Judgments

MIGRATION – protection visa  – decision of the Administrative Appeals Tribunal – where the Tribunal invited the applicant to comment pursuant to s 424A of the Migration Act 1958 (Cth) on potentially dispositive information – where the applicant alleges that the standard of interpretation at the Tribunal hearing was inadequate – where the applicant alleges bias on the part of the Tribunal – where instead the Tribunal was complying with its obligations to afford the applicant procedural fairness – where in the absence of particularisation and a transcript the allegation of sub-standard interpretation cannot succeed – application dismissed with costs

MIGRATION – Protection 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 – jurisdictional error – incorrect information in visa application – cancellation decision –Administrative Appeals Tribunal – alleged failure to give invitation to attend Tribunal hearing – application dismissed.

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal was required to put information to the applicant pursuant to s 424A of the Migration Act 1958 (Cth) – whether the Tribunal’s decision was illogical or irrational – whether the Tribunal member was biased – whether the Tribunal relied upon country information which included incorrect or false information – no jurisdictional error – application dismissed.

MIGRATION – Protection 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 – judicial review – application for extension of time – dismissal for non-appearance – r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

MIGRATION – Protection 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 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 – decision of Immigration Assessment Authority – whether Authority misapplied or unreasonably failed to exercise the power in s 473DD of the Migration Act 1958 (Cth) – whether Authority failed to consider all relevant country information concerning conditions for returnees in Sri Lanka – whether the Authority failed to correctly apply the real chance test – no jurisdictional error – application dismissed with costs

MIGRATION – Protection visa – Where demeanour did not have a substantial bearing on the Authority’s adverse credibility finding as to the Applicant – Not unreasonable in the legal sense for the Authority not to interview the Applicant under s 473DC(3) of the Migration Act 1958 (Cth) – Application dismissed

INTELLECTUAL PROPERTY – application for summary dismissal of proceeding based on claims for trade mark infringement – whether applicant has reasonable prospects of successfully establishing that any one or more of the respondents used in Australia as a trade mark in the course of trade a name that forms part of the registered trade marks owned by the applicant – proceeding dismissed.

PRACTICE AND PROCEDURE – interlocutory application for an adjournment – application opposed – matter listed for a hearing of the interlocutory application for an adjournment – no appearance by or on behalf of the applicant – interlocutory application dismissed for non-appearance pursuant to r 13.06(1)(d) 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 Immigration Assessment Authority – whether the Authority made jurisdictional errors in its consideration of whether the applicant would face a real chance of serious harm – whether the Authority failed to consider the applicant’s chance of harm in the reasonably foreseeable future – no jurisdictional error – application dismissed.

MIGRATION – Administrative Appeal Tribunal – Student visa application – whether the applicant consented to the Tribunal determining the matter without a hearing –denied opportunity to appear before Tribunal – jurisdictional error established

MIGRATION – application for review of Registrar’s decision – where extension of time required to seek review of Registrar’s decision – consideration of matters relevant to exercise of discretion – where substantive application for judicial review has no reasonable prospects – extension of time refused

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – where the applicant alleges that his visa application is invalid as a result of fraud by his migration agent – finding that visa application is invalid.

MIGRATION – judicial review – jurisdictional error – legal unreasonableness – illogicality or irrationality – Administrative Appeals Tribunal – sch 2, cl 500.212 Migration Regulations 1994 (Cth) – student visa – application dismissed

MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed

MIGRATION – safe haven enterprise visa application – whether leave should be granted to further amend application for review – where additional ground of review relates to whether applicant’s wife’s claims ought to have been considered with applicant’s claim by Authority – whether wife’s claims subject of a valid application – leave granted to further amend application – grounds 1 and 3 of further amended applications established – Authority failed to consider photographs before it in HEIC format – wife’s claims were subject of valid application when request made for claims to be considered as family unit and wife’s claims not considered by Authority

MIGRATION – reasons for judgment delivered ex tempore – judicial review of a decision of the Administrative Appeals Tribunal to affirm a delegate’s decision to cancel the Applicant’s bridging visa – application is dismissed with costs.

MIGRATION – Administrative Appeals Tribunal – Temporary Protection (Subclass 785) visa – invalid s 375A Certificate – where the applicant claimed there was discriminatory access to medical services in receiving country - whether the applicant was a member of a particular social group – whether the Tribunal failed to exercise its jurisdiction – whether there was a failure to provide procedural fairness – application dismissed.

