Judgments

CONSUMER LAW – application under s 100 and s 101 of the National Credit Code for access to residential premises for the purpose of taking possession of a vehicle claimed to be the subject of a security interest, and an order for possession of a vehicle – whether order should be made deeming service – whether preconditions for making of orders under s 100 and s 101 satisfied – orders made. 
 

INDUSTRIAL LAW – FAIR WORK – hospitality industry – application for penalties in relation to contraventions of general protections and various minimum entitlement, regular payment and payslip obligations under the Fair Work Act 2009 (Cth) – where default judgment was entered in respect for liability and the respondent has continued to elect not to participate in the proceedings for relief – final relief granted on default.    

 INDUSTRIAL LAW – FAIR WORK – hospitality industry – contraventions of general protections and various minimum entitlement, regular payment and payslip obligations arising under the Fair Work Act 2009 (Cth) – where default judgment was entered in respect of liability and the respondent has continued to elect not to participate in the proceedings for relief – final relief granted on default.  

INDUSTRIAL LAW – FAIR WORK – hospitality industry – application for penalties in relation to contraventions of general protections and various minimum entitlement, regular payment and payslip obligations under the Fair Work Act 2009 (Cth) – where default judgment was entered in respect for liability and the respondent has continued to elect not to participate in the proceedings for relief – final relief granted on default.   

PRACTICE AND PROCEDURE – Application made by the First Respondent to amend defence – Where application granted – Greater weight given to the Respondents being able to advance all arguments than any prejudice to the Applicant

PRACTICE AND PROCEDURE – Affidavits – Late filing of Respondents’ affidavits permitted – No material prejudice to the Applicant 

MIGRATION – Partner (Temporary) (Class UK) (Subclass 820) visa – review of a decision of the Administrative Review Tribunal – whether the Tribunal failed to consider all the circumstances of the parties’ relationship, including all the matters set out in r 1.09A(3) of the Migration Regulations 1994 (Cth) and failed to consider whether the applicant suffered family violence by the sponsor – no jurisdictional error established – application dismissed  

MIGRATION LAW – Where the applicant failed to establish that he had an ownership interest in one or more main businesses over a two-year period before he made application for a visa – where no jurisdictional error established on the part of the Tribunal – application dismissed. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant medical treatment visa – whether applicant satisfied genuine temporary entrant criteria for purpose of visa – applicant did not satisfy cl 602.212(6) – whether decision was decision was legally unreasonable - no jurisdictional error established – application dismissed. 

MIGRATION LAW – Where it was claimed that the Tribunal had misunderstood and misapplied subordinate legislation – where it was claimed that Tribunal had made a finding without there being any evidence to justify the finding - where claims made with an eye too keenly attuned to error – no jurisdictional error established – application dismissed.    

MIGRATION – related applications for judicial review of decisions of the Administrative Appeals Tribunal – where the Tribunal’s review of a visa application refusal depended upon the outcome of its review of a nomination refusal decision – whether the Tribunal misunderstood centrally relevant contentions made by the applicant in the nomination refusal matter – application dismissed

PRACTICE AND PROCEDURE – application for non-publication and suppression orders – where application made in the context of an upcoming mediation – whether orders for a limited period are necessary to prevent prejudice to the proper administration of justice – orders made

MIGRATION – application for judicial review – decision of the AAT to not grant Protection (Subclass 866) Visa – whether the Tribunal failed to consider claims – whether the Tribunal made illogical findings – findings were open to the Tribunal – no jurisdictional error established – application dismissed

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to engage with the applicant’s claims – whether the Tribunal made an unreasonable finding – no jurisdictional error established – application dismissed – application for Ministerial intervention encouraged.

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

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing protection visa – whether Tribunal considered country information - whether the Tribunal considered applicant’s evidence - no jurisdictional error established – application dismissed.

MIGRATION – protection (subclass 866) visa application - Tribunal was not satisfied that there is a real chance that the applicant will face serious harm in the reasonably foreseeable future if he returns to Malaysia – applicant is not a person in respect of whom Australia has protection obligations - no jurisdictional error is made out – application dismissed.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether the Tribunal had proper consideration of the evidence – whether applicant satisfied cl 500.212 - no jurisdictional error established – application dismissed.

MIGRATION – Administrative Appeals Tribunal – Protection (Subclass 866) visa – whether the Tribunal overlooked key evidence that substantiated the threats and harm the applicant had endured – whether the Tribunal incorrectly applied the legal definition of persecution under s 36(2)(a) of the Migration Act 1958 (Cth) – grounds of judicial review have no merit – application dismissed with costs.

