Judgments

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision to cancel the applicant’s bridging visa – where the applicant seeks to also challenge the delegate’s decision under the ancillary or original jurisdiction of the Court – whether the Court has jurisdiction to review the delegate’s decision – the Court does not have jurisdiction to review the delegate’s decision – whether the Tribunal constructively failed to exercise its jurisdiction, or denied the applicant procedural fairness by misconstruing the evidence – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal decision and reasoning was unreasonable – whether the Tribunal asked itself the wrong question or took into account an irrelevant consideration – no jurisdictional error in the Tribunal decision – application dismissed.

MIGRATION – judicial review of decision of Immigration Assessment Authority to not grant a protection visa – citizen of Pakistan – fear of harm from Sunni extremists upon returning to Parachinar area as a Pashtun Shia Turi – fear of harm as a returnee asylum seeker - whether the IAA considered an express claim from the Applicant – local profile claim. MIGRATION – held - no misunderstanding of the claim by the IAA - IAA understood that the Applicant would return to Parachinar and considered the implications of a return to that area of Pakistan – application dismissed with costs

INDUSTRIAL LAW – COSTS – Where respondent made an offer to settle at an early stage of the proceeding, followed by two subsequent offers to settle – where the applicant failed entirely in his claim – where the applicant would have been better off had he accepted any of the three offers to settle made to him – where the applicant’s conduct was unreasonable – where party/party costs ordered to be paid by the applicant up until the time of deadline for acceptance of the first offer, and thereafter, on the indemnity basis.

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

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 claims made concerning new information – whether jurisdictional error otherwise – whether material jurisdictional error

BANKRUPTCY – application for adjournment refused - sequestration order affirmed

MIGRATION – Judicial Review – Whether the Tribunal’s decision was legally unreasonable – Where the Applicant did not appear at the scheduled hearing – Where the Tribunal’s dismissal of the application under s. 362B(1A) permitted the Applicant to apply to the Tribunal for reinstatement of the application – Where the Tribunal’s exercise of a statutory discretion fell within a range of possible, acceptable outcomes defensible in respect of the facts and the law – No legal unreasonableness – 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.

BANKRUPTCY – Registrar’s sequestration order – Application for review.

MIGRATION – Partner 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 – Student visa cancellation – decision of the Administrative Appeals Tribunal – whether the Tribunal denied the applicant procedural fairness by failing to warn her that she was not obliged to answer questions which might incriminate her – whether the Tribunal failed to properly consider evidence regarding the circumstances of the applicant’s offending – jurisdictional error established – writs issued.

FAIR WORK – costs - small claims procedure– where applicants wholly successful – where applicants are foreign students represented by legal centre – where solicitors and counsel represented applicants pursuant to costs agreements - whether conduct of the respondent caused applicants to incur costs unnecessarily – where respondent made multiple recusal applications and pressed unmeritorious defences – where respondent abandoned final trial - respondent to pay applicants’ costs – where costs should be fixed

MIGRATION – protection visa – application for judicial review of decision of Immigration Assessment Authority –where the Authority was not satisfied of exceptional circumstances and did not consider certain new information pursuant to s.473DD – where the Authority accepted various of the Applicant’s claims to have suffered serious harm in the past but found the chance of persecution to be remote and no real risk of significant harm on return to Sri Lanka – whether Authority’s decision affected by a failure to consider relevant considerations or an integer or material fact or information, an error of law, legal unreasonableness or illogicality – no jurisdictional error established – application dismissed with costs.

MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizen of Sri Lanka – whether investigation concerning letters from Terrorism Investigation Department to assess genuineness – whether duty to make inquiries – whether failure to take into account relevant considerations when assessing applicant’s credibility – whether restriction on answers given in evidence before the Delegate - whether material jurisdictional error  PRACTICE AND PROCEDURE – application to extend time for filing of originating application – where Minister consents to extension of time

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal made a jurisdictional error in its consideration of the applicant’s claim for protection on account of his bisexuality – no jurisdictional error – application dismissed.

