decision of the Administrative Appeals Tribunal – unreasonableness – failure to consider – no jurisdictional error established – application dismissed

PRACTICE AND PROCEDURE – Application in a proceeding – application for extension of time to file originating application – factors for consideration – length of delay – explanation for delay – where multiple lodgment forms filed – whether affidavit required to be filed with application – whether address for service requirements met – whether medical evidence sufficient to explain delay – where self-represented – prejudice – whether respondent wound up - whether underlying claim has sufficient arguable merit. 

PRACTICE AND PROCEDURE – Application in a proceeding – application for adjournment of extension of time application for filing of originating application – adjournment – factors for consideration. 

PRACTICE AND PROCEDURE – Application in a proceeding – leave to appear at hearing of application in a proceeding by telephone – consideration of post-COVID pandemic practice of the Court – consideration of overarching civil practice and procedure provisions. 

PRACTICE AND PROCEDURE – Application in a proceeding – application for leave to appear by a foreign lawyer – legislative provisions concerning appearance in federal courts – application hypothetical. 

LAWYERS – Application for leave to appear by a foreign lawyer – legislative provisions concerning appearance in federal courts – application hypothetical. 

WORDS AND PHRASES – “must not make”.

MIGRATION –Application to review a decision of a Judicial Registrar – where Judicial Registrar summarily dismissed the Applicant’s application for judicial review – where application for judicial review does not have reasonable prospects of success – application to extend time to file the application to review the decision of the Registrar refused and 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 satisfy cl 500.212 of Sch 2 of the Migration Regulations 1994 (Cth) – whether Tribunal erred by failing to provide genuine consideration to Direction 69 – found no jurisdictional error on behalf of the Tribunal – Application dismissed. 

MIGRATION – Migration Act 1958 (Cth) – Application for Regional Employer Nomination (Class RN) (Subclass 187) visa – Administrative Appeals Tribunal not satisfied that the applicant had a valid nomination as required by cl.187.233(3) and affirmed Delegate’s decision to refuse the application for the Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa – application for judicial review – no meaningful ground of jurisdictional error asserted – no jurisdictional error established – application for judicial review dismissed.

MIGRATION – Judicial review application – decision of Immigration Assessment Authority – Shia Arab from Iraq – claims of fear of harm from ex-wife’s family in Iraq – whether failure to address a claim – whether error in relation to new information finding – whether failure to perform procedural duty in relation to consideration of new information – whether jurisdictional error 

MIGRATION – Whether Tribunal failed to consider evidence or gave insufficient weight to evidence – whether Tribunal had duty to inquire – choice of country information   

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal required to put concerns about applicant’s evidence to applicant and provide opportunity to comment or respond – whether Tribunal’s refusal to give applicant more time to provide material to Tribunal was unreasonable – no jurisdictional error established – application dismissed

PRACTICE AND PROCEDURE – costs – whether second applicant who was minor at time proceeding commenced should be ordered to pay respondent’s costs 

MIGRATION – Dismissal for non-appearance – where parties were notified of the matter being relisted for a different time on the same date – where applicants emailed the Court on the morning of the hearing stating they could not attend - application dismissed