Judgments

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

MIGRATION – NO APPROVED NOMINATION – no reasonable prospect of success -  orders made by registrar affirmed – application for review dismissed 

MIGRATION – Student visa – Application for an extension of time to commence judicial review application – Whether there was a satisfactory explanation for delay – Where Tribunal considered whether it was satisfied that the Applicant met the genuine temporary entrant criterion under cl. 572.223(1)(a) of Sch. 2 to the Migration Regulations – Where the Tribunal had regard to Ministerial Direction No. 53 – Where the grounds of the substantive judicial review application not reasonably arguable – Where the court was not satisfied that it is necessary in the interests of justice to extend time – Application for extension of time dismissed 

MIGRATION – Persecution – Review of Administrative Appeals Tribunal (“Tribunal”) decision – Protection visa – Refusal - No matter of principle.

BANKRUPTCY – interim application – where Trustee seeks an order under s 90-15(1) of the Insolvency Practice Schedule (Bankruptcy) authorising the sale of vehicles in his possession – where insurance on vehicles has ceased and no alternative option to insure the vehicles has been identified – where orders necessary to preserve the value of assets of the bankrupt estate – where orders operate pre-emptively to prevent a breach of the Trustee’s obligations under statute and general law 

BANKRUPTCY – application by trustee for orders and directions under s 90-15(1) of the Insolvency Practice Schedule (Bankruptcy) – whether funds received by bankrupt following date of bankruptcy are after-acquired property or income – where interested persons claim interest in funds based on an alleged breach of contract – where annulment of bankruptcy is foreshadowed – where ordinarily any surplus funds would be returned to the bankrupt – where instead the interested persons seek an order under s 154(3) of the Bankruptcy Act 1966 (Cth) that any surplus funds be paid directly to them – whether just and equitable to make order – whether trustee should be relieved of obligation to take further steps, including tracing, in the administration of the estate – directions given and orders made 

MIGRATION  – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise Visa (subclass 790) – consideration of whether the Authority failed to consider a relevant consideration – whether the Authority erred in its statutory task under ss 473DC or 473DD of the Migration Act 1958 (Cth) – Authority not obliged to request or seek further information – whether the Authority acted illogically or irrationally – application seeking impermissible merits review by the court – findings made reasonably open to the Authority on the material before it  

MIGRATION – application for judicial review of a decision made by a delegate of the Minister to refuse to grant the applicant a protection visa – whether the delegate denied the applicant procedural fairness – whether the applicant was unable to effectively participate in an interview with the delegate due to health or interpretation issues – whether the delegate erred in failing to consider the effect of a data breach on the applicant – no jurisdictional error – application dismissed.   

MIGRATION – Administrative Appeals Tribunal – Protection Visa – Review of a Registrar’s decision – Whether the Tribunal fairly considered all the Applicant’s claims – Whether the Tribunal fell into jurisdictional error – no jurisdictional error is made out –application dismissed.

INDUSTRIAL LAW – general protections – where applicant alleges adverse action taken against him because he exercised workplace rights and had protected attributes – both dismissal and non-dismissal forms of adverse action alleged – finding that no non-dismissal adverse action within the meaning of s 342 of the Fair Work Act 2009 (Cth) – where applicant absent from work for extended period without provision of medical certificates - identification of decision maker - whether employer’s stated reasons for dismissal determinative – whether presumption of prohibited reasons rebutted – reverse onus discharged by employer – application dismissed 

