Judgments

MIGRATION – protection visa – decision of the Administrative Review Tribunal – failure to appear before the Tribunal – where Tribunal dismissed the application pursuant to s 99 of the Administrative Review Tribunal Act 2024 (Cth) – whether the applicant was afforded sufficient time to prepare materials – whether the Tribunal failed to consider the applicant’s grounds – no jurisdictional error established – application dismissed. 

MIGRATION – Judicial review – Administrative Appeals Tribunal (as it then was) – whether the Tribunal erred in finding that there was a ground of cancellation under s 116(1AA) – whether the Tribunal failed to give proper, genuine and realistic consideration to the risk of harm to the applicants if returned to home country – whether the Tribunal failed to consider the best interests of the applicants’ Australian citizen children and the harm they would face if returned to Sri Lanka – Court finds no jurisdictional error made by the Tribunal – Application dismissed 

MIGRATION – application for extension of time to seek judicial review – decision of the Administrative Appeals Tribunal affirming decision to refuse applicant a protection visa – where Tribunal decision the subject of an earlier judicial review application – where applicant failed to disclose the existence of the earlier judicial review application as required pursuant to s 486D(1) of the Migration Act 1958 (Cth) – where compliance with s 486D(1) is a jurisdictional pre-condition – where application for an extension of time is incompetent – application dismissed with costs. 

INDUSTRIAL LAW – practice and procedure – objection to producing documents called by subpoena on the ground the documents are subject to without prejudice privilege – whether the without prejudice privilege asserted in relation to the documents is a privilege jointly held by the party seeking production and the party resisting production and for that reason must be produced – whether there would be any utility in determining whether the documents are subject to without prejudice privilege, assuming such privilege is jointly held – whether a legitimate forensic purpose has been demonstrated for the production of the documents – objection to production dismissed.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – applicant provided bank statement to prove financial support – Tribunal found bank statement was bogus document – Tribunal reasonably suspected document was counterfeit or altered by person who did not have authority to do so – whether Tribunal erred in finding document was bogus document – whether Tribunal considered whether bank statement was purposely untrue – no error by Tribunal – application dismissed.

MIGRATION – Ex Tempore – application for the review of a Registrar's decision – judicial review – Temporary Graduate (subclass 485) visa – applicant dependent on partner whose visa had ceased – no real or genuine dispute that resolvable in an applicant’s favour – application dismissed. 

MIGRATION – Application in a proceeding seeking reinstatement of judicial review application – Inadequate explanation for non-attendance at final hearing – Proposed grounds of review not reasonably arguable – Application dismissed. 

MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – applicant provided new information to Authority – Authority not satisfied there were exceptional circumstances to justify considering new information – whether Authority assessed new information against s 473DD(b)(ii) and considered whether information was credible personal information.

MIGRATION – judicial review – applicant included hyperlink to country information report in submission to Authority – whether applicant thereby provided entirety of report to Authority – distinction between publication date of country information report which post-dated Minister’s decision and date of country information in report which pre-dated Minister’s decision.

MIGRATION – judicial review – Authority concerned about delay between date applicant claimed to have committed serious offence of which Iranian authorities were aware and date authorities sought to arrest applicant – whether Authority’s concern based on unwarranted assumption or lacked an evident and intelligible justification. 

BANKRUPTCY – Application to set aside Bankruptcy Notice (“Notice”) – Where final property orders were made pursuant to s 79 of the Family Law Act 1975 (Cth) (“Family Law Act”) – Where the subject debt is the result of enforcement proceedings in the family law division of this court – Where it is alleged that the Notice had the incorrect name on it – Allegations that the Notice overstates the debt –Allegations of an abuse of process – Appropriation of funds – Where the debt is found to be overstated – Notice set aside.

PRACTICE AND PROCEDURE – Interest on judgment debts – Where there is no prohibition on compounding interest (“interest on interest”) in the context of s 117B of the Family Law Act. 

PRACTICE AND PROCEDURE – Suppression orders – Where it is in the interests of justice to issue a pseudonym – Where the interests of children are involved – Extant family law proceedings. 

BANKRPTCY – application to review Registrar’s Decision creditor’s petition – s 40(1)(c) and s 306 of the Bankruptcy Act - Harman undertaking – application dismissed.   

MIGRATION – Protection (Subclass 866) visa – Administrative Appeals Tribunal – failure to appear pursuant to s 426A – dismissed pursuant to s 425A – appeal for lack of notice to authorised recipient – proper form to elect someone as an authorised recipient pursuant to s 441G – application dismissed with costs. 

MIGRATION – Whether the Immigration Assessment Authority took into account the possibility that events claimed by the applicant occurred - whether the Authority had a separate duty to investigate the screenshots of a social media post. 

