Judgments

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 – 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 – Whether student visa applicant was genuine temporary entrant

PRACTICE AND PROCEDURE – Application for leave to institute fresh proceedings following vexatious litigant orders-application dismissed

HUMAN RIGHTS – where the applicant’s claim was dismissed – where costs usually follow the event – where amendments to legislation limiting the circumstances in which costs orders might be made in a proceeding commenced under the provisions of the Australian Human Rights Commission Act had no bearing upon the making of costs orders in the current proceeding – where the usual costs order was made.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – no jurisdictional error established – application dismissed.

PRACTICE AND PROCEDURE – Application for leave to institute proceedings following vexatious litigant orders - – proposed proceedings dismissed

MIGRATION – Judicial review – review of decision of the Immigration Assessment Authority – whether unreasonable failure to exercise power to invite applicant for interview – where different findings less favourable to applicant made by the Immigration Assessment Authority – where Minister’s delegate had benefit of observing applicant’s demeanour – whether reasoning in relation to credibility irrational or illogical – whether reasoning in relation to credibility unreasonable – whether credibility reasoning made by reference to a false factual premise – whether material jurisdictional error

 MIGRATION – reasons for judgment delivered ex tempore – application for extension of time –  where substantive application seeks judicial review of a decision of the Administrative Appeals Tribunal to affirm a delegate’s decision not to grant a protection visa –  application is dismissed with costs.

MIGRATION – Judicial review application – decision of Immigration Assessment Authority – affirmation of refusal to grant Safe Haven Enterprise visa – citizen of Sri Lanka of Tamil ethnicity – family support for the Liberation Tigers of Tamil Eelam – personal assistance to the Tamil National Alliance in parliamentary elections – alleged threats to and abduction by paramilitary groups – single unparticularised ground of review – further grounds raised orally at hearing – whether failure to understand threats and risks of harm from paramilitary groups – whether failure to consider evidence of political activity in correspondence from local officials – where correspondence not provided in translated form – whether treatment available in Sri Lanka for mental health conditions and following liver transplant – whether failure to understand medical treatment needs and available services following liver transplant – whether failure to understand mental health needs – whether jurisdictional error.

MIGRATION – Where there was a delay of 136 days in filing an application for review of the decision of the Tribunal – where there was no reasonable explanation provided in any affidavit for the delay – where the substantive grounds of review lacked merit and were not arguable – no jurisdictional error established – application dismissed.

MIGRATION – Judicial review – decision of the Immigration Assessment Authority – citizen of Pakistan – Pashtun Shi’a Muslim of the Turi tribe – whether failure to take into account relevant and cogent country information – whether findings legally unreasonable – whether unreasonable failure to consider matters raised – whether finding concerning applicant’s ability and willingness to travel and associated conclusion regarding risk of harm was made without evidence or was legally unreasonable – whether failure to consider claim concerning fear of harm whilst travelling and whether fear of harm was well – founded – whether material jurisdictional error

MIGRATION – judicial review – protection visa –whether Tribunal failed to inquire – whether inquiry obvious – whether inquiry would have gleaned information that could have led to a different outcome – no jurisdictional error established – application dismissed.

MIGRATION – Protection (Subclass 866) visa - Application for judicial review – Where applicant failed to attend scheduled hearing – Application dismissed.

MIGRATION – work skilled (subclass 457) visa – visa refused – first applicant in breach of cl 457.223 of sch 2 to the Migration Regulations 1994 (Cth) as she was not the subject to an approved nomination with a prospective employer – decision of the former Administrative Appeals Tribunal (Tribunal) to affirm the delegate’s decision – judicial review – whether the applicants were appropriately notified of the changes to the subclass 457 visa scheme – whether the applicants received the Tribunal’s correspondence to comment on the changes to the subclass 457 visa scheme – whether the applicants were given sufficient time to procure a nomination approval – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed

MIGRATION – Student visa – Application for judicial review – Where applicants failed to attend scheduled hearing – Application dismissed.

