Judgments

MIGRATION – student visa – decision of the Administrative Appeals Tribunal –  whether the applicant could satisfy the genuine temporary entrant criterion under cl 500.212(a) of  Schedule 2 to the Migration Regulations 1994 (Cth) – consideration of factors in Ministerial Direction 69 – consideration of the applicant’s circumstances in Australia and his home country— where applicant alleges the Tribunal drew illogical conclusions about his familial ties and incentive to return to his home country– no jurisdictional error – application dismissed with costs

MIGRATION – Judicial review application – decision of Administrative Appeals Tribunal to affirm refusal of Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa – where sponsor’s visa nomination application refused – whether denial of natural justice – whether jurisdiction to grant sponsor opportunity to resubmit visa nomination application – meaning of “position” in relevant criterion – whether remitter futile – materiality – whether material jurisdictional error

MIGRATION LAW – Protection visa – Application for an extension of time to commence judicial review proceeding – Adequacy of explanation for delay – Applicant’s proposed ground of review not reasonably arguable – No utility in granting an extension – Application dismissed

MIGRATION – application for review of a decision of the Administrative Appeals Tribunal – where applicant alleged fear of harm from money lenders in home country - where Tribunal accepted applicant had a genuine and credible fear of harm for the purposes of s 5J(1) of the Migration Act 1958 (Cth) but that effective protection measures would be available to the applicant in the receiving country– where applicant alleged that Tribunal misunderstood his evidence – where mistake of fact did not flow into dispositive findings - no jurisdictional error established – application dismissed with costs

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

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA unreasonably failed to consider exercising, or exercise, its discretion to invite the applicant to give new information – whether the IAA failed to give proper, genuine and realistic consideration to a claim – application dismissed

PRACTICE & PROCEDURE - Default judgment following non-compliance with Court rules and orders.

MIGRATION – Whether Tribunal erred in exercise of discretion to cancel visa – whether applicants denied procedural fairness

MIGRATION – Application for judicial review – failure to consider claim or component integers of claim – claim as advanced was considered – application dismissed.

MIGRATION – Application for judicial review – unparticularised grounds – where delegate accepted certain claims – where Immigration Assessment Authority (‘Authority’) found the claims ‘evasive’ and ‘vague’ and rejected the claims – where Authority listened to audio recording and did not call the Applicant for interview – whether Authority rejected the Applicant’s claims wholly or substantially on the basis of the manner in which the Applicant gave evidence – HELD that the Authority did not reject the Applicant’s claims wholly or substantially on the basis of his demeanour – application dismissed.

MIGRATION – Whether the authority had failed to carry out a proper review of the applicants’ claims – whether the Authority misunderstood or misapplied s. 473DD of the Migration Act – whether the Authority improperly received new information under s. 473DD of the Act – no jurisdictional error established – application dismissed.

MIGRATION – Judicial review – where Tribunal sent invitation to appear to incorrect email and incorrect postal address – where other email communications were sent to the correct email address – where Authority relied on repeated attempts to contact the Applicant before determining to proceed without requesting further information from the Applicant – whether actions of Authority unreasonable – HELD that the Authority acted unreasonably.

MIGRATION – Student (subclass 500) visa – decision of the Administrative Appeals Tribunal – where tribunal asked to determine whether applicant is enrolled in a course of study – no appearance by or on behalf of the applicant – no explanation or communication received from 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 – application dismissed.

MIGRATION – student (subclass 500) visa – decision of the Administrative Appeals Tribunal – where tribunal asked to determine whether applicant is enrolled in a course of study – current Confirmation of Enrolment not found – no appearance by or on behalf of the applicant – applicant is offshore, does not have a visa and cannot return to Australia – 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 – application dismissed.

MIGRATION – Protection Visa – Refusal – Review of Immigration Assessment Authority (“IAA”) decision – Criteria for considering “new information” under s 473DD of the Migration Act 1958 (Cth)

MIGRATION – applications for judicial review of decisions made by the Immigration Assessment Authority affirming decisions not to grant the applicants protection visas – where Authority obtained new country information – whether the Authority acted unreasonably in failing to exercise its discretion in s 473DC of the Migration Act 1958 (Cth) to invite the applicants to comment on the new country information – no jurisdictional error – applications dismissed.

PRACTICE AND PROCEDURE – BANKRUPTCY – interim application for an extension of time of one day for the filing on an application for review and stay of sequestration order made by a registrar – trustee appointed – prejudice to other persons – arguable case not supported by the evidence – balance of convenience not served by granting stay – other sufficient cause futile – application dismissed with costs

BANKRUPTCY – COSTS – where an application for annulment of an order for sequestration was dismissed – where the applicant bankrupt opposed the making of an adverse costs order – where costs ought to follow the event as the usual order – order accordingly.