INDUSTRIAL LAW – Whether applicant dismissed from employment for exercising workplace rights by making complaint in relation to employment, taking personal leave and/or making a workers compensation claim – whether applicant dismissed by reason of mental disability or taking leave for illness or injury – where respondents sought to rebut presumption under s 361 of the Fair Work Act by alleging dismissal was by reason of planned redundancy – whether redundancy expedited for prohibited reason/s – allegation of coercion

HUMAN RIGHTS – Disability discrimination – practice and procedure - application for further discovery that was ordered by reference to categories of documents – where the dispute about whether adequate discovery has been given is based on competing constructions of one of the categories of documents – whether the Court should determine competing constructions or instead grant the parties an opportunity to identify the issues on the pleadings to which the category of documents was intended to relate and agree on a mechanism for the production of documents that are relevant to those issues – matter listed for further directions. 

PRACTICE & PROCEDURE – Application for dismissal – Non-appearance of the applicant.

MIGRATION – application for judicial review – Student (Temporary) (Class TU) (Subclass 572) visa – where Administrative Appeals Tribunal affirmed decision of first respondent that the applicant was not a genuine applicant for entry and stay as a student – whether applicant denied natural justice – whether period of non-enrolment was a reason for the Tribunal’s decision.

MIGRATION – application for judicial review – Student (Temporary) (Class TU) visa – where Administrative Appeals Tribunal affirmed decision of first respondent that the applicant was not a genuine applicant for entry and stay as a student – whether the Tribunal acted unreasonably in not granting the applicant an adjournment of the hearing – whether the Tribunal erred by not accepting the applicant’s claims as to his motivation for studying in Australia.

MIGRATION – Judicial Review Application – citizen of Sri Lanka - decision of Immigration Assessment Authority – decision to affirm refusal to grant Safe Haven Enterprise visa – whether elements of decision concerning brother’s alleged rank in Liberation Tigers of Tamil Eelam and refusal to accept information associated with en masse processing of returnees inconsistent, illogical and unreasonable – whether material jurisdictional error

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – where the IAA found that claims made by the applicant were internally incoherent – where this finding resulted from a fundamental misunderstanding of the applicant’s claims due to interpretation error – application succeeds

MIGRATION – application for judicial review – Protection (subclass 866) visa – where Administrative Appeals Tribunal affirmed decision of the first respondent – where applicants assert they were not given the opportunity to fully present their case before the Tribunal – found no jurisdictional error on behalf of the Tribunal.

FAIR WORK – application for imposition of civil penalties – application for costs – where judgment entered in favour of applicant for contraventions of Fair Work Act 2009 (Cth) – where applicant partially successful – where respondent’s cross-claim dismissed – consideration of factors relevant to penalty –conduct of respondent considered – whether rejection of Calderbank offer was reasonable - whether indemnity costs warranted - penalties and costs ordered

INDUSTRIAL LAW – FAIR WORK – applicant seeks declaration of contraventions of the Fair Work Act 2009 (Cth) – contravention of civil remedy provisions – penalties sought - underpayment – where respondent cooperated by signing statement of agreed facts – where underpayment has since been rectified – declarations of contraventions and penalty orders made.

INDUSTRIAL LAW – application for review of a registrar’s decision – small claims – application seeking order for compliance with order of the Fair Work Commission – consideration of underpayment claims – consideration of accessorial liability of the second respondent

INDUSTRIAL LAW – General Protections – application filed out of time – application for extension of time – matters relevant to exercise of Court’s discretion –applicant’s evidence contradictory and inconsistent – found no acceptable explanation for the delay in filing – extension of time refused.

PRACTICE & PROCEDURE – Application for dismissal – Non-appearance of the applicant.

CONSUMER LAW – Application for orders under s 100 and s 101 of the National Credit Code (Code) in relation to default by borrower of terms of a credit facility – whether Code applies given borrower declared that the credit to be provided under credit facility was solely for business purposes –  Code does not apply – whether orders authorising entry into premises of debtor or under the apparent control of the debtor should nevertheless be made – declarations made.

ADMINISTRATIVE LAW – CHILD SUPPORT – registrable overseas maintenance liability – meaning of child – relationship not under age of 18 – no estoppel.

CHILD SUPPORT – appeal from the Administrative Appeals Tribunal – failure to have to regard to belated material conceded - found to be material - appeal allow\ed

PRACTICE AND PROCEDURE – adverse action – dismissal - application for leave to file further amended statement of claim – application made during closing submissions of trial – amendment directed at the identification of person whose conduct said to be engaged in by respondent for the purpose of 793(1)(a) of the Fair Work Act 2009 (Cth) – where evidentiary case emerged during cross-examination of respondent witnesses – where amendment opposed – whether proposed amendments liable to be struck out – where proposed amendments bring case run at trial in conformity with the pleading – application granted

MIGRATION – review of Administrative Appeals Tribunal (Tribunal) decision – medical treatment visa – refusal – no matter of principle.

