Judgments

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 – 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 – extension of time – 165 days out of time – protection visa – inadequate explanation for delay – no reasonably arguable case for jurisdictional error – 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 – whether the Tribunal failed to carry out a proper review – whether the Tribunal misconstrued or misapplied the regulations – no jurisdictional error established – application dismissed.

PRACTICE & PROCEDURE – where orders made requiring the respondents to enter an appearance and file a defence – where the respondents failed to comply with orders of the Court – where it was appropriate for judgment to be entered in default – orders accordingly. 

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA failed to apply correctly s 473DD of the Migration Act 1958 (Cth) in the manner contended by the applicant – whether the IAA failed to consider a claim or an integer of a claim – application dismissed

MIGRATION – application for review of a registrar’s decision – review application filed out of time – whether an extension of time should be granted – length of delay and explanation for that delay – any prejudice caused – merits of the underlying application for review – application dismissed.

MIGRATION – protection visa – application for judicial review of decision of Administrative Appeals Tribunal not to grant visa - claim of involvement with Malaysian gang members and illicit drug trafficking - whether Malaysian police and authorities can provide adequate protection - whether applicant a person of interest to authorities - where Tribunal found fear of persecution not well-founded - whether reasons of Tribunal internally incoherent - whether reasons legally unreasonable - reasons ambiguous but no jurisdictional error established

MIGRATION – Application for judicial review – cancellation of student visa – Convention of the Rights of the Child – whether claim was explicitly made or arose from material – whether Tribunal erred in considering – best interests of child – application allowed.

MIGRATION – Administrative Appeals Tribunal - student visa (class TU) (subclass 500) visa – Whether the applicant was enrolled in a course of study at the time of the Tribunal decision – Where the grounds of judicial review are not supported by particulars – No merit – Application dismissed.

MIGRATION – Where it was a pre-condition for the grant of the visa that there be an approved nomination in respect of the position the nominee sought to be employed in – where there was no approved nomination – no jurisdictional error established – application dismissed.

MIGRATION – whether the Tribunal failed to carry out a proper review – whether the Tribunal misconstrued or misapplied the regulations – no jurisdictional error established – application dismissed.

MIGRATION – Costs – Leave to file a Notice of Discontinuance – Costs consequent on filing of Notice of Discontinuance –  Order for costs in a fixed amount

BANKRUPTCY – Consequential issues following decision where creditor’s petition dismissed and sequestration order made by Registrar set aside – Order for unsuccessful creditor to pay the Trustee’s reasonable remuneration and expenses of administering the estate – Order for unsuccessful creditor to pay the Trustee’s costs of the proceeding – Whether costs of the respondent debtor should be taxed on an indemnity or standard basis – Order for unsuccessful creditor to pay the respondent debtor’s costs of the proceeding on a standard basis

 HUMAN RIGHTS – Application filed two days out of time – complaint terminated by Australian Human Rights Commission – extension of time granted

 MIGRATION – Registrar review application – where Applicant has requested multiple adjournments – whether a medical certificate provided by the Applicant is in accordance with Court orders – whether the matter should be summarily dismissed for non-compliance with orders – where Applicant’s case is hopeless in any event – application dismissed with costs.

MIGRATION – Administrative Appeals Tribunal – protection visa – whether a claim arose on the materials that the Tribunal did not consider – whether the Tribunal failed to afford the applicant procedural fairness.

MIGRATION – Administrative Appeals Tribunal – Whether the Tribunal’s findings of a breach of condition 8202 were contrary to s 119 of the Migration Act 1958 (Cth) – Whether there was an obligation to put information to the applicant pursuant to s 359A – whether the Tribunal’s use of the term “fundamental breach” in relation to the student visa was legally unreasonable – no merit – application dismissed.

FAMILY LAW – PARENTING – Family violence and abuse – Where the mother is the unchallenged residential parent – Consideration of the impact on the mother and her parenting as a consequence of family violence and abuse – Consideration of long-term supervision.

