Judgments

MIGRATION - Partner (Temporary) (Class UK) (subclass 820) visa – Whether the applicant is taken to have received notification of the delegate’s decision through the authorised representative – Where the Tribunal had no jurisdiction to review the matter – application for an extension of time – proposed grounds of judicial review have no merit – application dismissed with costs

MIGRATION – application for student visa – requirement to show current enrolment in course of study – request for adjournment of Tribunal hearing to obtain Confirmation of Enrolment – application dismissed

INDUSTRIAL LAW – Adverse action – application to strike out statement of claim – where statement of claim clearly deficient – orders made to strike out statement of claim and permit the Applicant to replead, or set out her claims in an alternative form.

MIGRATION– application for review of registrar’s decision – extension of time of 17 days required – where Registrar dismissed the application for judicial review for nonappearance and then dismissed an application for reinstatement – Tribunal found no jurisdiction to review refusal of Business Innovation And Investment (Provisional) (Extension) (Subclass 188) visa – delay and lack of prospects of success of reinstatement application do not warrant an extension of time

FAIR WORK – Compliance Notice

FAIR WORK – Reasonable belief – Section 716(1)(a) – Whether the Inspector reasonably believed that the employer had contravened terms of a modern award – Where the Compliance Notice did not specify each and every contravention but “roved” across a date range throughout a relevant period – Where the court held that employer’s system of conduct in paying a flat rate less than prescribed Award minimums was sufficient grounds for the Inspector’s reasonable belief that the contraventions occurred throughout the relevant period

FAIR WORK – Review of the Compliance Notice –Section 717(1)(a) – Whether the employer had not committed a contravention set out in the Notice because the modern award, the Social, Community, Home Care And Disability Services Industry Award 2010 did not apply to it – Where held that a community language school was an employer in the social and community services sector and the Award applied to it

FAIR WORK – Section 717(1)(b) – Whether the Notice set out “specified action to remedy the direct effects of the contravention” under s. 716(2)(a) – Whether the Notice set out “brief details” of the contravention under s. 716(3)(c) –Held Notice complied with ss. 716(2)(a) and 716(3)(c) –Where the court found that the First Respondent failed to comply with the notice under s. 716(5)

FAIR WORK – Accessorial liability – Where under s. 716(2)(a) the Inspector may require a person to take specified action “within such reasonable time as is specified in the notice” –  Where an officer of the FWO made an express representation that the First Respondent should not make payments at the time specified in the notice – Where the failure to comply with the Contravention Notice was a continuing contravention – Where the Second Respondent was an intentional participant in the contravention

FAIR WORK – Reasonable belief – Section 716(1)(a) – Whether the Inspector reasonably believed that the employer had contravened terms of a modern award – Where the Compliance Notice did not specify each and every contravention but “roved” across a date range throughout a relevant period – Where the court held that employer’s system of conduct in paying a flat rate less than prescribed Award minimums was sufficient grounds for the Inspector’s reasonable belief that the contraventions occurred throughout the relevant period

FAIR WORK – Review of the Compliance Notice –Section 717(1)(a) – Whether the employer had not committed a contravention set out in the Notice because the modern award, the Social, Community, Home Care And Disability Services Industry Award 2010 did not apply to it – Where held that a community language school was an employer in the social and community services sector and the Award applied to it

FAIR WORK – Section 717(1)(b) – Whether the Notice set out “specified action to remedy the direct effects of the contravention” under s. 716(2)(a) – Whether the Notice set out “brief details” of the contravention under s. 716(3)(c) –Held Notice complied with ss. 716(2)(a) and 716(3)(c) –Where the court found that the First Respondent failed to comply with the notice under s. 716(5)

FAIR WORK – Accessorial liability – Where under s. 716(2)(a) the Inspector may require a person to take specified action “within such reasonable time as is specified in the notice” –  Where an officer of the FWO made an express representation that the First Respondent should not make payments at the time specified in the notice – Where the failure to comply with the Contravention Notice was a continuing contravention – Where the Second Respondent was an intentional participant in the contravention

MIGRATION – Protection visa – Application for judicial review – Whether Tribunal failed to consider relevant country information assessment – Identified error - Whether a material jurisdictional error – Review allowed – Writs issued.