MIGRATION – judicial review – jurisdictional error alleged on the basis the Applicant needed to earn money in Australia to send to a friend in Malaysia who was ill to assist with medical expenses – application dismissed

MIGRATION – Judicial review application – decision of the Immigration Assessment Authority – citizen of Sri Lanka of Tamil ethnicity – claims of persecution on basis of ethnicity, perceived support for Liberation Tigers of Tamil Eelam, Australian Government data breach and asylum seeker status - single unparticularised ground of review – whether jurisdictional error otherwise – whether material jurisdictional error. EVIDENCE – New evidence – evidence post-dated decision of Immigration Assessment Authority – evidence not indicative of jurisdictional error – evidence irrelevant –evidence inadmissible

BANKRUPTCY – no appearance by the respondent – respondent served with the originating process – property vested in trustee – trustee entitled to relief

BANKRUPTCY – Creditor’s petition – Application for an extension of time to bring application for a review of a sequestration order made by a Registrar – Where the creditor did not prove service of the bankruptcy notice at the address of the place of residence of the person last known to the person serving the notice – Where debtor able to pay debts –  Where it was in the interests of justice to extend time to commence the review application – Creditor’s petition dismissed – Sequestration order set aside

MIGRATION LAW – Refusal to waive no further stay condition 8503 - 'compelling and compassionate' circumstances – procedural fairness – application dismissed.

MIGRATION – Protection Visa – Refusal – Review of Immigration Assessment Authority’s (“IAA”) decision. ADMINISTRATIVE LAW – Allegation that the IAA’s decision affected by jurisdictional error – No matter of principle.

MIGRATION LAW – Administrative Appeals Tribunal – Protection visa – No jurisdictional error established – Application dismissed.

MIGRATION – Application for a protection visa – Refusal – Review of the Immigration Assessment Authority’s (“IAA”) decision. ADMINISTRATIVE LAW – Allegation that the IAA’s decision affected by jurisdictional error – No matter of principle.

INDUSTRIAL LAW – Assessment of damages for wrongful termination of contract and compensation under s 545(2)(b) of the Fair Work Act 2009 (Cth) (FW Act) for losses suffered because of contravention of s 340(1) of the FW Act – whether employer who wrongfully summarily dismissed employee would have lawfully terminated the employment contract but for the wrongful summary dismissal – damages and compensation awarded on the basis that the employer would have retained the employee discounted to take into account contingencies.

INDUSTRIAL LAW – Costs – application for costs under s 570 of the Fair Work Act 2009 (Cth) – where latest iteration of the applicants’ pleadings were struck out in their entirety following a contested hearing – whether the failure of the applicants to replead and to defend the strike out applications involved an unreasonable act or omission – consideration of costs principles as they apply to s 570 of the Act – where respondents sought costs on an indemnity basis – where applicants sought that the taxation of any costs order be deferred pending the final determination of the proceeding – costs awarded on an indemnity basis to be taxed forthwith

INDUSTRIAL LAW – application for imposition of pecuniary penalty – admitted contraventions of ss 716(5) and 536(1) of the Fair Work Act 2009 (Cth) – where respondent has rectified underpayments and cooperated with the regulator by signing an agreed statement of facts – where respondent is no longer in business – where no need for specific deterrence – where respondent took responsibility for his actions despite challenging personal circumstances – modest penalty imposed

MIGRATION – Immigration Assessment Authority – protection visa – whether the Authority failed to consider certain matters – whether the Authority misapplied the law – whether the Authority’s decision was legally unreasonable.

 MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicants partner visas – where the Tribunal found the criteria in Schedule 3 to the Migration Act 1958 (Cth) were not met and that there were no compelling reasons not to apply those criteria – whether the Tribunal considered all relevant evidence advanced by the applicants – whether the Tribunal gave the applicants a proper opportunity to address whether there were compelling circumstances not to apply the Schedule 3 criteria – whether the Tribunal considered the matters relied on by the applicants cumulatively – whether the Tribunal displayed a reasonable apprehension of bias – no jurisdictional error – application dismissed.

 MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal erred by requiring the applicant to provide corroborative evidence – whether the Tribunal erred by failing to assess the applicant’s credibility having regard to her having been in an abusive relationship – whether the Tribunal erred by not taking into account the Tribunal’s Guidelines on Vulnerable Persons – whether the Tribunal erred by not inviting the applicant to comment on the five year delay between her arrival in Australia and her application for a protection visa.