MIGRATION – Judicial review of a decision of the Administrative Appeals Tribunal affirming a refusal to grant student visa - Whether Tribunal misconstrued clause 500.212(a) of Sch 2 to the Migration Regulations 1994 – Where applicant wanted to support a family member in Australia for the duration of their, not indefinite, legal proceedings -  Where Tribunal found applicant did not satisfy cl 500.212 on the basis of cl 500.212(a) – Error of the kind identified in Eros - Jurisdictional error established

MIGRATION – application for review of decision made by registrar – where registrar summarily dismissed application for judicial review of decision of Administrative Appeals Tribunal – no appearance by applicant – application dismissed – costs ordered

MIGRATION – Judicial Review of a decision of the Tribunal to refuse the applicant a student visa – Genuine temporary entrant criteria – application dismissed

MIGRATION – extension of time – 13 days out of time – protection visa – inadequate explanation for delay – no reasonably arguable case for jurisdictional error – application dismissed.

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Student (Temporary) (Class TU) (subclass 500) visa – where applicant not enrolled in course of study – where cl 500.211 not met – no jurisdictional error established – application dismissed – costs ordered

CONSUMER LAW – COSTS – dismissal of Application in a Proceeding seeking orders for forensic imaging and access – Respondents seek party-party costs up to 12 June 2024 and costs on an indemnity basis thereafter – costs awarded according to scale

FAIR WORK – assessment of pecuniary penalties as against the second respondent – nature and extent of loss – specific and general deterrence - payment of penalty to be made.

MIGRATION – Student (Temporary) (Class TU) visa – decision of the Administrative Appeals Tribunal – judicial review – procedural fairness – whether the Tribunal had provided the applicant an opportunity to give evidence & present argument relating to the issues arising in relation to the decision under review under s360 of the Migration Act 1958 (Cth) (“the Act”) – whether the Tribunal had a statutory obligation under s 359AA or s 359A of the Act to give the applicant notice – whether the Tribunal complied with obligation to give reasons under s 368 of the Act – apprehended bias – whether the Tribunal identified a wrong issue – whether the Tribunal failed to take into account relevant considerations or took into account irrelevant considerations – unreasonableness – no jurisdictional error established – application dismissed.

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Student (Temporary) (class TU) visa – whether applicant satisfied genuine temporary entrant criterion – no jurisdictional error established – application dismissed – costs ordered

MIGRATION – application for judicial review of the decision of the Administrative Appeals Tribunal to not grant a protection visa – Applicant afforded procedural fairness and no obligation to provide further hearing before Tribunal – Tribunal’s mistaken conclusion was not a material error – consideration of an invalid visa application was not information within the meaning of s 424A of the Migration Act 1958 (Cth) as it was not the matter that undermined or rejected the Applicant’s claim – application dismissed with costs

MIGRATION – judicial review – sch 2, cl 500.212 Migration Regulations 1994 (Cth) - genuine applicant for entry and stay as a student – court’s role in examining Tribunal’s reasons when self-represented litigant – no jurisdictional error established

MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizen of Pakistan – whether failure to consider the risk of harm to the applicant in Islamabad in the context of whether it was reasonable for him to relocate from Parachinar to Islamabad – whether material jurisdictional error.

MIGRATION – Whether Tribunal properly considered evidence of applicant’s cousin in related reviews – whether Tribunal failed to put information to applicant from cousin for comment pursuant to s 424A

MIGRATION - costs – where costs of the proceeding significantly exceed the event based “scale” amount at Schedule 2 of Division 1, Part 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – where the applicant was wholly unsuccessful in the proceeding – consideration of factors relevant to the exercise of the discretion to order costs – costs as agreed or taxed.

MIGRATION – protection visa – application for judicial review of decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to properly consider corroborative evidence and therefore failed to complete its statutory task – jurisdictional error established – application allowed with costs.

FAIR WORK – interlocutory relief sought by way of injunction – current contract for service to end – injunction sought for parties to enter a further contract on the same terms – whether there is an arguable case – balance of convenience – application dismissed.