BANKRUPTCY – Creditor’s Petition for a sequestration order - Applicant holds multiple costs orders against Respondent – Respondent alleges he is a whistleblower and should have never had a judgment made against him – Respondent alleges he does not owe the costs debt in question – whether there is other sufficient cause to apply court’s discretion to not make sequestration order- Respondent alleges he has multiple ongoing claims against Applicant in other courts for an equivalent and/or greater amount than the debts claimed against him – Respondent alleges Applicant pursuing sequestration order with intent of securing object other than recovering a debt – namely to stifle ongoing claims in other courts – whether issuance of bankruptcy notice amounts to an abuse of process

MIGRATION – Protection (subclass 866) visa – Application for review of Registrar’s decision – Extension of time of four days required – Where Registrar dismissed the application for judicial review for non-appearance and then dismissed an application for reinstatement – Where the judicial review grounds have no reasonable prospects of success – Application for extension of time refused – Application for review of Registrar’s decision refused – Order for costs

MIGRATION – application for student visa – requirement to show current enrolment in course of study – request for adjournment of Tribunal hearing to obtain Confirmation of Enrolment – application dismissed

MIGRATION - Partner (Temporary) (Class UK) (subclass 820) visa – Whether the applicant is taken to have received notification of the delegate’s decision through the authorised representative – Where the Tribunal had no jurisdiction to review the matter – application for an extension of time – proposed grounds of judicial review have no merit – application dismissed with costs

MIGRATION – application for student visa – application lodged in person at Department of Home Affairs – whether applicant failed to lodge application in the prescribed way – jurisdictional fact – application dismissed

MIGRATION – review of a decision of the Administrative Appeals Tribunal (the Tribunal) – employer nomination visa – whether the Tribunal misdirected itself when it concluded as a matter of law that the applicant’s employer was not the nominated sponsor – whether the Tribunal erred when it had regard to the employment arrangements at the time of hearing – whether the Tribunal improperly referred to matters that were the subject of a certificate issued under s 376 of the Migration Act 1958 (Cth) – application dismissed.

MIGRATION – protection visa – application for judicial review of a decision of the Immigration Assessment Authority – whether decision was affected by an unreasonable failure to consider inviting further response or evidence pursuant to s.473DC or otherwise legally unreasonable – no jurisdictional error established – application dismissed with costs.

MIGRATION – application for an extension of time for judicial review of a decision of the then Immigration Assessment Authority – where substantive application lodged 224 days (or 7 months and 10 days) out of time – where substantive application is futile and lacks merit –  extension of time ought not be granted and application refused.

MIGRATION – judicial review of Administrative Appeals Tribunal’s (the Tribunal) decision – protection visa – whether the Tribunal’s findings are legally unreasonable – jurisdictional error established.

MIGRATION – Administrative Appeals Tribunal - Visitor (Class FA) visa (subclass 600) refusal– Where Tribunal found the visa applicant would not stay temporarily in Australia due to the economic conditions in Lebanon – Whether Tribunal asked itself the wrong question – Whether the tribunal failed to take into account a relevant consideration – Error of the kind identified in Khanam – Application upheld

MIGRATION –Judicial review – decision of Administrative Appeals Tribunal – protection (class XA) (subclass 866) visa – whether Tribunal’s findings unreasonable – invalid certificate – whether denial of procedural fairness – no jurisdictional error established – application dismissed

MIGRATION — Judicial review — protection visa — non appearance of applicant — default judgment — leave for notice of discontinuance refused — application dismissed

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether applicant denied procedural fairness – whether Tribunal’s reasoning process was illogical and unreasonable - no jurisdictional error established – application dismissed.

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

INDUSTRIAL LAW – Adverse action – application to strike out statement of claim – where statement of claim clearly deficient – orders made to strike out statement of claim and permit the Applicant to replead, or set out her claims in an alternative form.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal cancelling student visa –whether Tribunal erred in exercise of discretionary power to cancel visa – whether Tribunal erred in dealing with medical evidence – no jurisdictional error established – application dismissed – costs ordered

MIGRATION – judicial review – cancellation of Subclass (Student) visa under s 116 of the Migration Act 1958 (Cth) for breach of a visa condition – whether the Tribunal in exercising its discretion whether to cancel the visa failed to consider relevant matters and took into account irrelevant matters – no jurisdictional error disclosed – application dismissed

MIGRATION– application for judicial review of a decision of the Administrative Appeals Tribunal to cancel a Student (Temporary) (Class TU) Higher Education Sector subclass 573 visa – whether the Tribunal considered the applicant’s circumstances and gave weight in accordance with law – application dismissed with costs

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 – jurisdiction of the court to deal with a claim for damages for false imprisonment – original proceeding being an application for habeas corpus.

MIGRATION – Whether Tribunal erred by misconstruing the term ‘exceptional reasons’ – where applicant twice foreshadowed discontinuance of proceedings and sought multiple adjournments

MIGRATION – judicial review of Administrative Appeals Tribunal decision – student visa – no jurisdictional error established – application dismissed.