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– whether the Tribunal applied the wrong legal test- no jurisdictional error established – application dismissed

MIGRATION –cancellation of Temporary Work (Skilled) (Subclass 457) visa – whether Tribunal applied the wrong legal test – whether Tribunal failed to consider relevant material– whether Tribunal failed to afford procedural fairness – weight is a matter for the Tribunal – no jurisdictional error – application dismissed 

MIGRATION – application for judicial review – regional employer nomination (subclass 187) visa – refusal due to no approved nomination – application for review of registrar’s summary dismissal – extension of time –inadequate explanation for delay – no reasonably arguable error – futility of remittal – application dismissed

MIGRATION - judicial review – decision of Administrative Appeals Tribunal cancelling visa on basis that applicant provided incorrect answers or information in visa application – whether Tribunal erred in its discretionary decision to cancel visa – no point of principle

INDUSTRIAL LAW – CIVIL PENALTIES – Where in the liability judgment the court made declarations that the First Respondent had contravened a compliance notice and that the Second Respondent was involved in the contravention – Penalties imposed

INDUSTRIAL LAW – OTHER RELIEF – Whether appropriate to order the First Respondent to take the steps required of it in the compliance notice under s. 545(1) or 545(2)(d) of the FW Act – Where s. 545(2)(d) inserted into the FW Act after the date of the First Respondent’s failure to comply – Whether order able to be framed with precision so that the First Respondent knew what it had to do for compliance – Held appropriate to make a remedial order for the First Respondent to take the steps required of it in the Compliance Notice – Interest. 

MIGRATION – Application for a Student (Temporary) (Class TU) visa – Review of the 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 consider all of the information before it – 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 the Administrative Appeals Tribunal (“Tribunal”) decision – Allegation that the Tribunal’s decision was affected by jurisdictional error – Impermissible merits review – Where the applicant was found not to be a genuine temporary entrant – Application dismissed. 

MIGRATION – judicial review – Administrative Appeals Tribunal dismissed application after applicant failed to appear at hearing – whether decision of Tribunal legally unreasonable – Tribunal received written notice of appointment of authorised recipient after inviting applicant to hearing – whether Tribunal’s failure to notify authorised recipient of hearing involved procedural unfairness.

COSTS – whether inability of applicant to meet costs order against him relevant to making or amount of order 

MIGRATION – application for judicial review – decision of the Administrative Appeals Tribunal – protection (subclass 866) visa – where the applicant claims the Tribunal’s decision was not capable of being reached on the material before it or on lawful grounds – no jurisdictional error established – applicant dismissed with costs. 

MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to consider relevant information – whether the Tribunal’s decision was affected by bias – whether the Tribunal failed to afford the applicants procedural fairness – whether the Tribunal acted unreasonably – no jurisdictional error – application dismissed.

MIGRATION – Business Innovation and Investment visa – decision of the then Administrative Appeals Tribunal – whether the interpretation services used at the Tribunal hearing were inadequate – whether the length of the Tribunal hearing was “too short” – whether the Tribunal failed to give the first applicant “clear particulars” – whether the Tribunal failed to give the first applicant an opportunity to provide further information in support of the review application – whether the Tribunal erred by affirming the delegate’s decision in relation to the second, third and fourth applicants – no jurisdictional error – application dismissed.

MIGRATION – Student visa cancellation – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal considered irrelevant evidence or information – whether the Tribunal failed to consider evidence or information before it – whether the Tribunal failed to give appropriate weight to certain factors – whether the Tribunal erred in assessing the degree of hardship the applicant might have faced if her visa remained cancelled – whether the Tribunal failed to make findings in relation to the applicant’s exceptional circumstances – whether the Tribunal’s findings were illogical, irrational or legally unreasonable – whether the conduct of the applicant’s representative amounted to a fraud on the Tribunal – no jurisdictional error – application dismissed.

MIGRATION – Judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – no point of principle. 

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal misapplied the relevant legal tests – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal erred by failing to seek further information or clarification in relation to critical aspects of the applicant’s protection claims – whether the conduct of any migration agent or representative assisting the applicant with completing of his visa application amounted to a fraud on the Tribunal – no jurisdictional error – application dismissed.

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to consider a protection claim (or an integer of a claim) – whether the Tribunal failed to afford the applicant procedural fairness or failed to comply with the natural justice hearing rule – whether the Tribunal relied on incorrect or irrelevant information – whether the Tribunal failed to make necessary enquiries – no jurisdictional error – application dismissed.

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to properly consider evidence before it – whether the interpretation service provided by the Tribunal was inadequate – whether the Tribunal failed to afford the applicant procedural fairness or failed to comply with the natural justice hearing rule – no jurisdictional error – application dismissed.

MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal acted reasonably when exercising its discretion to dismiss the applicant’s review application under s 362B of the Migration Act 1958 (Cth) – whether the Tribunal failed to consider the applicant’s medical evidence – whether the Tribunal failed to consider relevant considerations or circumstances – whether the Tribunal failed to afford the applicant procedural fairness – no jurisdictional error – application dismissed.

MIGRATION– Classes, Subclasses and streams of Visas – Where the Applicant applied for a visa in the Temporary Graduate Visa Subclass in the Graduate Work Stream of the Temporary Graduate Visa Subclass – Whether the Applicant should have been granted a visa in the Post-Study Work Stream of that Subclass.