INTELLECTUAL PROPERTY – Practice and procedure – application by second respondent to dismiss so much of the proceeding as relies on allegations that, by reason of material posted on the first respondent’s Pages he maintains on Facebook and Instagram, being social media platforms the second respondent operates, the second respondent engaged in conduct in contravention of s 18(1) of the Australian Consumer Law (ACL) and in conduct that constituted the infringement of the applicant’s trade marks – whether the applicant does not have reasonable prospects of succeeding on his claims that the posting of material on the first respondent’s Facebook and Instagram Pages constituted the second respondent’s engaging in conduct for the purpose of s 18(1) of the ACL and the second respondent’s infringing the applicant’s trade marks – no reasonable prospects of succeeding on a claim based on trade mark infringement or under s 18(1) of the ACL to the extent the claims based on s 18(1) of the ACL do not rely on any wilful failure to do an act – whether the applicant’s having alleged that he had complained to the second respondent that posts made to the first respondent’s Facebook and Instagram Pages infringed the applicant’s rights and that the second respondent refrained from doing an act in relation to those complaints is reasonably capable of raising a claim that the second respondent wilfully refrained from doing an act, and for that reason had itself engaged in conduct, or whether the second respondent was otherwise a person involved in the first respondent’s alleged misleading or deceptive conduct constituted by the posting of material on the first respondent’s Facebook and Instagram Pages, or was otherwise a joint tortfeasor in relation to the first respondent’s alleged infringement of the applicant’s trade marks – not reasonably capable of giving rise to a claim based on the second respondent being a joint tortfeasor, but reasonably capable of giving rise to a claim that the second respondent wilfully refrained from doing an act, or was otherwise a person involved in the first respondent’s alleged misleading or deceptive conduct – order made requiring the applicant to provide particulars for the purpose of determining whether the applicant does not have reasonable prospects of succeeding on a claim that the second respondent has wilfully refrained from doing an act in relation to the posts about which the applicant complained or was a person involved in the first respondent’s alleged misleading or deceptive conduct.

MIGRATION LAW – whether the conceded error on the part of the Authority in the way in which it failed to consider new information under the provisions of s. 473DD of the Act was material or not – whether the applicant had provided a reasonable explanation for his failure to provide any documentary evidence of his identity, nationality or citizenship under the provisions of s. 91W of the Act – no jurisdictional error established – application dismissed.

MIGRATION LAW – whether the Tribunal engaged appropriately in a consideration of all of the applicant’s claims – whether the Tribunal had intellectually engaged upon a consideration of all relevant issues before it – no jurisdictional error established – application dismissed

PRACTICE AND PROCEDURE – where an application for transfer of the proceeding to the Federal Court was made – where it was submitted by Counsel for the applicant that notwithstanding the existence of a binding judgement of the Federal Court directly on point regarding Ground 1 of the Application for Review (a judgement which was adverse to the applicant’s case) the issue was nonetheless contentious, thereby justifying transfer on the basis that the issue involved a question of general importance – where this Court would not endorse or enable “Judge-shopping” or “Forum-shopping” -  where the application was an abuse of this Court’s process – application dismissed.

INDUSTRIAL LAW – Multiple contraventions of Fair Work Act 2009 (Cth) – Nature of employment relationship – Characterisation of employment relationship – Employee or tenant – Whether applicant employee of respondent – Right to control – Right to subcontract or assign – Where applicant and respondent entered into in a caretaker arrangement – Contracts – Contractual terms – Contractual interpretation – Where respondent in business as local Aboriginal land council – Application allowed – Applicant held to be part-time employee.

MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether errors in the applicant’s visa application vitiated the Tribunal’s assessment of the applicant’s credibility – whether it was open to the Tribunal to reject the applicant’s claims without positive evidence that the claims were false – whether the Tribunal was required to check the applicant’s claims – where the applicant attempted to raise a new claim for protection on judicial review – no jurisdictional error – application dismissed.

MIGRATION LAW – Protection Visa – Where Tribunal found that the main applicant had concocted his central claims of police detention for drugs and firearms offences, torture, payment of a bribe and release without charge –  Where the main applicant’s sister had made a statutory declaration which corroborated elements of the main applicant’s principal claim but where there were also inconsistencies between the statutory declaration and the main applicant’s claims – Whether there was a failure to give proper, genuine and realistic consideration to the issues before the decision-maker – Whether the decision-maker’s treatment of the corroborative evidence was legally unreasonable – No jurisdictional error – Application dismissed

MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) Subclass 590 visa – whether Tribunal fell into jurisdictional error – applicant not enrolled in a registered course of study – whether invitation to comment by Tribunal is valid – whether applicant was misled – application dismissed

MIGRATION – Skilled-Regional Sponsored (Subsequent entrant) (Subclass 489) visa – application for an extension of time – futility – application dismissed

BANKRUPTCY - application by trustee under s.146 of the Bankruptcy Act 1996 (Cth) for distribution of dividends in circumstances where no Statement of Affairs filed – factors relevant to the exercise of discretion – orders that the distribution of dividends proceed as if bankrupt had filed a Statement of Affairs as required by the Act – application granted with an order that the Trustees retain their costs of these proceedings.