MIGRATION – Administrative Appeal Tribunal – Student visa application – whether the applicant consented to the Tribunal determining the matter without a hearing –denied opportunity to appear before Tribunal – jurisdictional error established

MIGRATION – Judicial review – Student (Temporary) (Class TU) (Subclass 500) visa – Whether the Tribunal failed to take into account relevant considerations – No Jurisdictional error – Application dismissed

PRACTICE & PROCEDURE – application for orders for alleged contempt by respondent and his lawyers – no foundation for such application – application dismissed.

MIGRATION – application for judicial review – student visa – review of a decision by the Administrative Appeals Tribunal (Tribunal) – whether the Tribunal afforded procedural fairness – whether the Tribunal failed to give proper, genuine and realistic consideration – no judicial error established – application dismissed

MIGRATION - review of delegated summary dismissal decision by Registrar – review application made out of time – factors for extending time in context of review application –where substantive application for judicial review has no prospect – extension of time not granted

MIGRATION LAW – Administrative Appeals Tribunal - Student Visa (Class TU) refused - proper regard to s 359AA - natural justice and relevance of existing studies - application dismissed.

MIGRATION – Whether Immigration Assessment Authority erred in decision regarding whether to consider new information – whether error in not accepting particular claim

MIGRATION – Student (subclass 500) visa decision of the Administrative Appeals Tribunal – matter listed for final hearing – no appearance by or on behalf of the applicant – application dismissed pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

PRACTICE AND PROCEDURE – DEFAMATION –where by orders made on 16 May 2024 pleaded imputations were struck out but the applicant was granted liberty to file a document in the form set out as a schedule to reasons for judgment on the basis of which the orders were made in which he could replead the struck out imputations – where by further orders made on 16 May 2024 the applicant was given leave to provide particulars in support of claim that second respondent contravened s 18 of the Australian Consumer Law (ACL) on the basis of wilful inaction or as a person involved in another person’s contravention of s 18(1) – whether the applicant repleaded struck out imputations in a manner that cured their deficiency – whether the applicant provided sufficient particulars to disclose a case against the second respondent based on contraventions of s 18(1) of the ACL by means of wilful inaction or as an accessory in another person’s contravention – applicant failed to cure deficiencies in struck out imputations – the applicant failed to provide particulars – order made staying proceeding to the extent the applicant makes claims based on the second respondent’s contravening s 18(1) ACL by wilful inaction or by being an accessory in another person’s contravention of s 18(1) of the ACL – leave granted to file a further amended statement of claim in which the struck out imputations are identified.

MIGRATION – administrative law – judicial review – application for extension of time – dismissal for non-appearance – 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 Immigration Assessment Authority – whether the Authority misapplied s 473DD of the Migration Act 1958 (Cth) in assessing new information – whether the Authority acted unreasonably in failing to exercise its discretion in s 473DC of the Migration Act 1958 (Cth) to obtain new country information – jurisdictional error established – writs issued.

INDUSTRIAL LAW – Fair Work Act – compliance notice issued pursuant to s 716 – determination of primary and accessorial liability – failure to comply with compliance notice – where first respondent challenges the underlying underpayment contravention but has not sought to bring a review application under s 717 – liability established – declarations made – question of further orders reserved – matter set down for penalty hearing

MIGRATION – application for reinstatement – where Registrar summarily dismissed application for judicial review and applicant failed to appear at review hearing – student visa – decision of the Administrative Appeals Tribunal – whether the applicant satisfied enrolment requirement in cl 500.211(a) of  Schedule 2 to the Migration Regulations 1994 (Cth) – alleged failure of the Tribunal to consider relevant material– consideration of reinstatement principles – not in the interest of justice to allow reinstatement – application refused with costs

MIGRATION – application for judicial review of decision of the Immigration Assessment Authority – safe haven enterprise visa – where the Applicant claims there was a constructive failure by the Authority to exercise review jurisdiction – where the Applicant claims there was a failure to consider an integer of the claim – jurisdictional error established – material error found - application for review allowed

MIGRATION – partner visa – judicial review of decision of Administrative Appeal Tribunal not to grant visa – where visa application made more than 28 days after cessation of previous substantive visa – where applicant had been unlawful non-citizen for four years – whether compelling circumstances warrant waiver of visa criteria – whether Tribunal failed to consider relevant matters – whether applicant denied procedural fairness – whether Tribunal affected by apprehended bias – no error found

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal constructively failed to exercise its jurisdiction by adopting an erroneous approach to the criterion in question – application dismissed