MIGRATION – initial application for Safe Haven Enterprise Visa denied – adverse credibility finding against the applicant – no jurisdictional error established – application in a case dismissed

MIGRATION – Administrative Appeals Tribunal – Partner (Temporary) (Class UK) visa –Whether the Tribunal should have waived Schedule 3 criteria – Where the length of the relationship was a compelling reason not to apply Sch 3 – No jurisdictional error made out – Application dismissed.

FAIR WORK – PRACTICE AND PROCEDURE – application and statement of claim filed when applicant represented by solicitor – statement of claim struck out– non-compliance with subsequent orders by applicant– applicant no longer represented – application in a proceeding by respondents arising from defaults by applicant– proceedings dismissed for defaults

BANKRUPTCY – Review of registrar’s decision to make a sequestration order – hearing de novo – decision confirmed.

FAMILY LAW – parenting – discrete issue – all outstanding issues resolved by consent or on a final basis except watchlist and international travel orders – where the father holds concerns of the mother absconding with the children to Country B – travel to non-Hague Convention counties – where the mother is a Country B citizen and an Australian permanent resident – risk that children may be retained outside Australia outweighs benefits of travel

FAMILY LAW – enforcement of property orders – agreement to give defaulting party another chance to comply with orders – orders for cancellation of title to land pressed by consent

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority to affirm a decision not to grant the applicant a protection visa – where the Secretary did not provide to the Authority, and the Authority therefore did not listen to, an audio recording of the applicant’s entry interview – whether the Secretary’s failure to provide the audio recording to the Authority was a breach of s 473CB of the Migration Act 1958 (Cth) – whether any breach was material – no jurisdictional error – application dismissed.

BANKRUPTCY – Creditor’s petition – Application for adjournment or stay pending determination of application for special leave to appeal to the High Court from debt proceedings – Relevant considerations. PRACTICE & PROCEDURE – Whether debt proceeding determined by reference to matter not pleaded – Circumstances in which proceeding may be determined by reference to matter not pleaded.

INDUSTRIAL LAW – breaches of civil remedy provisions of the Fair Work Act 2009 (Cth) – declarations of breach – imposition of pecuniary penalties – relevant considerations. INDUSTRIAL LAW – Fair Work Act 2009 (Cth) - Compliance notice – contravention – whether compensation for contravention available.

INDUSTRIAL LAW – FAIR WORK – application by a refugee immigrant for relief in relation to alleged contraventions of various minimum entitlements, regular payment and record-keeping obligations under the Fair Work Act 2009 (Cth) – where sole director of since deregistered company denied any employment relationship and therefore did not pay wages or keep any employment records – where the evidence established the existence of an oral and implied contract of employment – where the alleged contraventions were otherwise undefended – HELD that company contravened ss.45, 323 and 535 and respondent was involved within the meaning of s.550(2) – question of what (if any) relief to be heard separately.

INDUSTRIAL LAW – Practice and procedure – application for summary dismissal of claims on the ground that the applicants brought the same claims in the Local Court of New South Wales each of which by consent was permanently stayed – order for summary dismissal made.

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal overlooked dealing with a claim – whether the Tribunal misunderstood or misapplied the concept of “serious harm” – whether the Tribunal considered the wrong question – application succeeds

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming cancellation of the applicant’s student visa – whether the Tribunal’s decision was relevantly affected by legal unreasonableness or illogicality – application dismissed

MIGRATION – Administrative Appeals Tribunal – review of decision – Student (Temporary) (Class TU) visa – failure to exercise discretionary powers – failure to adjourn s.363(1)(b) of Migration Act 1958 (Cth) – failure to write to the applicant to request further information s.359(2) of Migration Act 1958 (Cth) – whether Tribunal not postponing the decision and not writing to the applicant inviting further information exercised its discretion unreasonably – application granted.

MIGRATION - application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence or denied the applicant procedural fairness – application dismissed

MIGRATION - application for injunction to prevent deportation until judicial review is heard – serious question to be tried – balance of convenience – application dismissed