Judgments

MIGRATION – where applicant applies for an injunction restraining the Minister from removing the applicant from Australia up to a date that is eight days after the date on which the Administrative Appeals Tribunal determines an application for review the applicant made of a decision a delegate of the Minister made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) not to revoke a decision to cancel a bridging visa the applicant held – where the applicant applies for no other relief – whether question whether the injunction is to be granted is to be determined by reference to the power to grant injunctions conferred by s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) or whether it is to be determined by reference to the principles that govern the granting of an injunction against an officer of the Commonwealth under s 75(v) of the Constitution – question is to be determined by reference to the principles that govern the grant of an injunction under s 75(v) of the Constitution – principle by reference to which an injunction may be granted under s 75(v) of the Constitution is that it is necessary to ensure that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them – whether in seeking to remove the applicant from Australia the Minister or any of his officers have exceeded or will exceed power or have otherwise acted or will otherwise act unlawfully – application dismissed.

MIGRATION – protection visa – application for review of decision of the Administrative Appeals Tribunal – where applicant contended that the Tribunal erred in its application and interpretation of “refugee” and otherwise invited the Court to engage in impermissible merits review – no error of jurisdiction established or identified – application dismissed with costs.   

MIGRATION – Whether Immigration Assessment Authority failed to consider certain claims

MIGRATION – Protection Visa – Where the Applicant is a gay man who alleged he had a well-founded fear of persecution if he returned to Malaysia – Where the Tribunal found that the Applicant could internally relocate within Malaysia – Whether the Tribunal failed to afford the Applicant a hearing in accordance with its statutory obligations because it did not identify the critical issue of internal relocation so that the Applicant could give evidence and present arguments as to that issue – Ground not made out – Whether the Tribunal failed to understand and evaluate important evidence that because the Applicant was a gay man he could not live in Malaysia without hiding his sexuality or modifying his behaviour – Ground not made out  – Application dismissed 

MIGRATION – Administrative Appeals Tribunal – Student Visa (Subclass 573)  - jurisdictional error and materiality – no merit – application dismissed   

MIGRATION – Application for medical treatment visa found to be invalid – where applicant paid application fee which was not reimbursed despite rejection of application on basis of invalidity – where applicant claimed to not be able to access ImmiAccount 

MIGRATION - Review of Registrar decision made out of
time – where applicant failed to seek extension of time, elect for oral hearing or make written submissions – review application dismissed as incompetent  

MIGRATION – Where separate protection visa application made for child applicant with claims based on actions of parents – whether Tribunal conflated application of child with application of mother leading to apprehension of bias or constructive failure to undertaken the review 

HUMAN RIGHTS – COSTS – Where applicant wholly unsuccessful in establishing claims – whether usual rule that costs follow the event dislodged by respondents’ alleged misconduct – whether unrepresented litigant should pay costs on an indemnity basis for failure to accept Calderbank offer

MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority’s consideration of country information gives rise to apprehended bias – whether Authority conclusion was unreasonable or not rationally supported by country information – whether Authority misunderstood the ‘real chance’ or ‘real risk’ tests – whether Authority failed to consider claim that was clearly articulated or clearly emerged from material – Authority decision affected by jurisdictional error – writs issued.

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – application for an extension of time – minimal delay – no prejudice – satisfactory explanation provided – arguable case of jurisdictional error identified – extension of time granted – matter to be programmed and listed for a substantive hearing.

MIGRATION – Regional Employer Nomination visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of the application for an extension of time – parties provided proposed orders (not yet consented to by the Minister) – orders made in any event – application for an extension of time refused.   

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal breached “various sections” of the legislation by failing to properly review the decision before it or by failing to act in a way that was fair and just – whether the Tribunal failed  to provide proper reasons for its decision – whether the Tribunal failed to objectively consider the totality of the evidence or erred in evaluating the evidence before it – whether the Tribunal failed to consider all of the factors set out in the relevant Ministerial Direction – whether the Tribunal erred by failing to consider that the applicant would be unable to return to Australia if she visited India – no jurisdictional error – application dismissed.   

MIGRATION – application for review of a decision of the Immigration Assessment Authority – where applicant claimed to fear harm based on his association with individuals who had been kidnapped and/or murdered – where applicant participated in interview with delegate – where applicant alleged that his participation was compromised by communication difficulties and lack of legal representation – where delegate decision referred to photographs appearing on the applicant’s smartphone – where photographs not before the Authority creating an “informational gap” – whether Authority acted unreasonably by failing to exercise or consider the exercise of s 473DC(3) of the Migration Act 1958 (Cth) to get the photographs – where the missing information was not of importance to the Authority’s reasoning and statutory task of review – no jurisdictional error – application dismissed with costs           

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal failed to consider relevant information – whether the Tribunal considered irrelevant information – alleged fraud by the applicant’s agent – Ministerial intervention – no jurisdictional error – application dismissed.   