BANKRUPTCY – application under s.139ZS of the Bankruptcy Act 1966 to set aside a notice under s.139ZQ of the Act – whether payments void under s.120 of the Act – value of consideration – significance of the payments from the bankrupt having been disbursed to third parties prior to the commencement of the bankruptcy – whether incorrect figure in the s.139ZQ notice requires it to be set aside.

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 – Judicial review – Regional Employer Nomination Visa – Where the nominator’s application had been refused – Where as a result of the refusal of the nominator’s application the Applicant could not meet a  mandatory criterion for the grant of a visa – Where the only decision available to the Tribunal was to refuse to grant the visa – Where a Registrar made a decision summarily dismissing the application for judicial review – Where the Applicant seeks an extension of time to bring an application for review of the exercise of a power by the Registrar – Where the underlying application has no reasonable prospect of success – Application for an extension of time to bring application to review of power of the Registrar dismissed  

BANKRUPTCY – Application of trustee under s 146 of the Bankruptcy Act 1966 (Cth) for distribution of dividends – where no statement of affairs filed by the Bankrupt with the Official Receiver – application heard ex parte – orders that the distribution of dividends proceed as if the Bankrupt had filed a statement of affairs as required by the Act – application granted 

BANKRUPTCY – application by trustee for orders and directions under s 90-15(1) of the Insolvency Practice Schedule (Bankruptcy) – whether funds received by bankrupt following date of bankruptcy are after-acquired property or income – where interested persons claim interest in funds based on an alleged breach of contract – where annulment of bankruptcy is foreshadowed – where ordinarily any surplus funds would be returned to the bankrupt – where instead the interested persons seek an order under s 154(3) of the Bankruptcy Act 1966 (Cth) that any surplus funds be paid directly to them – whether just and equitable to make order – whether trustee should be relieved of obligation to take further steps, including tracing, in the administration of the estate – directions given and orders made 

MIGRATION – decision of the Immigration Assessment Authority – where applicant claimed harm at the hands of a Sri Lankan paramilitary group – where applicant contends that the Authority failed to consider the particular detail of his claim which had consequences for his risk-profile – where Authority made explicit reference to claim and evidence directed at it –  where Authority finding comprehended the detail of the claim – whether Authority recorded finding about the activity of paramilitary group without evidentiary foundation or rational basis – where Authority incorrectly cited country information – whether error jurisdictional – application dismissed

FAIR WORK –section 715 Compliance Notice - café - penalty corporate employer $25,000 – penalty director $5,000   

MIGRATION – Application to review decision of the Immigration Assessment Authority (‘Authority’) – whether Authority failed to consider relevant considerations – whether Authority acted unreasonably – HELD that application for judicial review dismissed.  

MIGRATION – Application to review decision of the Administrative Appeals Tribunal – application dismissed. 

MIGRATION – Whether Tribunal constructively failed to exercise jurisdiction

MIGRATION – Application for judicial review – where Applicant applied for a Business Skills (class EB) Business Innovation and Investment (subclass 188 visa) – where delegate determined the Applicant did not satisfy clause 188.224 of the Migration Regulations 1994 (Cth) – terms and meaning of clause 188.224 considered – meaning of whether ‘the Applicant has overall had a successful business career’ – Held application for review dismissed. 

MIGRATION -  temporary protection visa – application for judicial review of decision of Immigration Assessment Authority – whether the Applicant was denied procedural fairness – whether the Authority failed to conduct its review – jurisdictional error not established – application dismissed with costs.  

MIGRATION – Protection visa – decision of the Immigration Assessment Authority – where Authority recorded finding that new information not credible – whether Authority misconstrued s 473DD(b)(ii) of the Migration Act 1958 (Cth) by assessing the truth of the new information rather than assessing its capacity to be believed – error identified from the language adopted by the Authority and the narrow focus of its inquiry – error material – writs issued  

MIGRATION – Medical Treatment visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of the 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).

BANKRUPTCY – application for review of a registrar’s decision – decision of judicial registrar to sequester the estate of the respondent debtor – extensive litigation history – consideration of application for discovery of documents – consideration of oral application for adjournment – application for review dismissed. 

