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

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

CONSUMER LAW – Chattel mortgage of motor vehicle (“Vehicle”) – security interest registered under the Personal Property Securities Act 2009 (Cth) – application for orders sanctioning seizure of Vehicle. 

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

MIGRATION – student (subclass 500) visa – decision of the (then) Administrative Appeals Tribunal – no appearance by or on behalf of the applicant – oral application to dismiss pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – application dismissed with costs

MIGRATION – Student (Subclass 500) visa – decision of the Administrative Appeals Tribunal – where delegate determined that applicant not a genuine temporary entrant – where Tribunal found the applicant did not satisfy the primary criterion pursuant to cl 500.212 – no jurisdictional error – 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)

MIGRATION – Protection (Class XA) (Subclass 866) visa –– judicial review of decision of the Administrative Appeals Tribunal –– failure to consider claims –– error of law – no jurisdictional error established – application dismissed

MIGRATION – protection visa – whether the IAA failed to make a finding – whether the IAA was required to make a finding regarding authenticity of an arrest warrant – whether sufficient to merely record concerns with critical evidence – whether concerns regarding the arrest warrant constituted fraud – jurisdictional error established – writs issued.

MIGRATION – Application for Judicial Review of reasons of the Immigration Assessment Authority – whether there was a failure to consider claims – whether the Authority made findings that were unreasonable – HELD that no error established – Application dismissed.

INDUSTRIAL LAW – Practice and Procedure – objections to categories of documents sought by subpoena – objections determined and relevant orders made

INDUSTRIAL LAW – application to strike out statement of claim because it does not allege or sufficiently allege material facts that reasonably enable the respondent to meet the case against it – statement of claim be struck out with leave to replead.

INDUSTRIAL LAW – Whether Applicant subject to adverse action for making complaint or inquiries – whether, inter alia, a failure to act may be considered adverse action – HELD that a failure to act is not adverse action in this matter – HELD further adverse action not taken for the making of complaints or inquiries.  

INDUSTRIAL LAW – Whether Applicant subject to adverse action because of mental disability – where Applicant sent an email to the effect he was having a hard time and close to losing it all – whether Applicant has established he has a mental disability – HELD Applicant has not established he has a mental disability and he was not subject to adverse action because of a mental disability. 

INDUSTRIAL LAW – Whether Applicant subject to adverse action because of family or carer’s responsibilities – HELD Applicant not subject to adverse action because of family or carer’s responsibilities.  

MIGRATION – application for judicial review –Temporary Protection (Class XD) visa – where applicant’s original Protection (Class XA) visa application taken to be a valid application for a Temporary Protection visa following legislative amendments – where Administrative Appeals Tribunal set aside decision of the first respondent and substituted it with a refusal to grant the applicant the visa –– where submissions raised by applicant sought impermissible merits review – grounds unparticularised –whether interpreter failed to interpret at hearing before Tribunal – whether Tribunal erred by making a finding that was illogical or irrational – found the Tribunal’s reasoning was open to it – found no jurisdictional error on behalf of the Tribunal – application dismissed.

HUMAN RIGHTS – Disability Discrimination – where minor represented by litigation guardian – claim relating to conditions of transport for school aged applicant – where parties have compromised proceeding and made settlement deed – whether terms of settlement should be approved by the court – whether settlement in the best interests of the applicant – consideration of relevant factors including independent legal advice – settlement approved

MIGRATION – extension of time – 165 days out of time – protection visa – inadequate explanation for delay – no reasonably arguable case for jurisdictional error – application dismissed.

MIGRATION – Judicial review application – review of decision of Immigration Assessment Authority affirming delegate’s decision to refuse Safe Haven Enterprise visa – citizen of Pakistan – whether failure to consider risk of harm in context of whether reasonable to relocate from Parachinar to Islamabad – whether failure to consider claim that applicant would travel back to Parachinar to collect family – whether material jurisdictional error.

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – consideration of the genuine temporary entrant criterion – whether Tribunal failed to consider applicant’s evidence – whether Secretary breached s 352(4) – no jurisdictional error established – application dismissed

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal to not grant the primary applicant a student visa – primary applicant did not satisfy genuine temporary entrant criterion – whether the Tribunal failed to comply with s 360 of the Migration Act 1958 (Cth) – whether the Tribunal erred in relation to the evidence of the secondary applicant

MIGRATION – judicial review – decision not to grant a Student (Temporary) (Class TU) visa – dismissal for non-appearance

MIGRATION – Student (Temporary) (Class TU) visa – Administrative Appeals Tribunal – judicial review – jurisdictional error – failure to take into account relevant considerations – no jurisdictional error – application dismissed.

