Judgments

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

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 – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – whether the Tribunal failed to investigate the applicant’s claims – whether the Tribunal misconstrued significant harm – whether the Tribunal’s decision was legally unreasonable – jurisdictional error not established – application dismissed with costs 

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 

MIGRATION – Extension of Time Application – where the application for review was 612 days out of time – where the applicant did not provide an adequate explanation for the delay – where prejudice to the public interest caused by excessive delay weighs against grant of the extension of time – where the proposed ground of judicial review has no reasonable prospect of success – application dismissed 

MIGRATION – Application for judicial review of decision made by Administrative Appeals Tribunal – business visa –no jurisdictional error established – application dismissed.

INDUSTRIAL LAW – General protections application – whether there were misleading and deceptive inducements made by the employer – whether the complaints made by the applicant fall within the definition of a complaint or inquiry – whether those complaints satisfy and fall within the definition of workplace right pursuant to section 341(1)(c) – whether there were multiple decision makers involved in the applicant’s dismissal – what was the substantive and operative reason for the applicants dismissal – is that reason protected or prohibited under the Fair Work Act – whether the applicant was dismissed within the probationary period - evidentiary matters to be considered 

INDUSTRIAL LAW - application in a proceeding for default judgment pursuant to r 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – failure to comply with Court orders – failure to file Notices of Address for Service – failure to attend Court  

INDUSTRIAL LAW – GENERAL PROTECTIONS – application for dismissal on the basis of the applicant’s default – where the applicant is self-represented – where the applicant has not complied with orders to file and serve trial evidence or an outline of submissions – where the applicant was not prepared for the final hearing – where the applicant was found to be in default – consideration of factors relevant to exercise of discretion – order made dismissing the proceedings in the applicant’s default 

MIGRATION – judicial review – application to review registrar’s decision – review application filed 16 days out of time – whether extension of time should be granted – unsatisfactory explanation for delay – no arguable case of jurisdictional error – application dismissed 

MIGRATION – Application for judicial review of decision made by Administrative Appeals Tribunal – whether the Tribunal’s reasoning was unreasonable in relation to accepting the applicant’s claim about potential harm – whether the Tribunal acted unfairly – no jurisdictional error established – application dismissed.   

MIGRATION – extension of time – seven days out of time – where related judicial review matter dismissed – no arguable case for jurisdictional error – application dismissed 

MIGRATION – Judicial review – Temporary Graduate visa – English language requirement – minimum overall test score met but test not undertaken within three years prior to application – invitation to impermissibly engage in merits review of the delegate’s decision – allegations of procedural unfairness – error found but not material – jurisdictional error not established – application dismissed.

MIGRATION - Safe Haven Enterprise Visa (Class XE) (Subclass 790) visa – grounds of review invite the Court to undertake impermissible merits review – allegation of illogicality, unreasonableness in the decision under review – no breach of s 473 DD of the Migration Act 1958 (Cth) – no jurisdictional error established –  application dismissed with costs 

MIGRATION – application for judicial review – whether Tribunal correctly considered subreg 2.72(10)(f) of the Migration Regulations 1994 (Cth) – meaning of the word ‘genuine’ – whether open to the Tribunal to consider financial circumstances of the nominator – no jurisdictional error established – application dismissed 

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – whether the Tribunal was affected by apprehended bias – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to take evidence into account – no jurisdictional error established – application dismissed with costs  PRACTICE AND PROCEDURE – APPLICATION FOR AN ADJOURNMENT AND REFERRAL FOR LEGAL ASSISTANCE – where the applicant took recent steps to seek legal assistance – where there is no certainty of legal representation – where a party has no right to apply for a referral for legal assistance – where the discretion to adjourn the hearing or refer the applicant for legal assistance is not enlivened 

MIGRATION – student visa – decision of the Administrative Appeals Tribunal – treatment of prejudicial material – apprehended bias – where fair-minded lay observer might consider Tribunal affected by subconscious bias – futility – application succeeds – writs issued. 

MIGRATION LAW – Where the Authority made findings contrary to the evidence before it – where no reasonable decision maker could have made such findings – where a different decision could have been arrived at had the Authority not erred – jurisdictional error established – application granted.   

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. 

BANKRUPTCY – Costs – application pursuant to order previously made that costs of applicant be set or be referred for taxation – applicant’s costs set.

INDUSTRIAL LAW – alleged breach of general protections – workplace right – adverse action – onus – whether workplace right to a safe workplace or a safe system of work – whether workplace right to workers compensation – whether a workplace right to the provision of medical assistance – whether workplace right to payments for medical treatment before acceptance of liability by workers compensation insurer – whether workplace right to be provided with light duties - whether coercion – whether discouragement constitutes coercion – whether undue influence or pressure – whether false or misleading misrepresentation made knowingly or recklessly – whether discrimination on basis of race, disability or national extraction – whether coercion concerning allocation  of particular duties to employee – whether consultation concerning change to regular roster or a change to ordinary working hours.

PRACTICE AND PROCEDURE – Application to reopen proceedings and file further materials – consideration of relevant factors – allegations of collusion and corruption – alleged conflicts of interest of respondent’s barrister, barrister’s parents and judicial officers – allegations of serious misconduct against respondent’s barrister – allegations irrelevant and scandalous – some material previously struck out – length of hearing – finality of litigation

MIGRATION – student visa – application for review of a decision of the Administrative Appeals Tribunal – whether the Tribunal was unreasonable – whether the Tribunal erred in affording procedural fairness – no jurisdictional error established – application dismissed.

INDUSTRIAL LAW – FAIR WORK – failure to comply with a compliance notice – application for imposition of pecuniary penalties – consideration of factors relevant to penalty – pecuniary penalties ordered

INDUSTRIAL LAW – application for default judgment against company and its sole director – default judgment – declarations made.

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 – judicial review – student visa – whether the Tribunal failed to consider relevant evidence – whether the Tribunal acted unreasonably – procedural fairness – whether weight given to certain evidence reveals jurisdictional error – no jurisdictional error found – 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

BANKRUPTCY – Creditor’s petition – No matter of principle

FAIR WORK – application for costs

MIGRATION -  judicial review – decision of Administrative Appeals Tribunal – protection visa – whether Tribunal failed to consider claims or documents - no jurisdictional error established – application dismissed.

MIGRATION – application for judicial review – matter listed for final hearing – no appearance by or on behalf of the applicant – 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 – Costs – Application for costs where the applicant was successful in the substantive proceeding – Where the criteria for costs ordered on an indemnity basis was not satisfied – Costs ordered in accordance with the Court’s scale

INDUSTRIAL LAW – FAIR WORK – on remittal from the Full Court of the Federal Court – lengthy procedural history – initial application filed in 2015 – Letter from company to prospective employees – Full Court found letter contained threats to take adverse action – whether the Letter was sent with an intention to prevent the exercise of workplace right – consideration of chief operating officer’s evidence both at the first trial and re-trial – witness found to be credible – finding that letter not sent for proscribed purpose – section 340 and 343 claims not made out

PRACTICE AND PROCEDURE – procedural issue – whether judgment can be delivered when court advised after judgment reserved the respondent was placed in administration – operation of section 440D of the Corporations Act 2001 (Cth) – liberty to apply