Judgments

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

MIGRATION – Student 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).   

MIGRATION LAW – whether PIC 4003(b) precluded the exercise of a discretion by the Minister – whether PIC 4003(b) was repugnant to the provisions of s. 501 of the Migration Act – whether a determination by the Foreign Minister concerning a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction was contrary to the scheme of the Migration Act – no jurisdictional error established on the part of the Administrative Appeals Tribunal – Application for Review dismissed.   

FAIR WORK – application in a proceeding by respondent for summary dismissal – consideration of prospects of success of applicant’s claims – consideration of section 341(1)(c) Fair Work Act 2009 (Cth) – application in a proceeding dismissed – orders for future progress of matter. 

INDUSTRIAL LAW – where respondent failed to pay entitlements due to employees at the conclusion of their employment – where respondent co-operated with the applicant in resolving the proceeding – where a Statement of Agreed Facts helpfully filed – where declarations and orders made accordingly. 

MIGRATION LAW – Where PIC 4020(1) not satisfied - whether PIC 4020(4) satisfied – no jurisdictional error established on the part of the Tribunal – Application dismissed. 

MIGRATION LAW – whether a condition prohibiting the making of an on-shore visa application should be waived on compelling and compassionate grounds – whether the applicant entered into a carer situation in circumstances where there was no evidence before the delegate as to the state of health of the person being cared for – no jurisdictional error established – application dismissed.  

FAIR WORK – Application for civil penalty – penalty hearing – defaults by respondents – penalty hearing on the papers – appropriate penalty. 

PRACTICE AND PROCEDURE – Costs – Respondents’ application for costs following discontinuance – Relevant considerations.  

CONSUMER LAW – agreement for the development and release of an online dating app – where Second Respondent was a director of the First Respondent – where the Second Respondent made false or misleading representations to the First Applicant on behalf of the First Respondent as to both past and future matters – where representations were false or misleading - where the First Applicant suffered loss and damage as a result – where damages appropriate on a no-transaction basis – where an alternative claim under s. 238 of the ACL not pleaded and agitated at a stage too late in the proceedings – declarations and orders consistent with the orders of the Court to be forwarded to Judge’s Chambers. 

INDUSTRIAL LAW – Interpretation of an enterprise agreement – whether an employee was incorrectly paid – where clause in enterprise agreement makes provision for payment – where respondent contends reference that nothing in that clause will affect current arrangements in place at commencement meant no liability – interpretation of applicants preferred – declarations to be made. 

INDUSTRIAL LAW – Practice and procedure – application by respondent to set aside notice to produce issued by the applicant to the respondent – whether when determining whether to set aside the notice to produce it is relevant to determine whether the applicant had sufficiently articulated a claim for relief based on a breach of s 62(1) of the Fair Work Act 2009 (Cth) – relevant to so determine – whether the applicant had sufficiently articulated a claim for relief based on s 62(1) – applicant has not done so – notice to produce set aside – discussion about the meaning of the “overarching purpose” as provided for in s 190(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). 

MIGRATION – Judicial review application – review of decision of Immigration Assessment Authority – single unparticularised ground of review – whether jurisdictional error otherwise - whether material jurisdictional error  

FAIR WORK – application for imposition of penalties and other relief – failure to comply with compliance notice – where compliance notice and alleged underpayment of employees based on reasonable belief of Fair Work Inspector – consideration of factors relevant to penalty – whether Court should order compensation to employees to rectify alleged underpayment –- where employer liability for substantive breaches of Fair Work Act not pleaded or proved – whether reasonable belief of inspector is proper basis for compensation order – consideration of factors relevant to courts discretion to grant relief – consideration of statutory enforcement scheme - whether losses suffered by employees caused by non-compliance with compliance notice -  availability of alternative enforcement options – whether recent decisions of Court clearly wrong - penalties ordered –application for compensation and other relief refused

INDUSTRIAL LAW –contraventions – five-day trial – written submissions – change of pleadings – assessment of pecuniary penalty

INDUSTRIAL LAW – where applicant had employment terminated during probation period – where applicant claimed that termination was due to the making of complaints – where there was no evidence of any complaints – where no workplace right was illustrated – application dismissed – costs.

MIGRATION – protection visa – application for review of decision of the Administrative Appeals Tribunal – where applicant resiled from original protection claims at Tribunal hearing – where applicant introduced new claim to fear reprisal based on membership of the LGBTI community in Malaysia – where applicant questioned about his relationship history – where applicant contends Tribunal erred in asking questions about his relationship and by failing to give him the opportunity to produce further proof of his claims – where judicial review adjourned because applicant indicated he had paid a sum of money for a legal representative who failed to appear at the final hearing – where legal representative appeared at the next return date and orders made to facilitate opportunity to advance further grounds and submissions – where no further material filed – matter determined based on available material and earlier submissions – no jurisdictional error identified – application dismissed with costs

MIGRATION – application for review dismissed – no appearance by the applicant

PRACTICE AND PROCEDURE – suppression application refused – applicant to pay respondent’s costs of suppression application.

