Judgments

MIGRATION LAW – where the applicant made a second application for extension of time in respect of a visa refusal decision – where such application was an abuse of the process of the Court – where application was made some 2.75 years out of time – application dismissed.

MIGRATION – extension of time application – dismissal of interlocutory application where applicant in default – non-attendance at hearing of extension of time application.

MIGRATION – Administrative Appeals Tribunal – Protection visa (subclass 785) – where the grounds of judicial review are not supported by particulars – whether the Tribunal decision was unreasonable – no merit – application dismissed.

 MIGRATION – Administrative Appeals Tribunal - Safe Haven Enterprise Visa (class XE) (subclass 790) – whether the Authority was required to exercise the power in s 473DC -whether the Authority assessed the applicant’s risk of harm – whether the Authority’s finding was unreasonable – no merit – application dismissed.

MIGRATION – protection visa (subclass 866) – visa refused – where first notification of a decision of a delegate of the (then) Minister for Immigration and Border Protection was invalid – where application for review to the (then) Administrative Appeals Tribunal not made within 28 days of the date of notification of the delegate’s decision – where first Tribunal dismissed the matter for want of jurisdiction – where second notice of the delegate’s decision given following BMY18 v Minister for Home Affairs [2019] FCAFC 189 – where second notification sent to incorrect email address – where applicant made a second application for review by the Tribunal more than 28 days after second notification where Tribunal found it had no jurisdiction to review the matter – judicial review – extension of time – applications for judicial review must be made by applicant within 35 days of the date of the Tribunal’s decision – where applicant made application for judicial review almost 3 years and 3 months after time elapsed – applicant in immigration detention – applicant given notice of involuntary removal from Australia – application for urgent injunctive relief to restrain removal of applicant from Australia – whether there is a serious question to be tried –  whether balance of convenience favours the grant of relief – injunctive relief granted

MIGRATION – application for judicial review – student visa – failure to appear at scheduled hearing – whether refusal to grant adjournment was reasonable – whether medical evidence insufficient – whether Tribunal acted unreasonably in refusing to reinstate the applicant’s review application – whether failure to consider relevant matters – application dismissed.

MIGRATION LAW – Whether the Tribunal conducted a proper hearing – whether the Tribunal erred in its findings – no jurisdictional error established – application dismissed.

BANKRUPTCY – Review of Registrar decision dismissing application to set aside Bankruptcy Notice – where applicant alleges existence of counter-claim/set-off for purposes of s 40(1)(g) of Bankruptcy Act

MIGRATION – Protection (Class XA) (Subclass 866) visa application for review of Registrar’s decision – whether adequate explanation for delay - whether to exercise discretion to extend time – no reasonable prospects of successfully prosecuting application - application dismissed

MIGRATION – Protection visa – Where the Authority did not make an error as to its treatment of “new information” under ss. 473DC and 473DD of the Migration Act 1958 – Where the Authority did not misinterpret the terms “real chance” and “real risk” as provided under the Act – Application dismissed

MIGRATION – Protection visa application – application for an extension of time – whether leave should be granted to amend application for review – whether Tribunal’s reliance on inconsistencies in interpreted evidence across two days of hearing when making adverse credit findings amounted to jurisdictional error – failure to afford procedural fairness as required by s 425 Migration Act – jurisdictional error established – ground 1 of amended application for review upheld

MIGRATION – Whether factual error present in findings of Tribunal – if so whether error material – whether Tribunal failed to put dispositive issues to applicant

MIGRATION – Protection visa – application for judicial review of decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to properly consider corroborative evidence and therefore failed to complete its statutory task – jurisdictional error established – application allowed with costs.