INDUSTRIAL LAW – Interpretation of an enterprise agreement – orders and declarations to be made to give effect to reasons – directions for penalty hearing. 

CONSUMER LAW – application for orders under s 123 of the Personal Property Securities Act 2009 (Cth) to enter property to seize vehicle   

CONSUMER LAW – Chattel mortgage – Business purposes – Contractual right to enter premises and seize mortgaged goods – Right of entry does not extend to properties over which borrower does not have control. 

BANKRUPTCY – COSTS – whether costs should be awarded following successful application of trustee – where respondents have not participated in proceedings – exercise of court’s discretion – costs awarded in fixed sum

MIGRATION – Whether Tribunal acting as arbiter of doctrine – whether applicant denied procedural fairness – Tribunal not required to put conclusions to applicant for comment – whether duty to inquire

MIGRATION – Application for injunctive relief – Bridging E Visa – Costs – Relevant considerations

MIGRATION LAW – Cancellation of student visa because the First Respondent was satisfied that its holder was not or was not likely to be a genuine student – Whether there was a failure to take notice and account of a governmental policy – Facts did not engage the policy –Whether the decision was affected by legal unreasonableness because of illogical or irrational reasoning – No illogical or irrational reasoning – Any error not material – Application dismissed

PRACTICE AND PROCEDURE – Deregistration of corporate party – abatement of proceeding – application no longer competent – dismissal.

INDUSTRIAL LAW – whether applicant who was employed by respondent as a Private Client Adviser was covered by cl B6 of Schedule B to the Banking, Finance and Insurance Award 2010 (Award) – held covered – whether commission payments respondent made to the applicant could be set off against obligations respondent had to make payments under the Award – set off not available – declarations of contravention made.

MIGRATION LAW – application for judicial review – decision of Administrative Appeals Tribunal – protection (subclass 866) visa – no jurisdictional error – application dismissed with costs.

MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Temporary Graduate visa – whether the Tribunal committed a jurisdictional error by misunderstanding its statutory task – consideration of whether the applicant was afforded procedural fairness – Tribunal made a decision reasonably open to it on the evidence – Tribunal had no discretion to alter requirements for the visa – application dismissed with costs

MIGRATION – Judicial review – Administrative Appeals Tribunal decision – Business Skills (Residence) (Class DF) visas – where business is a family partnership – whether calculation of business turnover should include or exclude the Goods and Services Tax when determining if threshold amount was reached in the relevant period – whether Tribunal determined ordinary meaning of turnover – whether Tribunal had regard to context and purpose of use of turnover – whether error material - whether jurisdictional error - writs issued

WORDS AND PHRASES – “turnover”

MIGRATION – Judicial review application – decision of Administrative Appeals Tribunal – refusal of employer nomination scheme class 186 visa – dismissal for non-appearance

MIGRATION – application for judicial review of a decision made by the Immigration Assessment Authority to affirm a decision not to grant the applicant a protection visa – whether the Authority misapplied s 473DD of the Migration Act 1958 (Cth) – whether the Authority failed to consider a relevant issue – whether the Authority failed to consider country information – jurisdictional error established – writs issued.

BANKRUPTCY – Creditor’s petition – Based on judgment debt – Application to go behind judgment – Relevant considerations.

HUMAN RIGHTS – Disability discrimination – practice and procedure – application that respondent provide particulars of matters affirmatively raised in its defence – respondent ordered to provide particulars. 

MIGRATION – Urgent interlocutory application to restrain removal from Australia – where applicant seeks extension of time to file judicial review application – whether prima facie case exists – HELD application for injunction and application to extend time for filing refused. 

MIGRATION – Judicial Review Application – decision of Administrative Appeals Tribunal – citizen of India – refusal of student visa – where no enrolment in a course – where no confirmation of enrolment provided – where different dispositive issue at time of Administrative Appeals Tribunal hearing from time of delegate’s decision – where oral reasons for decision given on day of Administrative Appeals Tribunal hearing – where applicant requested written reasons for decision – where written reasons for decision not provided within prescribed time limitation – whether material jurisdictional error

MIGRATION – application for judicial review of decisions of the Administrative Appeals Tribunal to dismiss the applicant’s review application under s 362B(1A)(b) of the Migration Act 1958 (Cth) and to confirm that decision – whether the Tribunal failed to consider the applicant’s circumstances – whether the Tribunal failed to afford procedural fairness to the applicant – whether the Tribunal exercised its discretion reasonably – no jurisdictional error – application dismissed.    