PRACTICE AND PROCEDURE – whether further documents allowed to be filed – whether documents relevant to the establishment of jurisdictional error in Administrative Appeals Tribunal decision. PRACTICE AND PROCEDURE – interlocutory application for matter to be heard face-to-face in Melbourne Registry of the Court – nature of judicial review proceedings – practice of the court – video link hearings – no prejudice identified – delay. PRACTICE AND PROCEDURE – interlocutory application for adjournment – new issue arising as to possible alleged fraud on the Administrative Appeals Tribunal – where at least some applicants not native English speakers and all self-represented – further short delay not prejudicial

PRACTICE AND PROCEDURE – application for dismissal for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) –application dismissed

INDUSTRIAL LAW – parties agreed in relation to liability of the Respondents regarding contraventions of the Fair Work Act  2009 (Cth) – considerations regarding appropriate penalty in the light of the High Court decision in ABCC v Pattinson – particular regard to “first time offender” here and “inadvertence” and “ignorance of the law” as opposed to concerted strategy of “deliberate recalcitrance” – in such cases, according to the High Court, a “modest penalty, if any” may be appropriate to achieve the principle of deterrence – modest penalties imposed.

FAIR WORK – PENALTY – Non-provision of pay-slips – Non-payment of entitlements significant in themselves and in proportion to employees pay – Arose over short period of time – Failure by respondent to engage and lack of contrition – Penalty imposed for contravention of s.716(1) – Penalty imposed for contravention of s.536(1)  

MIGRATION LAW – JUDICIAL REVIEW – Protection visa application – Whether there was a logical or probative basis for credibility findings – Whether there was a logical or probative basis for findings concerning mental health issues – Application dismissed   

MIGRATION LAW – JUDICIAL REVIEW – Protection visa application – Whether there was a logical or probative basis for dismissing evidence – Whether there was a logical or probative basis for credibility findings – Bogus identity document – Whether proper application of s.473DD of the Migration Act 1958 in relation to ‘new information’ – No jurisdictional error  

MIGRATION – Student 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).

MIGRATION – Student visa cancellation – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – applicant offshore – 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 LAW – JUDICIAL REVIEW – Partner visa – De facto relationship – Whether in a genuine and continuing relationship – Whether committed to a shared life – Limited period of cohabitation – Whether decision illogical and irrational – Whether decision makes unwarranted assumption – Not disclosing to spouse of criminal activity until sometime after – Whether proper consideration given – Whether significant and cogent documentary evidence taken into account – Application dismissed  

BANKRUPTCY – Ex parte injunction made in October 2022 on application of the bankruptcy trustee of third party to restraining him exercising his power of appointment to appoint a trustee to second respondent – injunction made on December 2022 restraining second and fourth respondent from dealing with proceeds of sale of real property subject to joint development project initially between second and fourth respondent – third respondent appointed first respondent as trustee of relevant trust – relevant injunction not explicitly continued – applicant seeks its dismissal – third respondent now deceased – third parties’ spouse has indicated intention to exercise power of appointment said to have been transferred to her – first and fourth respondents oppose its discharge 

INDUSTRIAL LAW – FAIR WORK – parties by consent seek declaration of contraventions of the Fair Work Act 2009 (Cth) – contraventions of civil remedy provisions in FW Act – underpayment of two employees – where underpayment has since been rectified – parties jointly seek imposition of penalties in an agreed range – exact penalty to be imposed determined by the court – guiding penalty principles agreed – penalties at lower end of agreed range appropriate – orders stayed for three months – declarations of contraventions and penalty orders made. 

MIGRATION – tribunal found no jurisdiction – no reasonable prospect of success – orders of Registrar affirmed – application for review dismissed  

MIGRATION – protection visa – application for review of decision of Immigration Assessment Authority to affirm refusal of visa – where applicants legal representative filed submissions on applicants behalf – where representative engaged in fraud – whether the Authority should have been aware of fraudulent conduct – whether Authority unreasonably failed to seek further information from applicant -  whether representative’s fraud vitiated the decision of the Authority – whether Authority constructively failed to exercise statutory duty because of fraud – no jurisdictional error found 

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

MIGRATION LAW – application for reinstatement – decision of the Administrative Appeals Tribunal – Employer Nomination (Class EN) (subclass 186) visa – finding that there was no reasonable explanation for failure to attend on previous occasion – where substantive application has no reasonable prospects of success and remittal to Tribunal would be futile – where the applicant was not subject to an approved nomination – where Tribunal made the only decision available in the circumstances – application dismissed. 

PRACTICE AND PROCEDURE – Application for discovery – Declaration that discovery of particular classes of documents is in the interests of the administration of justice 

MIGRATION -  protection visa – application for review of decision of the Administrative Appeals Tribunal – where applicant: sought to rely on new evidence and a new claim raised after the Tribunal hearing which was responsive to the Tribunal decision; made claims of inaccurate translation after the fact because the Tribunal had not referenced every piece of evidence in its decision; and otherwise asked the Court to engage in impermissible merits review – no error of jurisdiction articulated, established or identified – application dismissed with costs. 