MIGRATION – Administrative Appeals Tribunal – protection Visa – review of a Registrar’s decision – extension of time – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal fell into jurisdictional error – no jurisdictional error is made out – impermissible merits review – application dismissed.

MIGRATION – Judicial Review – partner visa – public interest criterion 4020 (PIC 4020) – PIC 4020 waiver – whether Tribunal failed to actively and intellectually engage with representations and evidence relating to the existence of compassionate or compelling circumstances – whether Tribunal mischaracterised evidence – whether Tribunal decision was legally unreasonable – no jurisdictional error disclosed – application dismissed.

MIGRATION - Student (Temporary) (class TU) Student (subclass 500) visa– refusal for failure to satisfy Tribunal applicant was enrolled full-time in a registered course of study– no real or genuine dispute that resolvable in an applicant’s favour– application for review of Registrar’s summary dismissal– no reasonably arguable error–  application dismissed. 

MIGRATION – application for judicial review – Student (Temporary) (Class TU) (Subclass 500) visa – Administrative Review Tribunal not satisfied that applicant met cl 500.212(a) of the Regulations – whether decision was partly erroneous – legally unreasonable finding made by Tribunal – found error to be material – jurisdictional error established – application allowed. 

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal failed to consider “the full integers of the Applicant’s claim” – limitations of the Court’s role in judicial review proceedings – application dismissed. 

MIGRATION- judicial review – decision of Administrative Review Tribunal refusing to grant student visa – whether Tribunal gave proper “weightage” - whether applicant satisfied genuine temporary entrant criterion pursuant to cl 500.212 – whether Tribunal failed to properly apply Direction 69 – whether Tribunal failed to accord procedural fairness - no jurisdictional error established – application dismissed.

MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa -  Authority rejected claims which delegate accepted – whether failure of Authority to exercise power in s 473DC to invite applicant to give new information before rejecting claims accepted by delegate was legally unreasonable – whether Authority erred in finding that it could not consider new information pursuant to s 473DD - application dismissed 

MIGRATION – Partner (Temporary) (Class UK) (Subclass 820) visa – review of a decision of the Administrative Review Tribunal – procedural fairness – whether there was a failure to properly consider the applicant’s claims – no jurisdictional error established – application dismissed

MIGRATION – Whether Immigration Assessment Authority erred by failing to accept certain claims – whether that failure was irrational or illogical – whether dissatisfaction that applicant faces a real chance of harm for reasons associated with his mental state constitutes error. 

MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – treatment of new information – whether IAA should have considered document alleging translation errors – whether IAA misconstrued s 473DD – whether IAA’s findings on credibility were unreasonable or illogical – whether IAA made same error as previously constituted IAA – no jurisdictional error – application dismissed. 

MIGRATION – judicial review application – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal the Tribunal failed to consider a claim – whether Tribunal failed to consider the applicant’s claim that he was misled and wrongly advised by his migration agent – whether there was fraud by a third party or migration agent - no jurisdictional error established – application dismissed.   

MIGRATION – judicial review – decision of Administrative Review Tribunal refusing to grant protection visa – whether Tribunal erred by deciding the review on the basis the applicant was not entitled to a ‘Complementary Protection Visa’ - whether Tribunal erred by failing to comply with s 359A of the Act - no jurisdictional error established – application dismissed.    

MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence or claims advanced by the applicant – whether the Tribunal made a jurisdictional error by failing to make inquiries – no jurisdictional error – application dismissed.   

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal correctly applied the provisions of the Migration Act – whether the Tribunal drew an unreasonable inference – whether the Tribunal considered a claim – unreasonableness – no jurisdictional error – application dismissed. 

MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence or claims advanced by the applicant – whether the Tribunal denied the applicant procedural fairness by failing to receive additional evidence or due to delay in hearing the application – no jurisdictional error – application dismissed.  

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – where Tribunal found applicant’s medical certificate did not contain adequate explanation as to why the applicant could not attend a telephone hearing – whether Tribunal’s finding was not logical or rational - jurisdictional error established – application allowed.

MIGRATION – Protection (Class XA) (subclass 866) visa – judicial review of a decision of the Administrative Appeals Tribunal – exercise of discretion to dismiss for non-appearance – no jurisdictional error established – application dismissed. 

MIGRATION – judicial review application – decision of Administrative Appeals Tribunal refusing to grant a protection visa – unparticularised grounds of judicial review are liable to be dismissed – Tribunal did not err in carrying out its statutory duty - no jurisdictional error established – application dismissed.  

BANKRUPTCY – application to review a registrar’s decision – where registrar dismissed application to set aside bankruptcy notice – not satisfied applicant has a cross-claim under 40(1)(g) of the Bankruptcy Act – review application dismissed.

