Judgments

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 – Student (Temporary) (Class TU) Student (Subclass 500) visa – Refusal – Review of Administrative Appeals Tribunal (“Tribunal”) decision.

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 – 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.

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 – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicants student visas – whether the Tribunal failed to consider all the facts and circumstances of the applicants’ case – no jurisdictional error – application dismissed

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

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicants student visas – whether the Tribunal failed to consider, or failed to properly evaluate, all the evidence provided by the applicants – whether the Tribunal failed to properly conduct the review – whether the Tribunal failed to afford the applicants procedural fairness – whether the Tribunal failed to give proper reasons for its decision – whether the Tribunal used the factors in Ministerial Direction No 69 as a checklist – whether the Tribunal failed to assess all factors specified in Ministerial Direction No 69 – no jurisdictional error – application dismissed.

PRACTICE AND PROCEDURE – application for an extension of time to seek review of an exercise of power by a Registrar – where a Registrar summarily dismissed the applicants’ judicial review application – extension of time refused. 

MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa – Refusal – Review of Administrative Appeals Tribunal (“Tribunal”) decision.

MIGRATION LAW – Extension of time and substantive application considered in a single hearing – Where no unreasonableness in the Authority’s adverse credibility findings because of inconsistencies between the Applicant’s SHEV Statement and SHEV Interview – Where no failure to consider components of Applicant’s claim – Where the country information rationally supported the Authority’s finding that the Sri Lankan authorities would not tolerate religious extreme action – Usual and proper approach where substantive grounds had reasonable prospects to extend time even if substantive application dismissed

CONSUMER LAW – Application for orders – Jurisdiction of the Court with respect to a matter arising under the Personal Property Securities Act 2009 – Where vehicle in possession of a third party – Declaration that Applicant entitled to take possession of the vehicle – Declaration that Applicant may enter premises over which the Respondent has apparent control

MIGRATION – application for judicial review of decision of the Administrative Appeals Tribunal to affirm refusal of Skilled (Provisional) (Class VC) (Subclass 485) visa – consideration of cl.485.221 and 485.222 criteria, meaning and application of “closely related” and ANZSCO guideline – whether Tribunal’s decision otherwise affected by denial of natural justice – no error of jurisdiction is established – application dismissed with costs.

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

MIGRATION – costs – application for costs fixed in an amount above scale – fixed costs order made

MIGRATION – non-appearance by the applicant following an informal adjournment application made the morning of the hearing – application dismissed for non-appearance

MIGRATION – Student 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 – Medical Treatment 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).

INDUSTRIAL LAW – Small Claims – where applicant submitted he should have been placed at a higher level because of experience and qualifications – where the position was clearly an entry level position – where the applicant claimed he did not ever take a paid tea break and was not told that he could take such a tea break – application dismissed

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority affirming a decision to refuse to grant a protection visa to the applicant – whether the Authority unreasonably failed to exercise or consider the exercise of the discretion in s 473DC of the Migration Act 1958 (Cth) – whether the Authority made unreasonable, illogical or irrational findings with regard to s 473DD of the Migration Act – whether the Authority made findings based on no evidence – no jurisdictional error – application dismissed.

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority to affirm a decision not to grant the applicant a protection visa – whether the Authority failed to consider claims made by the applicant – whether the Authority failed to consider country information – no jurisdictional error – application dismissed.

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of an application for an extension of time – 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).

INDUSTRIAL LAW – application for pecuniary penalties – agreed contraventions - breach of National Minimum Wage Orders and Road Transport and Distribution Award 2010 – significant underpayment – no evidence of contrition or measures to prevent recurrence of offending practices - grouping of contraventions – significance of an earlier related proceeding – no declaratory relief granted – significant penalties imposed

MIGRATION – Medical Treatment visa- child intention of parents attributed to child applicant- applicant does not genuinely intend to stay temporarily in Australia -application for review dismissed

MIGRATION – protection visa - application for review of decision of the Administrative Appeals Tribunal – where applicant made generalised allegations of error which were not developed or particularised – no jurisdictional error established – application dismissed with costs.

