Judgments

INDUSTRIAL LAW – General protections – where employer issues a direction requiring employees to wear face masks at the workplace or provide evidence they are exempt from being required to wear face marks – where employee provides statutory declaration in support of exemption from being required to wear a face mask – where the employer informs the employee that the statutory declaration is invalid and directs the employee to leave the employer’s premises – where the employer sends letter alleging employee failed to comply with employer’s direction and public health order that the employee wear a face mask at the employer’s premises and for that reason engaged in misconduct – where the employer invites the employee to attend a show cause meeting to respond to the allegation – where employee dismissed the employee from his employment – whether employee held or exercised any workplace rights within the meaning of s 341 of the Fair Work Act 2009 (Cth) (FW Act) – whether the employer took adverse action – whether the employer did not take adverse action because the employee held or exercised workplace rights or because the applicant had a disability on the basis of which he claimed an exemption from wearing a face mask – employer took adverse action against the employee because the employee failed to comply with public health order on the employer’s premises – application dismissed. 

MIGRATION – Whether Tribunal failed to consider applicant’s claims – whether Tribunal dealt with non-disclosure certificates according to law

MIGRATION – Protection visa – Application for extension of time to review – Application for judicial review – Prospects of success – Whether adequate reason for delay – Whether in the interests of the administration of justice to extend time - Application dismissed 

MIGRATION – Protection Visa – whether Administrative Appeals Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeals Tribunal’s decision – application dismissed

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider a claim that clearly emerged on the material before it – no jurisdictional error established – application dismissed.

PRACTICE AND PROCEDURE – Request by non-party for access to documents contained in court file where there has been no hearing, final or interlocutory, in the proceeding in relation to which the documents have been filed – where parties oppose access being granted to the non-party and apply for a suppression or non-publication order pursuant to s 230(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act) in relation to the documents – whether s 230(1) of the FCFC Act applies where refusal to grant access to a document would not offend the open justice principle – whether order should be made pursuant to r 2.11(3)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) that the documents to which the non-party seeks access be confidential – order made that one of the documents be confidential.

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant carer visa – Tribunal not satisfied that assistance cannot reasonably be provided by Australian relative or obtained from nursing or community services in Australia – whether Tribunal considered sponsor’s cultural, linguistic and personal preferences in determining whether assistance can be obtained from nursing or community services – whether Tribunal properly considered ‘assistance’ referred to in reg 1.15AA(1)(b)(iv) – whether Tribunal misled applicant during hearing - no jurisdictional error established – application dismissed.

MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa - application for judicial review – alleged denial of natural justice and procedural fairness – alleged misconstruction of cl 500.212(a) of Sch 2 of the Migration Regulations 1994 (Cth) – no jurisdictional error - application dismissed.

MIGRATION – judicial review – whether the Tribunal correctly found that it lacked jurisdiction in relation to the matter – whether the applicant was validly notified of the delegate’s decision to refuse to grant a Subclass 820 visa and a Subclass 801 visa – negligence of migration agent – defective notification – withdrawal of authorised recipient status once migration agent became inactive – application succeeds.

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether error in Tribunal’s finding that applicant did not satisfy genuine temporary entrant criterion - whether two contradictory statements in Tribunal decision involved jurisdictional error – no jurisdictional error established – application dismissed

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – whether application accompanied by evidence that applicant has undertaken language test and achieved specified score within specified period – whether applicant can rely on language test undertaken after visa application made – “accompanied by” - no jurisdictional error established – application dismissed. PRACTICE AND PROCEDURE – Costs – whether appropriate to order scale costs.