MIGRATION – judicial review application -  decision of Administrative Appeals Tribunal refusing to grant Employer Nomination (subclass 186) visas – where sponsor’s visa nomination application refused – whether Tribunal made an error when considering “Benchmark A” to determine if Nominator complied with training contribution obligations – whether Tribunal erred in its approach to the definition of “payroll” – whether there was a denial of procedural fairness - application dismissed.

MIGRATION – judicial review application – decision of Administrative Appeals Tribunal refusing to grant a medical treatment visa – consideration of migration history falls within s 602.215(c) – lack of treatment for medical conditions - no jurisdictional error established – application dismissed. 

MIGRATION - application for reinstatement – protection visa application - not satisfied the applicant has a reasonably arguable case - not satisfied there will be any utility in reinstating the proceedings – no arguable jurisdictional error - application for reinstatement dismissed.  

MIGRATION – extension of time application – decision made by the Administrative Appeals Tribunal – protection visa – whether the explanation for the delay is satisfactory – whether the Tribunal should have found the notification of the delegate’s decision invalid – underlying application for review lacks merit – extension of time refused.   

MIGRATION – application for review of a registrar’s decision – employer nomination visa – application for judicial review summarily dismissed by a judicial registrar – application for review of a registrar’s decision filed out of time – underlying application lacks merit – extension of time refused. 

MIGRATION – application for judicial review – decision made by the Administrative Appeals Tribunal – employer nomination visa – whether the Tribunal gave clear particulars of a relevant issue – whether the Tribunal should have addressed the second applicant’s circumstances – errors made not jurisdictional in nature – Tribunal unable to reach any other outcome – application dismissed. 

MIGRATION – review under s 476 of the Migration Act 1958 (Cth) – dismissal of applicant’s protection visa application on the basis that the original claim was economically motivated – claim of persecution on the basis of bisexuality/LGBTQI plus identity – no real chance of harm in all parts of Malaysia.  

MIGRATION – judicial review of a decision of the Administrative Appeals Tribunal – Bridging E (Class WE) visa – whether the Tribunal breached s 360 of the Migration Act 1958 (Cth) – no jurisdictional error disclosed – application dismissed. 

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

MIGRATION – where application for judicial review of a decision of the then Administrative Appeals Tribunal was filed outside of the statutory timeframe – where applicant did not offer reasonable or acceptable explanation for the delay, no particular prejudice, public interest favours finality and substantive application not reasonably arguable and lacking in merit – held that further time for making the application not be allowed. 

MIGRATION – Whether Immigration Assessment Authority erred by failing to have regard to additional information – whether factual findings made without evidence – challenges to factual findings. 

MIGRATION- protection visa – application for judicial review of decision of Administrative Review Tribunal –  whether Tribunal complied with procedural fairness obligations in s 55 of the ART Act – whether Tribunal complied with s 106(3) of the ART Act in making a decision without a hearing where the applicant requested –  what is meant by issues for determination - whether issues could be adequately determined - whether decision legally unreasonable – where new dispositive issues raised - whether failure to consider evidence – whether failure to consider integers –  application dismissed.

MIGRATION - Application for judicial review – Student (Subclass 500) visa – Non-appearance by applicant - Application dismissed pursuant to rr 5.08(c), 5.10(a), 22.04(1)(a)(i) of the Rules. 

MIGRATION – judicial review – Protection (Class XA) (subclass 866) visa – whether the Tribunal lawfully exercised its powers under s 106(1) of the Administrative Review Tribunal Act 2024 (Cth) to make its decision on the documents without holding a hearing where it determined the matter on a different dispositive issue to that of the delegate – what is required for a valid request for the purposes of s 106(3)(b)(ii) – meaning of the phrase “it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding” – whether or not the preconditions in s 106(3) are met is a question of jurisdictional fact which is subject to judicial review by the courts – no jurisdictional error disclosed – application dismissed. 

MIGRATION – Judicial Review – student visa – genuine temporary entrant – broad allegations of procedural unfairness – invitation to impermissibly engage in merits review of delegate’s decision – application dismissed.

MIGRATION – application for judicial review – application for Protection (Class XA) (Subclass 866) visa –applicant in immigration detention – extension of time application – extension of time granted –– whether Administrative Review Tribunal erred by applying unreasonable reasoning – no jurisdictional error established – application dismissed. 

MIGRATION – Administrative Appeals Tribunal - student visa – applicant not having a certificate of enrolment – Tribunal refusing application for adjournment – applicant having had ample time to obtain a certificate of enrolment. 

HUMAN RIGHTS - Disability discrimination – whether in terminating an employee’s employment the employer unlawfully discriminated against employee because of a disability the employer imputed to the employee – whether in terminating the employee’s employment to whom the employer imputed a disability the employer failed to make reasonable adjustments for the employee – unlawful discrimination not established. 

MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa –whether Authority erred in declining to exercise power under s 473DC to invite applicant to give new information at interview – whether error of fact by Authority involved jurisdictional error – application dismissed.