INDUSTRIAL LAW – Fair Work – penalties – the respondents were involved in contraventions by a corporation, which is now in liquidation – quantum of penalties agreed by the parties.

MIGRATION – Costs – Whether the Court ought to exercise its discretion to proportionally reduce the costs payable to the successful first respondent by 50% – where the applicant owed a duty to particularise the bases for such a claim – where the usual order as to costs being ordered on a party/party basis ought to apply – orders accordingly.

MIGRATION – Application for Review of a Registrar’s decision – Whether costs order can be set aside –Where the Applicant’s legal representative sought leave to file Notice to Withdraw as a Lawyer in Court – Leave not granted – Application refused.

MIGRATION – Contributory Parent (Migrant) visas -judicial review of decision of Administrative Appeals Tribunal not to grant visas – where applicants failed to disclose member of the family in visa application – where the applicants allege that daughter has been legally  “disowned” and no longer part of family unit – whether failure to declare daughter is false and misleading – where failure to meet visa criteria established - whether there compassionate or compelling grounds for waiving public interest criterion – where no grounds for waiver established – application dismissed

BANKRUPTCY – Review of Registrar decision dismissing application to set aside Bankruptcy Notice – where applicant alleges existence of counter-claim/set-off for purposes of s 40(1)(g) of Bankruptcy Act

MIGRATION LAW – Whether the Tribunal conducted a proper hearing – whether the Tribunal erred in its findings – no jurisdictional error established – application dismissed.

MIGRATION – application for judicial review – student visa – failure to appear at scheduled hearing – whether refusal to grant adjournment was reasonable – whether medical evidence insufficient – whether Tribunal acted unreasonably in refusing to reinstate the applicant’s review application – whether failure to consider relevant matters – application dismissed.

MIGRATION – protection visa (subclass 866) – visa refused – where first notification of a decision of a delegate of the (then) Minister for Immigration and Border Protection was invalid – where application for review to the (then) Administrative Appeals Tribunal not made within 28 days of the date of notification of the delegate’s decision – where first Tribunal dismissed the matter for want of jurisdiction – where second notice of the delegate’s decision given following BMY18 v Minister for Home Affairs [2019] FCAFC 189 – where second notification sent to incorrect email address – where applicant made a second application for review by the Tribunal more than 28 days after second notification where Tribunal found it had no jurisdiction to review the matter – judicial review – extension of time – applications for judicial review must be made by applicant within 35 days of the date of the Tribunal’s decision – where applicant made application for judicial review almost 3 years and 3 months after time elapsed – applicant in immigration detention – applicant given notice of involuntary removal from Australia – application for urgent injunctive relief to restrain removal of applicant from Australia – whether there is a serious question to be tried –  whether balance of convenience favours the grant of relief – injunctive relief granted

 MIGRATION – Administrative Appeals Tribunal - Safe Haven Enterprise Visa (class XE) (subclass 790) – whether the Authority was required to exercise the power in s 473DC -whether the Authority assessed the applicant’s risk of harm – whether the Authority’s finding was unreasonable – no merit – application dismissed.

MIGRATION – Administrative Appeals Tribunal – Protection visa (subclass 785) – where the grounds of judicial review are not supported by particulars – whether the Tribunal decision was unreasonable – no merit – application dismissed.

MIGRATION – extension of time application – dismissal of interlocutory application where applicant in default – non-attendance at hearing of extension of time application.

MIGRATION LAW – where the applicant made a second application for extension of time in respect of a visa refusal decision – where such application was an abuse of the process of the Court – where application was made some 2.75 years out of time – application dismissed.

INDUSTRIAL LAW – review of a decision of Registrar – hearing de novo – small claims – underpayment claim – employment period covers three days – whether engaged as a full-time employee or casual employee – evidence indicates casual employee – underpayment not demonstrated – application dismissed

PRACTICE AND PROCEDURE – oral application for a hearing to be adjourned – application granted.