BANKRUPTCY – Annulment - application pursuant to s 153B of Bankruptcy Act for annulment of bankruptcy – whether sequestration order should ever have been made – where bankrupt contends that judgment debt obtained by fraud or misconduct of petitioning creditor or legal representatives – whether court should exercise discretion to go behind the judgment – where allegations about validity of judgment debt have previously been agitated – where Supreme Court of Victoria made findings about circumstances leading to default judgment – where this court previously held sequestration order properly made – whether s 153B gives rise to a new occasion for exercise of discretion to go behind judgment – whether discretion should be exercised 
BANKRUPTCY – Statement of Affairs - application pursuant to s 33A of Bankruptcy Act to amend date of filing Statement of Affairs – whether bankrupt’s statement of affairs should be deemed to have been filed at earlier time – whether bankrupt believes on reasonable grounds that statement of affairs was previously filed with Official Receiver – whether statement of affairs compliant – where no objective evidence of earlier filing – where later produced document has been signed and pre-dated - where no reasonable grounds for the claimed belief – consideration of grounds relevant to the exercise of Court’s discretion 
BANKRUPTCY – Proposal to Creditors for composition of debts - application for declarations and orders pursuant to s 73 of Bankruptcy Act requiring Trustee to put composition proposal to meeting of creditors – whether composition proposal is compliant with requirements of Act – whether mandatory for Trustee to convene meeting of creditors – where proposal is vague, confusing or otherwise inept – where proposal gives no guarantee or security of Trustee’s remuneration and costs and expenses of administration – where proposal leaves trustee exposed to ongoing costs after annulment – whether creditors can amend proposal at meeting - where judgment of Trustee is that composition proposal is non-compliant – whether court should exercise discretion to require proposal to be put to creditors

HUMAN RIGHTS – Public interest immunity claim over material produced – Disclosure of confidential information – Claim upheld.

MIGRATION – protection (subclass 866) visa – extension of time – where application to the (then) Administrative Appeals Tribunal to review delegate’s decision was made outside the time prescribed – where Tribunal found it had no jurisdiction – where proposed review grounds do not engage with the decision made by the Tribunal – whether the inclusion of a defunct email address in the delegate’s notification of decision rendered the notification defective – where judicial review application made 163 days out of time – where there is no acceptable explanation for delay – where there is no arguable case of jurisdictional error – application to extend the 35-day period is dismissed

MIGRATION – application for judicial review – Student (Subclass 500) visa – decision of Administrative Appeals Tribunal – where delegate determined that applicant was not a genuine temporary entrant – whether Tribunal was required to consider hardship – whether the Tribunal properly applied Ministerial Direction No 69 – no jurisdictional error – application dismissed

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa–– judicial review of a decision of the Administrative Appeals Tribunal – no approved nomination at time of decision – no jurisdictional error established – application dismissed

MIGRATION – Protection (Class XA) (Subclass 866) visa – judicial review of a decision of the Administrative Appeals Tribunal – application for an extension of time to bring judicial review 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 – Employer Nomination Regional Sponsored Migration Scheme Visa Subclass 187 Direct Entry – judicial review of a decision of the Administrative Appeals Tribunal – error of law – procedural fairness – jurisdictional error not established – application dismissed

MIGRATION – student (subclass 500) visa – visa cancelled – breach of condition 8202(2)(b) of schedule 8 to the Migration Regulations 1994 (Cth) – decision of the (then) Administrative Appeals Tribunal to affirm delegate’s decision – applications for judicial review must be made by applicants within 35 days of the date of the Tribunal’s decision – applicant filed application for judicial review 35 days after time elapsed – satisfactory explanation for the delay – satisfied it is necessary in the administration of justice to grant an extension of time – application for extension of time granted – judicial review – whether the Tribunal copied without attribution or acknowledgment the delegate’s decision – whether the Tribunal failed to bring it’s own independent mind to bear on the correct or preferable decision on review – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to give clear particulars of information considered to be the reason, or part of the reason, for affirming decision under review – Tribunal’s decision attended by jurisdictional error – writ of certiorari issued – writ of mandamus issued

PRACTICE AND PROCEDURE – Application in a proceeding for lawyer for second respondent to be removed as lawyer on the record – relevant legal principles – applicant formerly deployed to mining sites by her employer – termination of applicant’s employment allegedly related, in part, to raising of sexual assault allegations concerning other employees on a mining site -  alleged sexual assault of current employee of a contractor reported at a mining site several months after termination of the applicant’s employment – applicant in correspondence with executives of miner and her former employer’s solicitors in relation to alleged sexual assault of current employee – whether solicitor acting as mere mouthpiece for former employer – whether solicitor misrepresented circumstances in relation to sexual assault – inherent jurisdiction of a court over its officers and processes – whether proper administration of justice requires that solicitor for former employer be restrained from acting for former employer. INDUSTRIAL LAW – Alleged contravention of general protections – alleged adverse action – termination of applicant’s employment.

