Judgments

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the conduct of the applicant’s migration agent or a third party amounted to a fraud on the Tribunal – no evidence before the Court to establish fraud – no jurisdictional error – application dismissed

MIGRATION – Administrative Appeals Tribunal – Temporary Graduate (Post Study Work Stream) (subclass 485) visa – application made more than six months after completion of course – application therefore did not comply with cl.485.231 – no jurisdictional error.

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to apply the statutory requirements for a protection visa – whether the Tribunal’s reasoning process is unreasonable or illogical – whether the Tribunal failed to address aspects of the applicants’ evidence – whether the Tribunal was biased – no jurisdictional error – Ministerial Intervention – application dismissed.

PRACTICE AND PROCEDURE – industrial law –– where the applicant commenced proceeding in this Court alleging contraventions of Part 3-1 of the Fair Work Act 2009 (Cth) – where at time of application there was an extant complaint in the Australian Human Rights Commission – where AHRC complaint was later withdrawn by applicant – where respondents seek dismissal of Court proceeding to the extent that conduct pleaded is substantially the same as conduct identified in the AHRC complaint – whether s 734(1) of the FW Act is engaged in relation to this conduct – whether there is any jurisdictional impediment to the applicant commencing a fresh application in this Court – dismissal application allowed – leave granted to the applicant to commence fresh general protections application out of time

FAIR WORK – interlocutory application by third respondent for summary dismissal under s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – whether there are no reasonable prospects of the applicant proving the third respondent is a ‘responsible franchisor entity’ as defined under s 558A(2) or a holding company under s 558B(2) of the Fair Work Act 2009 (Cth) – whether any deficiency in the pleadings against the third respondent is incurable – summary dismissal of the proceeding against the third respondent refused on the basis the deficiency in the pleadings may be curable by amendment – leave granted to amend the statement of claim to plead accessorial liability pursuant to s 550 of the Fair Work Act 2009 (Cth)

MIGRATION – Judicial review – decision not to grant a Protection (Class XA) (subclass 866) visa – dismissal for non-appearance

MIGRATION – protection visa – judicial review of decision of Immigration Assessment Authority – whether finding as to receiving country open – whether the applicant’s claim of statelessness clearly articulated or emerges from materials – whether statement given to authority was new information – where statement provided outside time allowed – whether Authority acted unreasonably in not accepting statement or not seeking further information – whether Authority considered all relevant information – whether all claims for protection considered individually and cumulatively – whether the Authority misconstrued or misapplied the statutory tests for refugee and complementary protection – where asserted errors invite merits review – no jurisdictional error established

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

PRACTICE AND PROCEDURE – application for default judgment – discretionary – whether court should give default judgment where primary claim seems questionable. INTELLECTUAL PROPERTY – alleged Trade Mark infringement – Trade Mark consisting of the word “Snakeman” – whether that trade mark is a descriptive term. DEFAMATION – associated jurisdiction – whether defamation action arises from substantially the same or closely connected facts to the Trade Mark claim

MIGRATION – protection (subclass 866) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – judicial review – whether the Tribunal failed to consider relevant facts – whether the Tribunal considered the statehood of the applicant’s child – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to do its duty – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – matter listed for a directions hearing – 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 – application for judicial review of a decision of the then Administrative Appeals Tribunal – where the primary applicant was not subject of an approved employer nomination visa therefore did not satisfy cl.186.223 – application is dismissed with costs

MIGRATION - application for an extension of time for judicial review of a decision of the then Administrative Appeals Tribunal – where substantive application lodged 3 days out of time - where substantive application fundamentally lacks merit and therefore is futile – extension of time not in the interests of the administration of justice and application refused.

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 – 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 –  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 – 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 – 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 
 

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.   

PRACTICE AND PROCEDURE – Application for leave to institute fresh proceedings following vexatious litigant orders-application dismissed

HUMAN RIGHTS – where the applicant’s claim was dismissed – where costs usually follow the event – where amendments to legislation limiting the circumstances in which costs orders might be made in a proceeding commenced under the provisions of the Australian Human Rights Commission Act had no bearing upon the making of costs orders in the current proceeding – where the usual costs order was made.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – no jurisdictional error established – application dismissed.

PRACTICE AND PROCEDURE – Application for leave to institute proceedings following vexatious litigant orders - – proposed proceedings dismissed

MIGRATION – Judicial review – review of decision of the Immigration Assessment Authority – whether unreasonable failure to exercise power to invite applicant for interview – where different findings less favourable to applicant made by the Immigration Assessment Authority – where Minister’s delegate had benefit of observing applicant’s demeanour – whether reasoning in relation to credibility irrational or illogical – whether reasoning in relation to credibility unreasonable – whether credibility reasoning made by reference to a false factual premise – whether material jurisdictional error

 MIGRATION – reasons for judgment delivered ex tempore – application for extension of time –  where substantive application seeks judicial review of a decision of the Administrative Appeals Tribunal to affirm a delegate’s decision not to grant a protection visa –  application is dismissed with costs.

MIGRATION – Judicial review application – decision of Immigration Assessment Authority – affirmation of refusal to grant Safe Haven Enterprise visa – citizen of Sri Lanka of Tamil ethnicity – family support for the Liberation Tigers of Tamil Eelam – personal assistance to the Tamil National Alliance in parliamentary elections – alleged threats to and abduction by paramilitary groups – single unparticularised ground of review – further grounds raised orally at hearing – whether failure to understand threats and risks of harm from paramilitary groups – whether failure to consider evidence of political activity in correspondence from local officials – where correspondence not provided in translated form – whether treatment available in Sri Lanka for mental health conditions and following liver transplant – whether failure to understand medical treatment needs and available services following liver transplant – whether failure to understand mental health needs – whether jurisdictional error.