BYL23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 745

MIGRATION LAW – Administrative Appeals Tribunal - Student (Temporary) (Class TU) Subclass 500 (Student) visa – Whether genuine applicant for entry and stay as a student – application dismissed

PRACTICE AND PROCEDURE – application to strike out a statement of claim – where statement of claim fails to disclose a reasonable cause of action and contains content that is likely to cause prejudice, embarrassment or delay in the proceeding – appropriate to strike out statement of claim and give applicant an opportunity to replead.

PRACTICE AND PROCEDURE – application to strike out a statement of claim – where statement of claim contains content that is likely to cause prejudice, embarrassment or delay in the proceeding – appropriate to strike out statement of claim – whether proceeding should be summarily dismissed.

MIGRATION – Student visa – Where the Tribunal did not fail to have regard to relevant considerations – Application dismissed

MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal affirming a decision to refuse the applicant’s nomination application – whether the Tribunal failed to carry out its statutory task in determining whether the position was genuine – whether the Tribunal failed to have regard to a relevant consideration or evidence – no jurisdictional error – application dismissed

MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal affirming a decision to refuse to grant the applicants Temporary Skill Shortage (Class GK) visas – where the Tribunal found that there was no approved nomination in respect of the position for which the visa was sought – where the sponsor separately sought judicial review of a decision of the Tribunal affirming the refusal of the nomination application – where the sole ground of application is based on an assertion of jurisdictional error in the decision relating to the nomination application – no jurisdictional error – application dismissed.

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal’s decision was affected by bias – whether the Tribunal failed to consider evidence – whether the Tribunal’s decision was open to it on the material before it or affected by any other form of legally recognisable error – application dismissed

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence or claims – whether the Tribunal relevantly erred by failing to make inquiries – whether the Tribunal’s reasoning was open on the material before it – application dismissed

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal made a finding without supporting evidence, failed to consider the applicants’ claims, or reasoned in a manner that was not open to it on the evidence – application dismissed

MIGRATION – Immigration Assessment Authority – protection visa – apprehended bias – application convicted of assault and indecent assault of a child under 16 years old – whether the Authority misconstrued s.473DC of the Migration Act 1958

MIGRATION – Whether Immigration Assessment Authority denied applicant procedural fairness by failing to alert him to potential adverse conclusions available on the material before it and thereafter invite comment

MIGRATION – Judicial review application - citizen of Sri Lanka – single unparticularised ground of review – whether any jurisdictional error in new information findings – whether any jurisdictional error in refugee and complementary protection findings – whether impermissible merits review – whether jurisdictional error otherwise – whether material jurisdictional error

INDUSTRIAL LAW - FAIR WORK – FAILURE TO COMPLY WITH COMPLIANCE NOTICE – application for imposition of pecuniary penalties and other relief – apprentice entitlements – pecuniary penalty ordered

BANKRUPTCY – Practice and procedure – Application for summary dismissal – Applicant seeks to examine the respondent and various associates – Where the respondent was discharged from bankruptcy 14 years ago – Documents sought relate to a period of 18 years – Where the trustee previously appointed to administer the estate does not support any further efforts being undertaken – Whether the summonses are oppressive and vexatious or an abuse of process – Status of applicant to bring proceedings – Matters to be considered

INDUSTRIAL LAW – Application for extension of time for general protections claim – relevant factors considered – reasonable explanation for delay – substantive claim has no merit – extension of time refused – remaining claims referred for case management.

INDUSTRIAL LAW – Fair Work – application for an extension of time in which to file a general protections claim – applicant not legally represented – claim not clearly articulated – claim unlikely to be successful.

BANKRUPTCY – Application for annulment of the bankruptcy – whether the bankrupt had satisfied the Court that a sequestration order ought not to have been made – failure of the bankrupt to so satisfy the Court – application for annulment dismissed.

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – where the Tribunal declined to refer the matter to the Minister for consideration of the Minister’s intervention powers in s 417 of the Migration Act 1958 (Cth) – where the only ground of application relates to the Tribunal’s refusal to refer the matter for Ministerial intervention – whether the Tribunal’s refusal to refer the matter for Ministerial intervention can establish jurisdictional error in the Tribunal decision.

MIGRATION – Immigration Assessment Authority –Safe Haven Enterprise Visa (SHEV) (Class XE) – Application for judicial review – Whether the Tribunal failed to complete its review function – Whether the applicant satisfied the relevant decision maker – Application dismissed.