INDUSTRIAL LAW – judgments and orders – slip rule - where pursuant to earlier reasons for judgment Court erroneously declared that second respondent failed to comply with three rather than with two compliance notices and erroneously ordered that the second respondent pay pecuniary penalties for three rather than two contraventions of s 716(5) of the Fair Work Act 2009 (Cth) – whether error due to accidental slip or omission – orders corrected pursuant to r 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

INDUSTRIAL LAW – general protections – whether adverse action taken against applicant – whether refusal to provide allegations details to the applicant constitutes adverse action – found refusal to provide details of the allegations does not constitute adverse action – whether the refusal to provide allegations details was because the applicant exercised a workplace right – found exercise of workplace rights were not operative reason for refusal to provide allegation details – whether a show cause letter constituted a threat to dismiss the applicant – found show cause letter does not convey a threat and accordingly does not constitute adverse action – reverse onus discharged by employer in relation to all three instances of adverse action – whether the respondent breached s 588 of the Workplace Injury Rehabilitation and Compensation Act 2013 by using a medical report to decide termination– found no tortious cause of action or breach of statutory duty – application dismissed.

MIGRATION –Student (Temporary) (Class TU) (Subclass 500) Higher Education Sector visa - application for judicial review – consent to review without a hearing – no duty to inquire about applicant’s consent – decision of Tribunal reasonable and logical - no jurisdictional error shown - application dismissed.

MIGRATION – Administrative Appeals Tribunal – Partner (class UK) (subclass 820) cancellation under s 116(1)(g) - whether the Tribunal failed to balance different factors – whether reg 2.43(1)(oa) is inconsistent with the Migration Act 1958 (Cth) -  whether undue findings of s 116(1)(a) were made – whether any jurisdictional error exists – application dismissed.

MIGRATION – student (subclass 500) – visa cancelled – breach of condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (Cth) – decision of the (then) Administrative Appeals Tribunal to affirm delegate’s decision – judicial review – whether Tribunal failed to give the applicant a fair hearing – whether Tribunal misapplied the law – whether Tribunal failed to consider extenuating circumstances – whether Tribunal failed to consider compelling circumstances – whether Tribunal failed to consider relevant facts – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed

MIGRATION – application for judicial review – protection visa – whether well-founded fear of harm – complementary protection – whether Tribunal considered gender in context of claims –whether failure to apply proper test for relocation – application dismissed.

MIGRATION – application for judicial review – Medical Treatment (Visitor) (Class UB) (Subclass 602) visa – non-appearance at scheduled hearing – whether decision to decide review and not to dismiss relevant application was reasonable – issue of materiality – application dismissed.

MIGRATION – judicial review of a decision of the Administrative Appeals Tribunal – refusal to grant Partner (Temporary) (Class UK) Subclass 820 visa – where applicant sought to satisfy visa criterion through claim of non-judicially determined family violence – where applicant failed to attend hearing before Tribunal – where Tribunal made a decision on the review without taking any further action to allow or enable the applicant to appear before it – where applicant failed to meet prescribed evidentiary requirements – no jurisdictional error – application dismissed

CONSUMER LAW - alleged misleading and deceptive conduct - subpoena compliance at issue - whether documents sought by subpoena subject to legal professional privilege – legal professional privilege engaged.

PRACTICE AND PROCEDURE – Application to review decision of a Registrar to set aside a subpoena to produce documents – whether subpoena issued for a legitimate forensic purpose – whether “on the cards” that subpoenaed documents will materially assist – whether application for subpoena an abuse of process – whether other sufficient cause - whether new claims of negligence, defamation and victimisation material - whether issue estoppel based on findings in relation to same documents in earlier bankruptcy notice set aside proceedings –whether production of documents a breach of Harman Undertaking – whether iniquity rule applicable

BANKRUPTCY – Creditors petition – application to review decision of a registrar to set aside a subpoena to produce documents – principles in relation review of Registrar’s decision – whether monies owed – whether other sufficient cause

MIGRATION – application for judicial review – Safe Haven Enterprise (Subclass 790) visa – where Immigration Assessment Authority affirmed the decision of the first respondent that the applicant is not a person in respect of whom Australia has protection obligations – whether the applicant was denied procedural fairness – found no unfairness arose – whether the Authority failed to exercise its discretion to obtain new information from the applicant under s 473DC – found the review was conducted in accordance with Part 7AA - found the Authority’s reasons for refusing to exercise its discretion under s 473DC were reasonable – found no jurisdictional error – application dismissed.

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal affirming delegate’s decision not to grant a visa – application for judicial review filed out of time – extension of time application – whether there was an adequate explanation for a moderate delay – whether there was an arguable case of jurisdictional error – extension of time application refused

MIGRATION – application for judicial review – Safe Haven Enterprise (Subclass 790) visa – where Immigration Assessment Authority affirmed decision of first respondent that first applicant is not a person in respect of whom Australia has protection obligations – whether the Authority’s findings were illogical or unreasonable – whether the Authority’s decision lacked an evident or intelligent justification – found the Authority’s reasoning was intelligent and its conclusion was open to it – whether the Authority failed to consider certain country information – found the Authority did not expressly refer to the country information but did consider the substance of the information in its reasons – found no jurisdictional error – application dismissed.

FAIR WORK – Oral application for an adjournment of the hearing by the Applicant on 13 November 2024 – evidence in final hearing concluded on 8 November 2024 – proceeding commenced by Applicant on 4 July 2023, oral application for adjournment on 13 November 2024 opposed by Respondent, oral application for adjournment dismissed.