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal to not grant a protection visa – fear of harm as Berish member and from Malaysian authorities – lack of particulars – grounds of review not made out – application dismissed with costs

MIGRATION– extension of time application – applicant filed 371 days out of time – insufficient explanation as to delay – unparticularised grounds – lack of merit in substantive application – extension of time not granted – costs ordered

MIGRATION – Protection visa – Application for judicial review – Whether Tribunal failed to identify country information – Whether findings supported by evidence – Outcome consistent with evidence – Application dismissed.

MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL – application to extend time to file the application – delay of 4 days – where the applicant’s oral application to adjourn the hearing due to unwellness not allowed – where the applicant failed to comply with orders to give further evidence and submissions after the hearing – where there is an insufficient explanation for the delay – where the proposed grounds of review lack merit – application for extension of time refused – application dismissed

MIGRATION – judicial review of Administrative Appeals Tribunal decision – student visa – no jurisdictional error established – application dismissed.

MIGRATION – Whether Tribunal erred by misconstruing the term ‘exceptional reasons’ – where applicant twice foreshadowed discontinuance of proceedings and sought multiple adjournments

MIGRATION – jurisdiction of the court to deal with a claim for damages for false imprisonment – original proceeding being an application for habeas corpus.

MIGRATION – student (subclass 500) visa – decision of the (then) Administrative Appeals Tribunal – no appearance by or on behalf of the applicant – oral application to dismiss 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 with costs

MIGRATION– application for judicial review of a decision of the Administrative Appeals Tribunal to cancel a Student (Temporary) (Class TU) Higher Education Sector subclass 573 visa – whether the Tribunal considered the applicant’s circumstances and gave weight in accordance with law – application dismissed with costs

MIGRATION – judicial review – cancellation of Subclass (Student) visa under s 116 of the Migration Act 1958 (Cth) for breach of a visa condition – whether the Tribunal in exercising its discretion whether to cancel the visa failed to consider relevant matters and took into account irrelevant matters – no jurisdictional error disclosed – application dismissed

INDUSTRIAL LAW – ADVERSE ACTION – where the applicant claims that the respondent breached sections 340 and 351 of the Fair Work Act 2009 (Cth) in terminating his employment – consideration of whether the respondent terminated the applicant’s employment for, or for reasons which included him exercising a workplace right – consideration of whether the respondent terminated the applicant’s employment for reason of any disability of applicant’s, actual or imputed – finding that there was no breach of sections 340 or 351 in the circumstances – application dismissed.

MIGRATION - judicial review – extension of time application – merits of underlying application - extension of time refused – costs ordered.

MIGRATION – Temporary Business Entry (Skilled) (subclass 457) visa – Where the primary applicant’s application was tied to the approval of her sponsor’s nomination of an occupation in relation to her – Where another Tribunal had refused to approve her sponsor’s nomination – Where because her sponsor’s nomination was not approved the primary applicant could not meet the mandatory criteria for the grant of the visa and the only available decision for the Tribunal was to refuse to grant the visa – Where because the primary applicant was refused the visa as a necessary consequence her family unit was not granted visas – Application dismissed

MIGRATION – Cancellation of a Temporary Work (Skilled) (Class UC) (Subclass 457) visa – decision of the then Administrative Appeals Tribunal – matter listed for a final hearing by video link – 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 – Student visa – Where application listed both for an extension of time hearing and if the time was extended a final hearing – Where the First Respondent consented to an extension of time – Whether the notification of the decision of a delegate to the Applicant stated the time in which the application for review to the Tribunal may be made in accordance with s. 66(2)(d)(ii) of the Migration Act 1958 (Cth) – Held the notification to the Applicant was complete and clear in compliance with the statute – No jurisdictional error – Application dismissed

MIGRATION – judicial review – Protection visa refusal – credibility – whether Tribunal biased in the making of its decision – whether Tribunal failed to make an inquiry to verify a claim – no jurisdictional error established – application dismissed.

MIGRATION – judicial review – protection visa –whether Tribunal failed to inquire – whether inquiry obvious – whether inquiry would have gleaned information that could have led to a different outcome –  no jurisdictional error established – application dismissed.

MIGRATION – Student visa – Impermissible merits review – Unparticularised grounds – Application dismissed

MIGRATION - judicial review – decision of Administrative Appeals Tribunal – Partner (Temporary) (Class UK) subclass 820 visa – meaning of phrase “has developed close business, cultural or personal ties in Australia” – Tribunal found that applicant’s ties with sponsor’s family did not constitute development of close personal ties – whether finding legally unreasonable – no jurisdictional error established – application dismissed

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing temporary graduate visa – whether Trades Recognition Australia validly appointed as relevant assessing authority – meaning of ‘body’ - no jurisdictional error established – application dismissed.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether error in Tribunal’s finding that applicant not credible – whether open to Tribunal to rely on omission in answer given by applicant at hearing as a reason in support of adverse credibility finding – no jurisdictional error established – application dismissed

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether applicant was included as member of family unit of partner’s student visa application - no jurisdictional error established – application dismissed.