MIGRATION – Protection visa – judicial review of decision of Immigration Assessment Authority not to grant visa as applicant was not of adverse interest to authorities – whether Authority failed to assess claims cumulatively – whether Authority failed to exercise discretion to consider new information – no jurisdictional error established

INDUSTRIAL LAW – Applications for summary dismissal – where applicant joined multiple, unrelated parties to proceedings brought under Fair Work Act 2009 – where Court issued certificate for pro bono legal assistance which applicant ultimately resisted – where additional documents filed seemingly making claims under the Fair Work (Registered Organisations) Act 2009 alleging reprisal – applications dismissed on basis that claims for relief have no reasonable prospect of success

INDUSTRIAL LAW – Application pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) for an extension of time within which to make a general protections court application – whether the applicant has an explanation for the delay – whether the applicant has no reasonable prospects of successfully prosecuting the proceeding against the respondent – construction of settlement agreement which provided for release on payment of $160,000 – whether the payment was an Employment Termination Payment (ETP) under s 82-130 of the Income Tax Assessment Act 1997 (Cth) (ITAA) – whether the payment was exempt under s 82-135(i) of the ITAA – whether the respondent as employer had withholding obligations in relation to the ETP – whether time was of the essence in relation to time stipulations under the settlement agreement – extension of time denied as no reasonable prospects of successfully prosecuting the proceedings – proceedings dismissed

PRACTICE AND PROCEDURE – application for suppression and non-publication orders –where matter referred to a mediation yet to occur – whether disclosure of pleadings might imperil mediation – whether suppression and non-publication orders necessary to prevent prejudice to the proper administration of justice – material suppressed until seven days after the termination of the Court ordered mediation process – application allowed

MIGRATION – protection (subclass 866) visa – application for review of Registrar’s decision under s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – where Tribunal dismissed application pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) – where the Tribunal confirmed its decision to dismiss the application – where Registrar summarily dismissed  judicial review application pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – where application for review of Registrar’s decision made out of time – whether extension of time ought be granted – no real prospect of success – application for extension of time refused – application dismissed

MIGRATION – Student (Subclass 500) visa –– application for judicial review – whether Tribunal failed to provide the applicant a meaningful hearing under by s 360 of the Migration Act 1958 (Cth) – evidence of access to funds - cl 500.214 of Sch 2 of the Migration Regulations 1994 (Cth) – amended application dismissed.

MIGRATION – partner visa – where applicant did not meet Schedule 3 (cl.3001) criterion – whether the Tribunal erred in its consideration not to apply the criterion for compelling reasons, took irrelevant considerations or failed to take relevant considerations into account and the decision was affected by apprehension of bias and a denial of procedural fairness – no jurisdictional error established – application dismissed with costs.

MIGRATION – Protection (Class XA) (Subclass 866) visa – application for an extension of time to seek judicial review – no reasonable explanation for delay – no jurisdictional error – application dismissed.

MIGRATION – Application to extend the time for filing to review a decision of the Administrative Review Tribunal – application to extend time considered and rejected by reference to well established factors – application dismissed.

MIGRATION - Judicial review – application to extend the time for filing – where application approximately 590 days out of time – principles and factors considered – application to extend time for filing refused.

PRACTICE AND PROCEDURE – FAIR WORK – application for setting aside or variation of statutory compliance notices issued by Fair Work Ombudsman – interlocutory application for strike out of pleadings and discovery.

MIGRATION – Regional Employer nomination visa – decision of the Administrative Appeals Tribunal – where no approved nomination – allegations of migration fraud – where applicant not ‘identified person’ in nomination – whether the Tribunal failed to comply with s 359A of the Act – no jurisdictional error established – application dismissed

MIGRATION – visitor visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or on behalf of the applicant – application dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

MIGRATION – Protection (subclass 866) visa – judicial review of a decision of the Administrative Appeals Tribunal – application for an extension of time to bring judicial proceedings under s 477(2) of the Migration Act 1958 (Cth) – whether extension of time is necessary in the interests of the administration of justice – length of delay – prospects of success – application dismissed

MIGRATION – Protection (subclass 866) visa – judicial review of a decision of the Administrative Appeals Tribunal – application for an extension of time to bring judicial proceedings under s 477(2) of the Migration Act 1958 (Cth) – whether extension of time is necessary in the interests of the administration of justice – length of delay – prospects of success of substantive application – application dismissed

MIGRATION – Application for extension of time – where applicant claimed to be unaware of time limits in which to seek judicial review – where applicant acknowledged having received decision of Tribunal but did not read it until a much later time

MIGRATION – reasons for judgment delivered ex tempore – extension of time – 361 days out of time – protection visa – inadequate explanation for delay – no reasonably arguable case for jurisdictional error – application dismissed.

