Judgments

MIGRATION – student (class TU) (subclass 500) visa – visa refused – decision of the (then) Administrative Appeals Tribunal to affirm delegate’s decision – Tribunal not satisfied applicant is a genuine temporary entrant – whether Tribunal denied applicant procedural fairness – whether Tribunal failed to consider relevant material – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed

MIGRATION – Whether Immigration Assessment Authority failed to properly apply the well-founded fear test – whether Authority failed to take into account relevant considerations

MIGRATION – Judicial review – Administrative Appeals Tribunal – Protection visa – Bangladesh – Failure to consider an objection to relocation arising from a post hearing statutory declaration – Jurisdictional error established – Writs issued

MIGRATION – protection (subclass 866) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – where applicant alleges jurisdictional error – where applicant’s grounds of review are not particularised and lack merit – Tribunal’s decision not attended by jurisdictional error – application for review of Tribunal’s decision dismissed

MIGRATION – judicial review – protection visa – whether the Tribunal’s state of non-satisfaction that the applicant faces a real chance of suffering serious or significant harm on return to Sri Lanka because of her status as a Tamil widow was formed without probative evidence – whether an error in the process by which a state of mind is reached – no jurisdictional error established

MIGRATION – protection (subclass 866) visa – review of decision of the (then) Administrative Appeals Tribunal  – judicial review – definition of refugee – risk of persecution of significant harm – whether the Tribunal found relocation necessary to avoid risk of harm – whether internal relocation principle engaged – whether the Tribunal required to assess reasonableness of relocation – whether Tribunal failed to conduct relocation assessment –  Tribunal’s decision attended by jurisdictional error – writ of certiorari issued – writ of mandamus issued

MIGRATION – cancellation of subclass 457 visa under s 116 of the Migration Act 1958 (Cth) on the basis the applicant ceased employment with sponsor for a period which exceeded 60 consecutive days – applicant sought further nomination – nomination refused – review sought of nomination refusal – whether Tribunal acted unreasonably in affirming the cancellation of the applicant’s visa without awaiting the outcome of the application for review of the nomination refusal – no jurisdictional error disclosed – in any event if jurisdictional error was disclosed it is futile to remit to the Tribunal – application dismissed

INDUSTRIAL LAW – Commonwealth public service employment – Defence – Navy – contracting – various contraventions alleged -  request for flexible working arrangement – unauthorised absences from work – refusal of request to take paid annual leave – failure to pay notice or payment in lieu of notice of three weeks pay – failure to pay base rate of pay – various adverse actions alleged – coercion and undue pressure in relation to request for flexible working arrangements – coercion in relation to written notice of annual leave – coercion in relation to taking of annual leave – termination of employment – refusal to allow work from home – denial of request to start work later – manner of supervision – allocation of less meaningful tasks – exclusion from training activities – issuance of various instruction letters – referral of conduct to Directorate of Conduct and Performance – performance assessment outcome

PRACTICE AND PROCEDURE – Application for an extension of time to file an affidavit – extension of time – factors for consideration – where short extension of time not objected to – whether sufficient explanation for delay – no prejudice in short extension of time – whether affidavit assists with merit of application

PRACTICE AND PROCEDURE – Application for witness to give evidence by video link – delay in making application – whether disruption to duties of witness – where witness a carer for family member – whether evidence of need for and extent of care – case management considerations – length and complexity of evidence of witness – where lengthy cross-examination likely – costs of giving evidence in person

PRACTICE AND PROCEDURE – Application for access to audio recordings of first three days of substantive hearing

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 refused – proceeding dismissed.

HUMAN RIGHTS – Complaint to Australian Human Rights Commission (“Commission”) terminated for having been made more than 24 months after the events complained of – events complained of occurred more than 10 years before complaint made to Commission – application made to the Court consequent upon Commission’s termination of the complaint – application to the Court required antecedent leave – leave sought nunc pro tunc – considerations relevant to the granting of the leave sought.

CONSUMER PROTECTION – Interlocutory application as to amendment to Statement of Claim – Where both parties made an application for the other party to pay costs – Ordered that the Applicant pay the costs of the amendment on the basis that he sought a dispensation and on the basis of costs wasted at the interlocutory hearing because the Applicant ultimately sought to amend his statement of claim in a form not provided before or at the hearing – Costs fixed in a set amount by reference to the events based scale in Schedule 2 to the Rules and Schedule 3 to Federal Court Rules where the scale in Schedule 2 to the Rules was insufficient

BANKRUPTCY – Application for an extension of time in which to seek review of orders made by a Registrar, including a sequestration order – associated application seeking joinder and orders amending a bankruptcy notice and creditor’s petition, or substitution of a creditor – where the review application was filed nearly 11 months out of time – where delay not adequately explained – where action had been taken over that period and costs incurred on faith of the sequestration order – merits of the proposed review application do not outweigh the considerations against extending time – where necessity of orders sought in belatedly filed associated application has not been sufficiently demonstrated – extension of time application and associated 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 – 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 – 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 – Application for judicial review of a decision of the Immigration Assessment Authority – whether the Authority failed to apply the correct test in assessing whether new information is ‘credible’ for the purposes of s 473DD(b)(ii) of the Migration Act 1958 (Cth) – whether error is material – jurisdictional error established – writs issued.

MIGRATION – judicial review – decision of Administrative Appeal Tribunal to refuse protection visa – whether Tribunal misunderstood applicant’s claims - no jurisdictional error established – application dismissed.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – finding by Tribunal that no real chance applicant would experience mistreatment in Nigeria because of mental health disorder or condition – whether finding legally unreasonable or illogical – whether probative basis for Tribunal’s finding of no real chance of harm – no jurisdictional error established – application dismissed.

MIGRATION - Safe Haven Enterprise (SHEV) (Subclass 790) visa – Application for judicial review of a decision made by the Immigration Assessment Authority – Whether the Authority misapplied s 473DD – Whether the Authority failed to consider all evidence including country information – No jurisdictional error established – 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

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.

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.

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

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

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 – 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 (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 – 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 – 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 – 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 - 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 – 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.