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 – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed

MIGRATION – protection – application for judicial review of decision of Administrative Appeals Tribunal not to grant protection visas – where primary applicant fears harm due to Shia faith – where applicant claims family members killed by extremists – where there was no reporting of incidents – where adverse credit findings made by Tribunal - whether applicant is a high-profile or prominent Shia due to involvement in religious activities – whether Tribunal considered claims and integers of claims – whether claims clearly articulated or arise clearly from the materials – whether country information properly considered – whether risk is higher than low - whether findings and reasoning irrational - no error found

MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – whether the IAA denied the applicant procedural fairness by failing to raise alleged critical matters with the applicant or extend him a real opportunity to comment on those critical matters – whether the IAA failed to afford the applicant procedural fairness by denying him an opportunity to attend an oral interview – whether the IAA failed to consider the applicant’s protection claims – whether the IAA correctly assessed the applicant’s (lack of) citizenship – no jurisdictional error – request for ministerial intervention encouraged – application dismissed.

MIGRATION LAW – judicial review of a decision of the Administrative Appeals Tribunal to not grant the Applicant a Protection (Subclass 866) visa – criteria in s 36(2) of the Migration Act 1958 (Cth) – protection claims relating to loan sharks – adverse credibility findings – reasons demonstrate proper consideration of claims – no jurisdictional error identified or apparent – application dismissed with costs

PRACTICE AND PROCEDURE – application for substituted service – whether it is impracticable to serve documents by hand – whether the Court can be satisfied that the proposed method of service will result in the documents coming to the attention of the person being served – application for substituted service refused.  

PRACTICE AND PROCEDURE – application for an extension of time to seek review of a decision made by a Registrar – where the Registrar dismissed an application seeking reinstatement of a judicial review application – where the judicial review application had previously been dismissed for non-appearance under r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – application for an extension of time refused.    

MIGRATION – protection visa – application for review of decision of the Administrative Appeals Tribunal – where applicant contended the Tribunal erred in its reliance on facts from an internet source and otherwise invited the Court to engage in impermissible merits review – no jurisdictional error established – application dismissed with costs. 

MIGRATION LAW – judicial review of a decision of the Administrative Appeals Tribunal to refuse cancel a Student (Temporary) (Class TU) (Subclass 500) visa – consideration of the genuine temporary entrant criterion – Direction No. 69 – Applicant provided confirmation of enrolment but determined to not be a genuine applicant for entry and stay – whether Tribunal failed to properly consider the case or its reasons were generic

MIGRATION – application for review of decision of Administrative Appeals Tribunal to refuse the grant of a Partner visa – where husband engaged in sexual infidelity during marriage – where parties separated – whether relationship with other woman was “marriage-like” – where parties to the marriage recommenced cohabitation – where marriage ended due to family violence – whether a mutual commitment to a shared life together as husband and wife was ever present – error found 

MIGRATION LAW – application for review of registrar’s decision – where registrar summarily dismissed the judicial review application – refusal of Temporary Skill Shortage (Class GK) (Subclass 482) – sponsor company withdrew nomination application and is now deregistered – futility of judicial review application. MIGRATION LAW – extension of time of 47 days required – considerable delay for an application for review – no justification for delay – no reasonable prospects of success – extension of time not warranted – application for review dismissed with costs.

PRACTICE AND PROCEDURE – application for leave for respondent corporation to carry on proceeding without a lawyer – where applicant consents to the grant of leave – application granted.     

BANKRUPTCY - Application for review of sequestration order made by Registrar – whether bankruptcy notice was served on debtor – bankruptcy notice served – whether hearing of creditor’s petition should be adjourned pending determination of debtor’s application before the Administrative Appeals Tribunal seeking review of rejection of debtor’s objection to amended notices of assessment – application for review dismissed and sequestration order affirmed. 

MIGRATION - application for judicial review of a decision by an officer of the Administrative Appeals Tribunal regarding an application for fee reduction – whether the officer’s decision was illogical or unreasonable – application dismissed