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of application there was an extant complaint in the Australian Human Rights Commission – where AHRC complaint was later withdrawn by applicant – where respondents seek dismissal of Court proceeding to the extent that conduct pleaded is substantially the same as conduct identified in the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 –  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

MIGRATION – application for judicial review – protection visa – review of a decision of the Administrative Appeals Tribunal – where the Tribunal made adverse credibility findings – whether the Tribunal’s findings were legally unreasonable – application dismissed

MIGRATION – application for judicial review – medical treatment visa – review of a decision of the Administrative Appeals Tribunal - whether the Tribunal acted unreasonably in relation to the request for an extension of time – whether the Tribunal’s decision was affected by apprehended bias – no jurisdictional error established - application dismissed.

MIGRATION – Extension of time application – Short delay and satisfactory explanation – no prospects of success – application dismissed

MIGRATION – Whether the Tribunal conducted a proper review – whether the decision of the Tribunal was attended with any irrationality or illogicality – no jurisdictional error established – application dismissed.

MIGRATION – Whether the Tribunal carried out a proper review – whether the Tribunal misdirected itself as to its consideration of the relevant criteria under PIC 4020 – no jurisdictional error established – application dismissed.

MIGRATION – urgent interlocutory application to restrain Minister from removing applicant from Australia – whether serious question to be tried – whether damages an insufficient remedy – where balance of convenience lies – application dismissed.

MIGRATION – Administrative Appeals Tribunal – protection visa – whether a claim arose on the materials that the Tribunal did not consider – whether the Tribunal failed to afford the applicant procedural fairness.

BANKRUPTCY - review of Registrar’s decision to make a sequestration order – hearing de novo – validity of bankruptcy notice – section 41(5) applies – whether applicant debtor is insolvent – application dismissed

MIGRATION – Safe Have Enterprise visa – application for judicial review of decision of the then Immigration Assessment Authority – where the Authority constructively failed to exercise its jurisdiction to determine if the Applicants met the criteria as members of the same family unit of a non-citizen who met the criterion at s.36(2)(a) and/or (aa) – application allowed with costs

FAIR WORK - Whether employee or independent contractor – accessorial liability – unchallenged evidence of applicant –entitlements pursuant to modern award

MIGRATION – application for judicial review of a decision made by the Immigration Assessment Authority – where the Authority failed to consider new information against the requirements of s 473DD of the Migration Act 1958 (Cth) – whether that failure was material – whether the Authority asked itself the wrong question in deciding not to exercise its discretion in s 473DC of the Migration Act to get new information from the applicant at an interview – whether the Authority unreasonably failed to exercise, or considering exercising, its discretion in s 473DC of the Migration Act to get new information from the applicant – whether the Authority made a finding that was illogical or irrational – jurisdictional error established – writs issued.

INDUSTRIAL LAW – Practice and Procedure – determination of notices of objection to categories of documents called by subpoenas the applicant caused to be issued

MIGRATION – protection visa – application for extension of time to review decision of AAT–whether proper explanation of delay - consideration of the interest of the administration of justice –decision-maker’s duty to make inquiries – procedural fairness – application for extension of time dismissed

MIGRATION – application for review of decision made by registrar – where registrar summarily dismissed application for judicial review of decision of Administrative Appeals Tribunal – de novo hearing – whether applicant has reasonable prospects of success on the substantive application – extension of time refused – costs ordered 

INDUSTRIAL LAW – where employee of deregistered company alleges that sole director of the company was involved in the company’s failure to make payments in accordance with an award – whether award covered the employee’s employment – whether company failed to make payments it was required to make under the award – whether sole director of the company was a person involved in company’s failure to pay amounts it was required to pay under the award – employee establishes that he was covered by the award and the company had failed to make payments to the employee it was required to make under the award but employee fails to establish that the sole director was involved in the company’s failure to comply with the award – application dismissed.

MIGRATION – Application for extension of time to bring application for review – where the substantive application for review was without merit and futile – where application for extension of time dismissed accordingly. 

MIGRATION – Immigration Assessment Authority – protection visa – whether there was a fraud on the Authority by the applicant’s agent – whether the agent inaccurately advised the applicant that he could not submit new information to the Authority – whether it was unreasonable for the Authority to not seek further submissions from the applicant when it was apparent that the submissions that had been lodged contained information unrelated to the applicant

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – judicial review – refusal of Student (Temporary) (Class TU) (Subclass 500) visa –whether the Tribunal denied procedural fairness to the applicant – inappropriate to infer proceedings brought for ulterior purpose – no jurisdictional error established – application dismissed

INDUSTRIAL LAW – breaches of civil remedy provisions of the Fair Work Act 2009 (Cth) – declarations of breach – imposition of pecuniary penalties – relevant considerations. INDUSTRIAL LAW – Fair Work Act 2009 (Cth) - Compliance notice – contravention – whether compensation for contravention available.

INDUSTRIAL LAW - Where respondent underpaid his employee – where applicant served a Compliance Notice upon the respondent – where the respondent co-operated with the applicant during the course of the proceeding and remedied all underpayments – where a Statement of Agreed Facts was filed – declaration made accordingly.

MIGRATION – Protection visa – Application for extension of time to commence judicial review application – Where there is a delay of 16 months – Where no satisfactory explanation for the delay – Where the “real chance” test under the refugee criterion and the “real risk” test under the complementary protection criterion import the same test – Where the Tribunal found that there was not a “real chance” or a “real risk” because the  chance or risk of harm was remote or insubstantial if the Applicant returned to the receiving country – Where the proposed grounds of judicial review are not reasonably arguable – Application for extension of time dismissed