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal engaged in an active and intellectual process – whether the Tribunal was legally unreasonable – jurisdictional error established – writs issued

MIGRATION – protection visa – judicial review of a decision of the Immigration Assessment Authority –  where invitation to attend Departmental interview did not comply with procedural requirements under the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) – where effect of non-compliance was that applicant had only one day’s notice of interview – where submissions provided to the Authority were prepared by the same migration agent whose conduct was the subject of Minister for Home Affairs v DUA16 – where submissions contained some information that did not obviously relate to the applicant - whether in those circumstances the failure of the Authority to exercise the power in s 473DC of the Act to invite the agent to provide further submissions was unreasonable – case analogous to DUA16 – no jurisdictional error – application dismissed with costs

INDUSTRIAL LAW – application for leave to have issued further subpoena – where applicant has exceeded subpoena limit pursuant to r 16.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – whether there exists a legitimate forensic purpose for issue of subpoena – consideration of issues in the proceeding – consideration of nature of anticipated evidence – finding that no legitimate forensic purpose exists – application for leave dismissed

INDUSTRIAL LAW - Application pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) (Act) for extension of time within which to make a general protections court application – whether applicant has given adequate explanation for delay – whether applicant has meritorious claim if extension granted –– whether otherwise appropriate to grant extension – extension granted.

ADMINISTRATIVE LAW – Child support – judicial review of a decision of the Administrative Appeals Tribunal regarding a departure determination – whether the Tribunal failed to afford the applicant procedural fairness, failed to consider relevant considerations, misapplied the law or acted unreasonably in varying the applicant’s adjusted taxable income to take into account a lump sum compensation payment he received – whether the Tribunal failed to understand the implementation of its decision in a manner that went to its jurisdiction – whether the Tribunal misunderstood or misapplied relevant legislation – no error of law established – notice of appeal dismissed.

MIGRATION – Whether Tribunal failed to afford meaningful hearing opportunity to applicant – whether, including as a consequence, Tribunal failed to consider best interests of child – whether findings inconsistent

PRACTICE & PROCEDURE – Where originating application for review made clear that applicant sought audio files of interview in order to provide further grounds or particulars – adjournment and costs consequences where Minister failed to provide audio files since commencement of proceedings until ordered by the Court.  MIGRATION – Whether Immigration Assessment Authority erred in determining whether to consider new information

MIGRATION – Protection (subclass 866) visa – application for reinstatement of application for judicial review – whether reasonable excuse for non-appearance at hearing – whether reasonable excuse for delay in bringing application for reinstatement – whether reasonably arguable grounds of review – application dismissed.

MIGRATION – Temporary Skills Shortage visa – judicial review of a decision of the Administrative Appeals Tribunal – failure to consider – legal unreasonableness – no jurisdictional error established – application dismissed

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

MIGRATION – Judicial Review – Protection Visa – Bangladesh – Political persecution – Sexual assault – Relocation - Unreasonableness - Unwarranted assumption – Consideration of corroborative evidence – Failure to consider a claim – Application dismissed with costs

MIGRATION – Judicial Review – Administrative Appeals Tribunal – Protection Visa - Application dismissed

MIGRATION – Judicial Review – Administrative Appeals Tribunal - Protection Visa – China – Where applicant provided limited documentation in support of his claim to the Tribunal – Impermissible merits review – Failure to consider country information – Application dismissed

MIGRATION – Whether cl 186.222 of the Migration Regulations is invalid by reason of inconsistency with s 55 of the Migration Act as found in Berenguel, despite relevant amendment

MIGRATION – review of a decision of the Administrative Appeals Tribunal – protection visa – no jurisdictional error established – application dismissed.

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 – 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 – 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 – 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.

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