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL – application to extend time to file the application – delay of 4 days – where the applicant’s oral application to adjourn the hearing due to unwellness not allowed – where the applicant failed to comply with orders to give further evidence and submissions after the hearing – where there is an insufficient explanation for the delay – where the proposed grounds of review lack merit – application for extension of time refused – application dismissed

MIGRATION – Protection visa – Application for judicial review – Whether Tribunal failed to consider relevant country information assessment – Identified error - Whether a material jurisdictional error – Review allowed – Writs issued.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing temporary graduate visa – whether Trades Recognition Australia validly appointed as relevant assessing authority – meaning of ‘body’ - no jurisdictional error established – application dismissed.

FAIR WORK – Compliance Notice

FAIR WORK – Reasonable belief – Section 716(1)(a) – Whether the Inspector reasonably believed that the employer had contravened terms of a modern award – Where the Compliance Notice did not specify each and every contravention but “roved” across a date range throughout a relevant period – Where the court held that employer’s system of conduct in paying a flat rate less than prescribed Award minimums was sufficient grounds for the Inspector’s reasonable belief that the contraventions occurred throughout the relevant period

FAIR WORK – Review of the Compliance Notice –Section 717(1)(a) – Whether the employer had not committed a contravention set out in the Notice because the modern award, the Social, Community, Home Care And Disability Services Industry Award 2010 did not apply to it – Where held that a community language school was an employer in the social and community services sector and the Award applied to it

FAIR WORK – Section 717(1)(b) – Whether the Notice set out “specified action to remedy the direct effects of the contravention” under s. 716(2)(a) – Whether the Notice set out “brief details” of the contravention under s. 716(3)(c) –Held Notice complied with ss. 716(2)(a) and 716(3)(c) –Where the court found that the First Respondent failed to comply with the notice under s. 716(5)

FAIR WORK – Accessorial liability – Where under s. 716(2)(a) the Inspector may require a person to take specified action “within such reasonable time as is specified in the notice” –  Where an officer of the FWO made an express representation that the First Respondent should not make payments at the time specified in the notice – Where the failure to comply with the Contravention Notice was a continuing contravention – Where the Second Respondent was an intentional participant in the contravention

FAIR WORK – Reasonable belief – Section 716(1)(a) – Whether the Inspector reasonably believed that the employer had contravened terms of a modern award – Where the Compliance Notice did not specify each and every contravention but “roved” across a date range throughout a relevant period – Where the court held that employer’s system of conduct in paying a flat rate less than prescribed Award minimums was sufficient grounds for the Inspector’s reasonable belief that the contraventions occurred throughout the relevant period

FAIR WORK – Review of the Compliance Notice –Section 717(1)(a) – Whether the employer had not committed a contravention set out in the Notice because the modern award, the Social, Community, Home Care And Disability Services Industry Award 2010 did not apply to it – Where held that a community language school was an employer in the social and community services sector and the Award applied to it

FAIR WORK – Section 717(1)(b) – Whether the Notice set out “specified action to remedy the direct effects of the contravention” under s. 716(2)(a) – Whether the Notice set out “brief details” of the contravention under s. 716(3)(c) –Held Notice complied with ss. 716(2)(a) and 716(3)(c) –Where the court found that the First Respondent failed to comply with the notice under s. 716(5)

FAIR WORK – Accessorial liability – Where under s. 716(2)(a) the Inspector may require a person to take specified action “within such reasonable time as is specified in the notice” –  Where an officer of the FWO made an express representation that the First Respondent should not make payments at the time specified in the notice – Where the failure to comply with the Contravention Notice was a continuing contravention – Where the Second Respondent was an intentional participant in the contravention

MIGRATION– application for review of registrar’s decision – extension of time of 17 days required – where Registrar dismissed the application for judicial review for nonappearance and then dismissed an application for reinstatement – Tribunal found no jurisdiction to review refusal of Business Innovation And Investment (Provisional) (Extension) (Subclass 188) visa – delay and lack of prospects of success of reinstatement application do not warrant an extension of time

MIGRATION – Protection visa – Application for judicial review – Whether Tribunal failed to identify country information – Whether findings supported by evidence – Outcome consistent with evidence – Application dismissed.

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal to not grant a protection visa – fear of harm as Berish member and from Malaysian authorities – lack of particulars – grounds of review not made out – application dismissed with costs