MIGRATION – application for judicial review – where Administrative Appeals Tribunal affirmed decision of the first respondent that applicant was not a genuine applicant for entry and stay as a student – where first applicant and second applicant have separated – where third applicant is Australian citizen – whether the Tribunal failed to consider information before it, took into account irrelevant considerations, made erroneous findings or acted on mistaken presumptions. 

MIGRATION – Judicial review – Costs – Applicant successful party – Costs awarded to the Applicant as the successful party – Costs fixed in accordance with Schedule 2, Part 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 a fair indemnity for the successful party   

MIGRATION – application for judicial review – Protection (subclass 866) visa – where Administrative Appeals Tribunal affirmed decision of the first respondent that applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth)– where applicant confirmed at hearing that he did not rely on the ground articulated in his application – where applicant’s submissions both orally at the hearing and in material provided to the Court invite the Court to embark on impermissible merits review.  

MIGRATION LAW – Application for judicial review– Safe Haven Enterprise Visa – where applicant engaged registered migration agent to provide submissions to the Immigration Assessment Authority – where migration agent provided pro forma submissions containing personal information relevant to different person – where Immigration Assessment Authority provided opportunity for revised submissions – where revised submissions contained similar or identical submissions as first submissions – whether it was legally unreasonable for the Authority to rely on the revised submissions – whether it was legally unreasonable for the Authority not to seek or consider seeking new or further information 

INDUSTRIAL LAW – Termination of employment – alleged adverse action – alleged contravention of workplace right – where multiple decision-makers – where several decision-makers not called to give evidence - whether reverse onus met. INDUSTRIAL LAW - alleged underpayment of wages – where relevant award not in evidence. INDUSTRIAL LAW – alleged failure to include information on payslips – where no payslips in evidence. PRACTICE AND PROCEDURE – Effect of a notice of discontinuance 

FAIR WORK – Costs – Whether s. 570 of the Fair Work Act applies to a proceeding in which the court decides that it does not have jurisdiction as to one of the claims in the proceeding – Section 570 applies – Where proceedings not instituted without reasonable cause – Where Court not satisfied that a party’s unreasonable act or omission caused the other party to incur costs – No order as to costs  

BANKRUPTCY – Application of trustee under s 146 of the Bankruptcy Act 1966 (Cth) for distribution of dividends – where no statement of affairs filed by the Bankrupt with the Official Receiver – application heard ex parte – orders that the distribution of dividends proceed as if the Bankrupt had filed a statement of affairs as required by the Act – application granted  

MIGRATION – Protection visa – Application for extension of time to commence judicial review application – Where there is a delay of 16 months – Where no satisfactory explanation for the delay – Where the “real chance” test under the refugee criterion and the “real risk” test under the complementary protection criterion import the same test – Where the Tribunal found that there was not a “real chance” or a “real risk” because the  chance or risk of harm was remote or insubstantial if the Applicant returned to the receiving country – Where the proposed grounds of judicial review are not reasonably arguable – Application for extension of time dismissed

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).

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – application for an extension of time – lengthy delay – no prejudice – inadequate explanation provided – no arguable case of jurisdictional error – extension of time refused.

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Department failed to invite the applicant to attend an interview – whether the Tribunal failed to provide the applicant with an opportunity to provide information – whether the Tribunal failed to comply with the guidelines set out in The United Nations High Commissioner for Refugees’ “Handbook on Procedures and Criteria for Determining Refugee Status” – whether the Tribunal failed to consider relevant information – whether the Tribunal exceeded its jurisdiction by inviting the applicant to attend a hearing – no jurisdictional error – application dismissed.  

MIGRATION – Injunction to prevent removal – relevant considerations.

MIGRATION – Writ for Habeus Corpus – pending decision of High Court of Australia in ASF17- s78B notice- reasonable time- short adjournment

INDUSTRIAL LAW – Practice and procedure – application by respondent for an order staying hearing submissions on damages, compensation, and penalties pending determination of application for leave to appeal against declarations that by purporting to summarily dismiss the applicant the respondent repudiated the applicant’s employment contract and contravened s 340(1) of the Fair Work Act 2009 (Cth) – whether proposed notice of grounds of appeal reveal reasonable prospects of success – whether balance of convenience favours the granting or refusal of a stay – application for a stay refused.

MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether the standard of interpretation at the hearing denied the applicant a fair hearing – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal’s approach to the assessment of the applicant’s credibility gave rise to jurisdictional error – no jurisdictional error – application dismissed.