MIGRATION – application for judicial review – student visa –whether self-represented applicant was denied procedural fairness – whether failure to warn of privilege against self-incrimination – whether questions asked by the Tribunal exposed applicant to self-incrimination – whether to extend privilege against self-incrimination to a civil and administrative review proceeding – erroneous interpretation of Regulations – application dismissed

MIGRATION – application for judicial review – protection visa – whether interpretation deficiencies constituted reviewable error – onus of proof – application dismissed

MIGRATION – Regional Employer nomination visa – decision of the Administrative Appeals Tribunal – where no approved nomination – whether the Tribunal failed to consider information – whether the applicant was given sufficient time to respond – no jurisdictional error established – application dismissed

MIGRATION – Judicial Review – Where Tribunal had before it information containing allegations against applicant – Where Tribunal failed to consider such information – Where Tribunal failed to put the allegations to the applicant – Whether such failure breaches statutory procedural fairness and natural justice requirements – Error established – Materiality – Where it is unknown what the applicant’s response to the allegations would be – Utility – not futile to grant relief

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – where applicant failed to provide evidence of genuine access to funds – no jurisdictional error established – application dismissed.

INDUSTRIAL LAW – Application for civil penalty –admitted contraventions –failure to cleave to compliance notice and provide pay slips under Fair Work Act 2009 (Cth) – penalty hearing  – appropriate penalty.

INTELLECTUAL PROPERTY - Costs – applications by applicants and by non-parties for costs in relation to applications the applicants made for freezing and ancillary disclosure orders.

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal (as it was) – whether the Tribunal failed to perform the statutory task required of it – whether the Tribunal failed to comply with s 360 of the Migration Act 1958 (Cth) – application dismissed

MIGRATION – Partner (Temporary) (Class UK) (Subclass 820) visa – review of a decision of the Administrative Appeals Tribunal – whether the Tribunal properly considered all of the circumstances of the parties’ relationship, including all the matters set out in r 1.15A(3) of the Migration Regulations 1994 (Cth) – no jurisdictional error established – application dismissed

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal failed to consider the situation into the reasonably foreseeable future – whether the Tribunal erred in failing to apply the “what if I’m wrong” test – whether the Tribunal erred in assessing complementary protection – whether the Tribunal failed to consider the applicant’s claims or evidence – allegation of bias – application dismissed

MIGRATION – Protection (Class XS) (Subclass 866) Visa – application for extension of time under s 477(2) of the Migration Act 1958 (Cth) - application for judicial review – application for interlocutory injunction prohibiting applicant’s removal from Australia – delay substantial – no serious question to be tried - application dismissed.

MIGRATION – judicial review – student visa – cancellation under s 116(1)(b) of the Act on the basis that the applicant had not complied with a condition of the visa in relation to enrolment in registered course – no jurisdictional error disclosed

INDUSTRIAL LAW – Fair Work – where the first respondent admitted contraventions of ss 716(5) and 712(3) of the Fair Work Act 2009 (Cth) – where the second respondent admitted he was involved, within the meaning of s 550 of the Fair Work Act, with those contraventions – determination of the appropriate penalty in respect of the contraventions.

MIGRATION – employer nomination visa – nomination refused – application dismissed for failure to appear-application for reinstatement – applicant not longer wishes to pursue reinstatement –reinstatement dismissed with further order as to fixed costs

MIGRATION – Employer Nomination Scheme (Subclass 186) visa – decision of Administrative Appeals Tribunal – where Tribunal dismissed application when applicants failed to attend a hearing – where primary applicant’s sponsor withdrew nomination – applicants’ judicial review application summarily dismissed by Registrar – application for review of Registrar’s decision filed out of time – application for extension of time to review Registrar’s decision – whether there is an adequate explanation for the delay – whether the application for judicial review has reasonable prospects of success – whether the application for judicial review is futile – extension of time application refused

MIGRATION – judicial review of Administrative Appeals Tribunal decision – dismissal for non-appearance – costs ordered

FAIR WORK - late receipt of evidence – adjournment granted - interests of the administration of justice – refixed for final hearing

BANKRUPTCY – Costs follow the event – Lump sum costs order – Costs on a standard basis – 25% discount to actual costs – Costs to be costs of the administration of the bankruptcy with the priority accorded by the Bankruptcy Act 1966 (Cth)

FAIR WORK – PENALTY – Contravention of minimum standards – Specific and general deterrence – Lack of corrective action – Small business – Ignorance not ameliorating factor – Penalty paid to applicant

MIGRATION – Administrative Appeals Tribunal – protection visa (class XA) (subclass 866) – whether the Tribunal misconstrued the risk and fear of significant harm – whether the Tribunal’s obligations under s 424A and s 424AA were enlivened – jurisdictional error not made out - application dismissed. 