MIGRATION – Judicial review – applicant alleges failure by the Immigration Assessment Authority to consider relevant considerations – applicant alleges reasoning of the Authority is unreasonable – no error identified – Application dismissed.

MIGRATION – Judicial review – whether Administrative Appeals Tribunal (‘Tribunal’) misconstrued section 36(2)(aa) and section 36(2B)(b) of the Migration Act 1958 (Cth) – whether Tribunal wrongly treated section 36(2B)(b) as a ‘carve out’ from section 36(2)(aa), contrary to the principles in Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 – whether Tribunal erred by focusing on a system of protection rather than the ability of the individual to avail himself of protection – no error established – application dismissed.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal’s assessment of applicant’s credibility was legally unreasonable or overlooked effect of lapse of time on memory and recollection and applicant’s psychological and mental health conditions – whether Tribunal’s refusal to call witness was unreasonable – no jurisdictional error established – application dismissed.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal – student (class TU) (subclass 500) visa – Tribunal found applicant did not give evidence of financial capacity that satisfied requirements of legislative instrument – whether Tribunal erred in finding applicant did not provide satisfactory evidence of financial capacity or genuine access to funds – no jurisdictional error established – application dismissed

MIGRATION – judicial review – whether Tribunal erred in finding it had no jurisdiction – no jurisdictional error established – application dismissed.

MIGRATION – Judicial review – Student visa refusal – whether Tribunal failed to consider information and claims – whether Tribunal denied the applicant an opportunity to give information – whether Tribunal’s decision not to adjourn the review was legally unreasonable – no jurisdictional error established – application dismissed.

MIGRATION – Application for judicial review – decision of the Administrative Appeals Tribunal as it was - subclass 189 skilled independent visa – where the applicant claimed that the Tribunal failed to consider the best interests of the applicant’s child in cancelling the applicant’s visa under PAM3 and in accordance with the Convention on the Rights of the Child – finding that the Tribunal failed to give consideration to the best interests of the child – finding that the failure to consider the child’s best interests is material in the circumstances – jurisdictional error established – writ of certiorari issued – order for costs.

HUMAN RIGHTS – Application for declarations and compensation for alleged sexual harassment – where the court was unable to make findings one way or the other that any pleaded conduct was unwelcome – where onus of proof not discharged by applicant – where application dismissed accordingly.

INDUSTRIAL LAW – determination of orders that should be made to give effect to reasons for judgment – whether good cause has been shown for not awarding pre-judgment interest – final order made.

ADMINISTRATIVE LAW – whether a ground in s 5 of the Administrative Decisions (Judicial Review) Act 1975 (Cth) is established – whether the Australian Information Commissioner denied the applicant natural justice – whether the Commissioner’s decision involved an improper exercise of power because the Commissioner relied on irrelevant considerations or failed to take into account relevant considerations – whether the Commissioner applied a rule or policy without considering the merit of the case – whether the Commissioner’s decision was induced or affected by fraud

PRIVACY LAW – decision of the Australian Information Commissioner not to investigate a privacy complaint made by the applicant on the basis that the privacy complaint was lacking in substance

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal considered irrelevant information – whether the Tribunal’s decision is illogical, irrational or unreasonable – whether the applicant was denied procedural fairness – no jurisdictional error – application dismissed.

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to assess the applicant’s claimed fear of harm – whether the Tribunal’s use of country information was illogical, irrational or unreasonable – no jurisdictional error – application dismissed.

MIGRATION – protection visa – costs – where applicant sought mandamus for alleged breach by respondents of s 198(1) of the Migration Act 1958 (Cth) – where on day of final hearing applicant conceded that respondents no longer in breach of duty – where applicant sought costs of proceeding – whether Court should make determination of merits when original application and relief no longer pursued – where none of the parties was unreasonable in its commencement, maintenance or defence of the proceeding – where despite some evidence before the Court not possible to reach concluded view on merits of the case – principle identified in Ex parte Lai Qin applied – no order for costs – application for mandamus dismissed.