MIGRATION – Where there was a delay of 136 days in filing an application for review of the decision of the Tribunal – where there was no reasonable explanation provided in any affidavit for the delay – where the substantive grounds of review lacked merit and were not arguable – no jurisdictional error established – application dismissed.

MIGRATION – Judicial review – decision of the Immigration Assessment Authority – citizen of Pakistan – Pashtun Shi’a Muslim of the Turi tribe – whether failure to take into account relevant and cogent country information – whether findings legally unreasonable – whether unreasonable failure to consider matters raised – whether finding concerning applicant’s ability and willingness to travel and associated conclusion regarding risk of harm was made without evidence or was legally unreasonable – whether failure to consider claim concerning fear of harm whilst travelling and whether fear of harm was well – founded – whether material jurisdictional error

MIGRATION – judicial review – protection visa –whether Tribunal failed to inquire – whether inquiry obvious – whether inquiry would have gleaned information that could have led to a different outcome – no jurisdictional error established – application dismissed.

MIGRATION – Protection (Subclass 866) visa - Application for judicial review – Where applicant failed to attend scheduled hearing – Application dismissed.

MIGRATION – work skilled (subclass 457) visa – visa refused – first applicant in breach of cl 457.223 of sch 2 to the Migration Regulations 1994 (Cth) as she was not the subject to an approved nomination with a prospective employer – decision of the former Administrative Appeals Tribunal (Tribunal) to affirm the delegate’s decision – judicial review – whether the applicants were appropriately notified of the changes to the subclass 457 visa scheme – whether the applicants received the Tribunal’s correspondence to comment on the changes to the subclass 457 visa scheme – whether the applicants were given sufficient time to procure a nomination approval – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed

MIGRATION – Student visa – Application for judicial review – Where applicants failed to attend scheduled hearing – Application dismissed.

MIGRATION – Whether student visa applicant was genuine temporary entrant

BANKRUPTCY – Creditor’s Petition for a sequestration order - Applicant holds multiple costs orders against Respondent – Respondent alleges he is a whistleblower and should have never had a judgment made against him – Respondent alleges he does not owe the costs debt in question – whether there is other sufficient cause to apply court’s discretion to not make sequestration order- Respondent alleges he has multiple ongoing claims against Applicant in other courts for an equivalent and/or greater amount than the debts claimed against him – Respondent alleges Applicant pursuing sequestration order with intent of securing object other than recovering a debt – namely to stifle ongoing claims in other courts – whether issuance of bankruptcy notice amounts to an abuse of process

INDUSTRIAL LAW – Adverse action – application to strike out statement of claim – where statement of claim clearly deficient – orders made to strike out statement of claim and permit the Applicant to replead, or set out her claims in an alternative form.

MIGRATION – Protection (subclass 866) visa – Application for review of Registrar’s decision – Extension of time of four days required – Where Registrar dismissed the application for judicial review for non-appearance and then dismissed an application for reinstatement – Where the judicial review grounds have no reasonable prospects of success – Application for extension of time refused – Application for review of Registrar’s decision refused – Order for costs

MIGRATION – extension of time – seven days out of time – protection visa – inadequate explanation for delay – no reasonably arguable case for jurisdictional error – application dismissed.

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether applicant denied procedural fairness – whether Tribunal’s reasoning process was illogical and unreasonable - 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 –Judicial review – decision of Administrative Appeals Tribunal – protection (class XA) (subclass 866) visa – whether Tribunal’s findings unreasonable – invalid certificate – whether denial of procedural fairness – no jurisdictional error established – application dismissed

MIGRATION – Administrative Appeals Tribunal - Visitor (Class FA) visa (subclass 600) refusal– Where Tribunal found the visa applicant would not stay temporarily in Australia due to the economic conditions in Lebanon – Whether Tribunal asked itself the wrong question – Whether the tribunal failed to take into account a relevant consideration – Error of the kind identified in Khanam – Application upheld

MIGRATION – judicial review – decision of Administrative Appeals Tribunal cancelling student visa –whether Tribunal erred in exercise of discretionary power to cancel visa – whether Tribunal erred in dealing with medical evidence – no jurisdictional error established – application dismissed – costs ordered

MIGRATION – judicial review of Administrative Appeals Tribunal’s (the Tribunal) decision – protection visa – whether the Tribunal’s findings are legally unreasonable – jurisdictional error established.

MIGRATION – application for an extension of time for judicial review of a decision of the then Immigration Assessment Authority – where substantive application lodged 224 days (or 7 months and 10 days) out of time – where substantive application is futile and lacks merit –  extension of time ought not be granted and application refused.

MIGRATION – protection visa – application for judicial review of a decision of the Immigration Assessment Authority – whether decision was affected by an unreasonable failure to consider inviting further response or evidence pursuant to s.473DC or otherwise legally unreasonable – no jurisdictional error established – application dismissed with costs.

MIGRATION – review of a decision of the Administrative Appeals Tribunal (the Tribunal) – employer nomination visa – whether the Tribunal misdirected itself when it concluded as a matter of law that the applicant’s employer was not the nominated sponsor – whether the Tribunal erred when it had regard to the employment arrangements at the time of hearing – whether the Tribunal improperly referred to matters that were the subject of a certificate issued under s 376 of the Migration Act 1958 (Cth) – application dismissed.

MIGRATION – application for student visa – application lodged in person at Department of Home Affairs – whether applicant failed to lodge application in the prescribed way – jurisdictional fact – application dismissed