MIGRATION – Administrative Appeals Tribunal – protection visa (class XA) (subclass 866) - whether the Tribunal misconstrued the risk and fear of significant harm in s 36(2A) – whether the Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant – whether the Tribunal acted outside jurisdiction – whether the Tribunal failed to comply with requirements under s 424A – no error jurisdictional error made out – application dismissed.

MIGRATION – Safe Haven Enterprise Visa – decision of the Immigration Assessment Authority – whether failure to consider claims – no jurisdictional error established – application dismissed

FAIR WORK - Whether employee or independent contractor – accessorial liability – unchallenged evidence of applicant –entitlements pursuant to modern award

INDUSTRIAL LAW – Termination of employment – whether applicant made complaint – whether applicant terminated because he was absent while ill  – where respondent discharged onus

MIGRATION – Application for review of a Registrar’s decision to summarily dismiss an Application and order that the Applicant pay the First Respondent’s costs – Substantive Application has no reasonable prospects of success – order for costs

INDUSTRIAL LAW – Practice and procedure – application for interim relief to restore applicant employee to roles from which she alleges she had been impermissibly removed and to permit the applicant to work from home – balance of convenience against granting interim relief – application for interim relief dismissed

CONSUMER LAW – where the applicant trustee sought delivery up to him of possession of a Range Rover motor vehicle – where injunctions ordered to maintain the status quo pending the hearing of competing claims – where orders made accordingly.

BANKRUPTCY – section 139ZQ notice -statutory requirements made out – charge registered-  sale of property - judgment in the sum of the debt under s139ZQ

MIGRATION – Application for review of a Registrar’s decision – review Application filed out of time – Registrar’s decision to summarily dismiss Application and the Applicant to pay the Minister’s costs – no reasons given for delay in applying for review or reasons why such a review is sought – whether an extension of time should be granted for review of the Registrar’s decision – extension of time denied – substantive Application has no reasonable prospects of success – order for costs

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal affirming delegate’s decision not to grant a visa – application for judicial review filed out of time – extension of time application – whether there was an adequate explanation for significant delay – whether there was an arguable case of jurisdictional error – extension of time application refused with costs

MIGRATION – Application for judicial review – matter listed for final hearing – applicant’s solicitor unable to locate the applicant to obtain instructions – whether the applicant has failed to prosecute the proceedings with due diligence – application dismissed pursuant to r 13.05(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

MIGRATION – Judicial review application – decision of Administrative Appeals Tribunal affirming decision to refuse subclass 457 (Temporary Work (Skilled)) visa – where sponsor’s visa nomination application refused – whether nominee had standing to challenge decision relating to nominator’s application for approval as a standard business sponsor – whether remittal futile – application dismissed – costs ordered

 MIGRATION – Administrative Appeals Tribunal – Student visa (class TU) (subclass 500) refusal – whether reasonable apprehension of bias exists – application upheld.

INDUSTRIAL LAW – Practice and procedure – application for default judgment on causes of action alleging contraventions of s 716(5) and s 536(1) of the Fair Work Act 2009 (Cth) (FW Act) – default judgment granted – orders made having the effect of requiring the respondent to comply with a compliance notice that had been issued pursuant to s 716(2) of the FW Act – assessment of pecuniary penalties for the respondent’s contraventions of s 716(5) and s 536(1) of the FW Act.

INDUSTRIAL LAW – Application in a proceeding for default judgment pursuant to r 13.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – failure to comply with Court orders – failure to file Notices of Address for Service – failure to file documents – cumulative failure to defend proceedings with due diligence

INDUSTRIAL LAW – Assessment of pecuniary penalties for contraventions of s 45 and s 44 of the Fair Work Act 2009 (Cth).

PRACTICE AND PROCEDURE – Application for leave to amend a statement of claim – application granted.