MIGRATION– EXTENSION OF TIME – Where the delay in commencing the judicial review application was more than two years – Whether there was a satisfactory explanation for delay – Whether there was sufficient underlying merit to the application to extend time – Held there was insufficient merit to the underlying application to extend time – Application for an extension of time dismissed  

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa to applicant from Iran – Direction No 84 given by Minister under s 499 of Act – obligation of Tribunal pursuant to Direction No 84 to take into account DFAT country information assessment where relevant – Tribunal did not take into account or consider most recent DFAT country information assessment concerning Iran – whether information in DFAT assessment was relevant to Tribunal’s decision – whether any failure by Tribunal to comply with Direction No 84 and s 499 of Act was material – whether Tribunal’s decision could realistically have been different if Tribunal had considered DFAT assessment. 

PRACTICE & PROCEDURE – Death of applicant – abatement of proceeding.  

MIGRATION – Judicial Review – whether the period of notice for a rescheduled hearing given by the Administrative Appeals Tribunal (the Tribunal) was reasonable – whether the Tribunal erred in making a decision on the papers – whether there was fraud on the Tribunal by the applicant’s legal representative – no jurisdictional error – 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.  

INDUSTRIAL LAW - where there was evidence of a failure on the part of each respondent to comply with a duly issued compliance notice - where the respondents have failed to participate in the proceedings – where declarations and pecuniary penalty orders made accordingly. 
 

MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Protection (subclass 866) visa – where applicant was granted a protection visa which was subsequently cancelled – where applicant had returned to Iraq on two occasions following grant of protection visa notwithstanding claimed fears of harm – consideration of whether Tribunal engaged in illogical or irrational reasoning – where it was open for the Tribunal to conclude that the applicant had provided incorrect information – consideration of whether Tribunal failed to comply with ss 424A and 424AA of the Migration Act 1958 (Cth) – finding that applicant was put on notice of and did respond to the Tribunal’s concerns – consideration of whether Tribunal acted unreasonably in refusing two adjournment requests – finding that first refusal of adjournment not unreasonable and applicant has not established on balance of probabilities that second adjournment request was made – no jurisdictional error established – application dismissed with costs. 

MIGRATION -  protection visa - application for judicial review of decision of Immigration Assessment Authority refusing visa – where applicant bore scars relating to alleged torture – where scars visually inspected and described by the delegate – where Authority relied on delegate’s description – whether there was an informational gap in the review – whether Authority should have invited applicant to interview – where Authority obtained recent country information not available to delegate – whether Authority failed to properly consider later information regarding monitoring of social media activities by Iranian authorities – whether Authority relied on outdated country information – no error found 

MIGRATION –  protection visa – where applicant claims to fear harm due to conversion to Christianity – testing of applicant’s religious beliefs - whether the Immigration Assessment Authority erred by applying an arbitrary and unexplained standard of doctrinal knowledge in considering applicant’s commitment to Christianity – whether the Authority considered the particular circumstances of the applicant – whether the Authority erred in relying upon findings recorded by the delegate without interrogation of the source material  – whether the Authority made findings without a probative basis –  no jurisdictional error - application dismissed with costs  

MIGRATION – Where Tribunal failed to comply with section 359A obligation in relation to information which would have been a potential basis for affirming the decision, by ultimately finding on an alternative basis 
 

MIGRATION – Review of Registrar decision made out of time – where applicant fails to seek extension of time, elect for oral hearing and make written submissions – review application is susceptible to dismissal as incompetent  
 

MIGRATION – Application for an extension of time for judicial review of a decision of the Administrative Appeals Tribunal – where substantive application lodged 9 days after expiry of the statutory timeframe – where substantive application is futile and lacks merit – extension of time ought not be granted – application refused.
 

INDUSTRIAL LAW – FAIR WORK – admitted contraventions by CFMMEU official who acted in an improper manner whilst exercising the right to enter private premises and by the CFMMEU through its involvement – consideration of relevant factors – common course of conduct principle applied – declaratory relief granted and pecuniary penalties with partial personal payment ordered.   

INDUSTRIAL LAW – Fair work – application for breaches of the provisions of the Fair Work Act 2009 (Cth) – employer failed to pay wages and commissions – termination of employment following provision on medical certificate – where the respondents have failed to take any steps in the proceedings – principles to be applied in undefended proceedings – assessment of damages – quantum of penalty to be imposed – to whom should the penalty imposed be paid – matters to be considered 
 

MIGRATION – Application for judicial review – decision of Immigration Assessment Authority – citizen of Pakistan – Pashto ethnicity – whether failure to have regard to new information – date of publication of decision of Administrative Appeals Tribunal in another matter – whether Administrative Appeals Tribunal decision made before decision of delegate – consistency in administrative decision-making – whether unreasonableness or illogicality or irrationality – whether material jurisdictional error