MIGRATION – Student visa cancellation – decision of the then Administrative Appeals Tribunal – matter listed for a final hearing by video link– 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).

FAIR WORK – compliance notice issued under s 716 of the Fair Work Act 2009 (Cth) (the Act) – whether contravention of s 716(5) of the Act – default judgment – whether orders for payment of compensation should be made – whether declaration of contravention should be made

MIGRATION – Student visa – Application for review of Registrar’s decision – Summary dismissal- Arguable claim of jurisdictional error- Application for an extension of time - Rule 21.02(2) – Extension granted - Review allowed – Application for judicial review reinstated.

FAIR WORK – leave to amend – application to vacate trial dates

MIGRATION– application for review of registrar’s decision – extension of time of 17 days required – where Registrar dismissed the application for judicial review for nonappearance and then dismissed an application for reinstatement – Tribunal found no jurisdiction to review refusal of Business Innovation And Investment (Provisional) (Extension) (Subclass 188) visa – delay and lack of prospects of success of reinstatement application do not warrant an extension of time

FAIR WORK – Compliance Notice

FAIR WORK – Reasonable belief – Section 716(1)(a) – Whether the Inspector reasonably believed that the employer had contravened terms of a modern award – Where the Compliance Notice did not specify each and every contravention but “roved” across a date range throughout a relevant period – Where the court held that employer’s system of conduct in paying a flat rate less than prescribed Award minimums was sufficient grounds for the Inspector’s reasonable belief that the contraventions occurred throughout the relevant period

FAIR WORK – Review of the Compliance Notice –Section 717(1)(a) – Whether the employer had not committed a contravention set out in the Notice because the modern award, the Social, Community, Home Care And Disability Services Industry Award 2010 did not apply to it – Where held that a community language school was an employer in the social and community services sector and the Award applied to it

FAIR WORK – Section 717(1)(b) – Whether the Notice set out “specified action to remedy the direct effects of the contravention” under s. 716(2)(a) – Whether the Notice set out “brief details” of the contravention under s. 716(3)(c) –Held Notice complied with ss. 716(2)(a) and 716(3)(c) –Where the court found that the First Respondent failed to comply with the notice under s. 716(5)

FAIR WORK – Accessorial liability – Where under s. 716(2)(a) the Inspector may require a person to take specified action “within such reasonable time as is specified in the notice” –  Where an officer of the FWO made an express representation that the First Respondent should not make payments at the time specified in the notice – Where the failure to comply with the Contravention Notice was a continuing contravention – Where the Second Respondent was an intentional participant in the contravention

FAIR WORK – Reasonable belief – Section 716(1)(a) – Whether the Inspector reasonably believed that the employer had contravened terms of a modern award – Where the Compliance Notice did not specify each and every contravention but “roved” across a date range throughout a relevant period – Where the court held that employer’s system of conduct in paying a flat rate less than prescribed Award minimums was sufficient grounds for the Inspector’s reasonable belief that the contraventions occurred throughout the relevant period

FAIR WORK – Review of the Compliance Notice –Section 717(1)(a) – Whether the employer had not committed a contravention set out in the Notice because the modern award, the Social, Community, Home Care And Disability Services Industry Award 2010 did not apply to it – Where held that a community language school was an employer in the social and community services sector and the Award applied to it

FAIR WORK – Section 717(1)(b) – Whether the Notice set out “specified action to remedy the direct effects of the contravention” under s. 716(2)(a) – Whether the Notice set out “brief details” of the contravention under s. 716(3)(c) –Held Notice complied with ss. 716(2)(a) and 716(3)(c) –Where the court found that the First Respondent failed to comply with the notice under s. 716(5)

FAIR WORK – Accessorial liability – Where under s. 716(2)(a) the Inspector may require a person to take specified action “within such reasonable time as is specified in the notice” –  Where an officer of the FWO made an express representation that the First Respondent should not make payments at the time specified in the notice – Where the failure to comply with the Contravention Notice was a continuing contravention – Where the Second Respondent was an intentional participant in the contravention 

MIGRATION – application for an extension of time – relevant considerations – extension of time refused.

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – judicial review of a decision of the Administrative Appeals Tribunal – procedural fairness – error of law – failure to consider – futility – no jurisdictional error established – application dismissed

MIGRATION – non-appearance at hearing – request for an adjournment or leave to appear remotely made on the morning of the hearing – subsequent sending of medical documents without further explanation – application dismissed for non-appearance