FAIR WORK –- application for imposition of civil penalties for contraventions of the Fair Work Act 2009 (Cth) – consideration of relevant factors – where conduct appears deliberate or recklessly indifferent – need for deterrence - totality – penalties ordered FAIR WORK - application for costs – applicant seeks indemnity costs – where applicant forced to commence proceedings to enforce contraventions – where respondents have not engaged in any proceedings – consideration of conduct of the respondents – whether indemnity costs appropriate – where non-participation of respondents meant that applicant met with no resistance – respondent to pay costs on scale

FAIR WORK –- application for imposition of civil penalties for contraventions of the Fair Work Act 2009 (Cth) – consideration of relevant factors – where conduct appears deliberate or recklessly indifferent – need for deterrence - totality – penalties ordered FAIR WORK - application for costs – applicant seeks indemnity costs – where applicant forced to commence proceedings to enforce contraventions – where respondents have not engaged in any proceedings – consideration of conduct of the respondents – whether indemnity costs appropriate – where non-participation of respondents meant that applicant met with no resistance – respondent to pay costs on scale

MIGRATION – protection visa – application for review of a decision of the Immigration Assessment Authority –whether Authority fell into error in its application of s 36(2B)(a) of the Migration Act 1958 (Cth) – whether Authority failed to consider whether relocation within Sri Lanka would be reasonable – application dismissed

MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizen of Sri Lanka of Tamil ethnicity – whether decision inconsistent, illogical or unreasonable – where ground of review makes claims not made before the decision-maker – where ground of review contrary to applicant’s evidence before the decision-maker – whether merits review sought – whether material jurisdictional error

MIGRATION – application for an extension of time in which to seek review of a summary dismissal decision made by a Registrar – relevant considerations – where the substantive application had no reasonable prospects of success – application dismissed

MIGRATION – protection visa – application for review of a decision of the Immigration Assessment Authority – whether decision unreasonable, irrational or illogical – whether Authority fell into error in its selection and use of country information – whether Authority fell into error by failing to undertake a cumulative assessment of the applicant’s claims under s 36(2)(a) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed

INDUSTRIAL LAW – general protections – application which was deficient – order to file an amended application which established a cause of action – amended application still deficient – order to file a statement of claim – applicant did not file statement of claim – application by respondents for dismissal because of default by applicant where applicant claims that previous amended application was sufficient – applicant in default – application dismissed.

MIGRATION – Application for extension of time to bring proceeding – Relevant considerations.MIGRATION – Regional Sponsored Migration Scheme – nomination withdrawn – Refusal – Review of Administrative Appeals Tribunal decision.

PRACTICE AND PROCEDURE - requirement for personal service – whether dispensed with by contract – criteria for dispensing with service and for substituted service.

MIGRATION – Judicial review application – citizen of Sri Lanka – Tamil ethnicity – claims of harm on the basis of political allegiances and activities – single unparticularised ground of review – whether any jurisdictional error alleged – not merits review – whether material jurisdictional error.

BANKRUPTCY – where freezing and ancillary disclosure orders are made in favour of judgment creditors against judgment debtor in relation to the proceeds of sale of a property owned by judgment debtor – where before freezing orders are made judgment debtor transferred proceeds of sale to C and directed C to transfer money to JK and LY – where judgment debtor presented debtor’s petition after directing C to receive and transfer money to JK and LY – where before judgment debtor presents debtor’s petition to Official Receiver judgment debtor arranged XL and JL to transfer $30,000 (DVDO Client Trust Fund) to the firm of which the prospective trustee in bankruptcy is a principal – where debtor’s petition is accepted by the Official Receiver – where trustee recovers from JK and LY funds (Fund) that C at the direction of the judgment debtor had paid to JK and LY – whether at the time the debtor presented the debtor’s petition or the time at which the Official Receiver accepted the debtor’s petition the debtor did not satisfy the requirements of s 55(2A) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) and, for that reason, the debtor’s petition ought not to have been accepted by the Official Receiver – requirements not satisfied and order annulling bankruptcy made under s 153B(1) of the Bankruptcy Act – whether the judgment creditors are entitled to an order under s 154(3) of the Bankruptcy Act that the Fund be paid to them – not entitled because as judgment creditors they have no property interest in the Fund – whether judgment creditors could otherwise secure payment to them of the Fund – held judgment creditors could do so on the basis that on the making of an order annulling the bankruptcy the trustee would hold the Fund as trustee for the judgment debtor and it was open to the judgment creditors to apply for a charging order in relation to the Fund – orders made to give effect to that holding – whether judgment creditors had any similar claim to the DVDO Client Trust Fund – orders made granting judgment creditors liberty to apply to make such claim after giving notice to judgment debtor and to XL and JL – whether the trustee in bankruptcy engaged in any conduct which merited an order under s 90-15(3)(f) of Schedule 2 to the Bankruptcy Act denying him his remuneration and right to reimbursement – trustee engaged in such conduct, namely, being aware that his employee advised and assisted the judgment debtor to prepare and present the debtor’s petition but failing to exercise reasonable care to ensure that the judgment debtor’s circumstances met the requirements provided for by s 55(2A) of the Bankruptcy Act with the consequence that the work the trustee carried out as trustee was of no value and, moreover, interfered with the judgment creditors’ ability to enforce their rights.

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL – first applicant found not to be a genuine applicant for entry and stay as a student – whether Tribunal misunderstood and failed to consider the first applicant’s claims – no material error of fact made by the Tribunal