MIGRATION – student (temporary) visa – application for judicial review – where Tribunal not satisfied applicant genuinely intends to stay in Australia temporarily – Tribunal did consider applicant’s ties to India amongst other required considerations in Ministerial Direction – reasoning of Tribunal not unreasonable or illogical – grounds of application reflect impermissible merits review – jurisdictional error not established – application for review dismissed 

MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – protection visa – whether the Tribunal committed a jurisdictional error by reasons of irrationality or unreasonableness – whether Tribunal gave proper consideration to applicant’s submissions and country information provided – where Tribunal’s findings reasonably open on the evidence before it – where the Tribunal’s consideration of country information and submissions is evidenced in its reasons – no jurisdictional error established – application dismissed with costs 

MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision made by Immigration Assessment Authority (Authority) – whether Authority failed to correctly apply the “real chance” test – application dismissed. 

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – where the Tribunal  dismissed an application under s 362B(1A)(b) of the Migration Act 1958 (Cth) due to the applicant’s non-appearance at a hearing and subsequently confirmed that decision – whether the applicant was properly invited to the hearing – whether the applicant was properly notified of the dismissal decision under s 362C of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.      

MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal to affirm a decision not to grant the applicant a student visa – whether the Tribunal failed to consider an integer of a claim which clearly arose from the material before it – no jurisdictional error – application dismissed.   

MIGRATION – application for judicial review of a decision made by the Immigration Assessment Authority affirming a decision not to grant the applicant a protection visa – whether the Authority made findings which were not open to it – whether the Authority made findings which were unreasonable – no jurisdictional error – application dismissed.   

MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise Visa – where adverse credibility findings were made by the Authority – whether the Authority fell into jurisdictional error by reason of a misapplication of the relevant law – consideration of the Authority’s application of ss 473DC and 473DD of the Migration Act 1958 (Cth) – consideration of the application of the ‘real chance’ and ‘real risk’ test by the Authority – whether Authority failed to consider relevant considerations – whether findings made by the Authority were legally unreasonable or lacked a probative basis – court cannot engage in impermissible merits review – no jurisdictional error emerges – application dismissed with costs 

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 was required to consider the possibility that a finding of fact might not have been correct – whether the Authority failed to consider an integer of the applicant’s claim which clearly emerged from the materials – whether the Authority made a finding that was illogical or irrational – no jurisdictional error – application dismissed.    

MIGRATION LAW – Whether the Tribunal was affected by any alleged fraud on the part of the third-party migration agent – whether the Tribunal had acted unreasonably in failing to adjourn the hearing before it so as to allow further time for the applicant to resolve a dispute with a university – no jurisdictional error established – application dismissed.  

MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise Visa – where Authority found Applicant not to meet refugee criteria or complementary protection criteria – adjournment request made at hearing – adjournment not granted – applicant claimed factual and legal errors present in Authority’s decision – factual or legal errors not identified – whether the Authority failed to afford the applicant procedural fairness – consideration of Part 7AA of the Migration Act 1958 (Cth) – no information gap between the delegate and Authority – no basis for a claim of unreasonableness – application dismissed with costs.  

MIGRATION – Administrative Appeals Tribunal – Student Visa (Subclass 573)  - jurisdictional error and materiality – no merit – application dismissed   

MIGRATION – Immigration Assessment Authority - Safe Haven Enterprise (subclass 790) Visa (“SHEV”) – where the Authority’s decision is a privative clause decision – whether there was an error in the Authority’s findings –  no jurisdictional error established – no merit – application dismissed.

MIGRATION – summary dismissal -application for review dismissed 

MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise visa – consideration of whether Authority failed to consider important information before it – whether Authority failed to assess whether there were exceptional circumstances warranting having regard to new information under section 473DD – Authority not statutorily obliged to provide reasons – operation of s 473EA of the Migration Act 1958 (Cth) – where Authority expressly considered all other new information not before the delegate – repeated and express reliance placed by Authority on new information – materiality conceded – jurisdictional error established – writ of certiorari issued quashing decision of Authority – Authority to redetermine application according to law 

INDUSTRIAL LAW – Practice and procedure – application for recusal – where a Judge delivers a judgment dismissing an application for a stay pending an application for leave to appeal (stay judgment) – where after a directions hearing the Judge causes an email (Email) to be sent to the respondent’s legal representatives making enquiries – whether a fair-minded lay observer might reasonably apprehend that the stay judgment was not even handed, or whether such lay observer might read the stay judgment as a draft respondent’s submission on appeal, and for these reasons reasonably apprehend that the Judge might not bring an impartial mind to the resolution of all outstanding matters - whether a fair-minded lay observer might reasonably apprehend that by causing the Email to be sent the Judge accused or inferred wrongdoing by the respondent’s legal representatives and for that reason the Judge might not bring an impartial mind to the resolution of all outstanding matters – application for recusal dismissed.

MIGRATION – Whether errors in consideration of inconsistencies by Tribunal – whether Tribunal failed to consider claims and mental state of applicant during hearing – whether Tribunal acting as arbiter of doctrine