MIGRATION – 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 gave evidence before Tribunal that someone else wrote the visa application and the claims for protection were false – whether the Tribunal failed to consider applicant’s potential economic circumstances in home country – found no jurisdictional error on behalf of the Tribunal.  

MIGRATION – application for judicial review – Protection (subclass 866) visa – where the applicant and her partner, ASR18, had their applications for review heard by the Tribunal at the same time – where Administrative Appeals Tribunal affirmed decision of 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 – whether Tribunal failed to consider relevant country information – found the country information was not relevant to the applicant and thus did not need to be considered by Tribunal – whether the Tribunal erred by making a finding that was illogical or irrational – found the Tribunal’s reasoning was clear and intelligible – found no jurisdictional error – application dismissed. 

MIGRATION – application for judicial review – where the applicant and her partner, ASQ18, had their applications for review heard by the Tribunal at the same time – where Administrative Appeals Tribunal affirmed decision of 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 – if jurisdictional error is found in relation to the Tribunal’s decision as to ASQ18, then such error would be transposed into the Tribunal’s decision as to the applicant – no jurisdictional error found in relation to ASQ18 – no jurisdictional error established in relation to applicant – application dismissed. 

MIGRATION – Student (Temporary) (Class TU) Subclass 500 visa where Administrative Appeals Tribunal affirmed decision of first respondent to refuse to grant applicant visa as applicant did not satisfy cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) – whether Tribunal failed to consider evidence regarding applicants’ home ties to country – where certain grounds raised by applicant entirely unparticularised – found Tribunal had regard to all relevant considerations and prescribed matters – found no jurisdictional error on behalf of the Administrative Appeals Tribunal  

MIGRATION – application for judicial review – where Administrative Appeals Tribunal affirmed decision of 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) whether Tribunal ailed to take into account evidence before it – whether interpreter failed to interpret at hearing before Tribunal – grounds unparticularised – found no jurisdictional error on Tribunal’s behalf. 

MIGRATION – application for judicial review – Protection (subclass 866) visa – where Administrative Appeals Tribunal affirmed decision of 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 – where grounds raised by applicant entirely unparticularised – where certain grounds raised by applicant seek impermissible merits review – whether Tribunal failed to consider evidence – found no jurisdictional error on behalf of the Tribunal – application dismissed. 

MIGRATION – application for judicial review - Protection (subclass 866) visa – where Administrative Appeals Tribunal affirmed decision of 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 – where grounds raised by applicant entirely unparticularised – where certain grounds raised by applicant seek impermissible merits review – whether Tribunal failed to consider evidence – whether the Tribunal’s decision was affected by apprehended bias – found no jurisdictional error on behalf of the Tribunal – application dismissed. 

MIGRATION – application for judicial review –where Administrative Appeals Tribunal affirmed decision of 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) – ground raised orally at hearing – whether Tribunal failed to consider an essential integer of the applicant’s claim – where further ground made post-hearing – conduct of solicitor – found no jurisdictional error on the Tribunal’s behalf. 

MIGRATION – Student visa – Whether the Tribunal’s failure to adjourn the hearing pending the Applicant’s enrolment in another course of study was unreasonable – Whether the Tribunal’s invitation to give evidence and present argument at the Tribunal was meaningful – Application dismissed 

MIGRATION – application for judicial review – application for judicial review – Student (Class TU) (Subclass 500) visa - where Administrative Appeals Tribunal affirmed decision not to grant applicant visa as applicant did not satisfy cl 500.212 of sch 2 of the Migration Regulations 1994 (Cth) – whether the Tribunal did not have regard to relevant circumstances – where oral submissions raised by applicant seek impermissible merits review - found Tribunal had regard to all relevant considerations and prescribed matters – found no jurisdictional error on behalf of Tribunal - application dismissed 

MIGRATION – Visa – Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa – where Administrative Appeals Tribunal affirmed decision of first respondent to cancel applicants’ visa – where first applicant failed to maintain enrolment in a course of study – where certain grounds raised by applicants entirely unparticularised – found no jurisdictional error on behalf of the Administrative Appeals Tribunal 

FAIR WORK – non-compliance with compliance notice – application for penalties and other relief – application for declaration that second respondent was involved in the contravention - consideration of factors relevant to assessment of penalty – whether employer acted deliberately or lacked good faith – realistic assessment of impact of penalty - consideration of accessorial liability - application for an order that respondent pay compensation to employee equal to alleged underpayment – consideration of factors relevant to exercise of discretion – penalty ordered – compensation order refused on discretionary grounds 

FAIR WORK – failure to comply with compliance notice - penalty proceedings – consideration of factors relevant to penalty – where parties have made statement of agreed facts – admissions made by respondents - whether two compliance notices should be grouped for purposes of penalty – whether there has been cooperation – penalties imposed 

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