Judgments

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – where applicant asserts that the Authority failed to afford proper weight to his claims – no jurisdictional error – application dismissed.    

MIGRATION – Application for review of refusal to waive condition 8503 – whether delegate failed to consider claims as raised – whether decision legally unreasonable 

MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) (Subclass 500) visa – whether the Tribunal fell into jurisdictional error – whether jurisdictional error is made out – no jurisdictional error made out – legal unreasonableness – the application is dismissed.   

PRACTICE AND PROCEDURE – applications after substantive judgment and relief ordered – where no appeal against final orders – application for costs - applications by respondent for judgment to be set aside, judgment orders to be stayed and for recusal–where respondent directed to file materials in support of applications – where respondent in default of court order – discretion enlivened to dismiss applications – applications dismissed

FAIR WORK – no proper basis to justify the joinder of the second and third respondents – part of statement of claim struck out – leave to file amended statement of claim 

INDUSTRIAL LAW – costs – whether rejection of series of offers constitutes an unreasonable act or omission for the purposes of s 570(2)(b) of the Fair Work Act 2009 (Cth) – rejection of offers not unreasonable having regard to stage of offer, extent of compromise and strength of case at relevant times – s 570(2)(b) not engaged – application for costs dismissed 

MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed

MIGRATION – where delegate found the Applicant’s claims plausible after seeing his injuries – where Authority heard only audio of the interview with the Applicant and did not interview him – where Authority found the Applicant’s evidence not credible - Held that it was unreasonable of the Authority to fail to exercise its powers under s 473DC of the Migration Act 1958 (‘Act’) to get and consider new information – error material and ground upheld.

MIGRATION – where Authority in considering the criteria in s 473DD(b)(ii) of the Act stated no reasons had been given as to why the information was not given earlier or was credible personal information and did not otherwise elaborate – Held that Authority failed to discharge its duty under s 473DD if the Act – held error not material in the circumstances. 

MIGRATION - cancellation of visa – whether Tribunal properly considered the Applicant would be subject to indefinite detention when it cancelled visa – whether ‘prolonged’ is the same as ‘indefinite’ – held Tribunal considered whether Applicant was to be indefinitely detained – application dismissed. 

MIGRATION – Application to review decision of the Immigration Assessment Authority (‘Authority’) – whether decision of the Authority not to admit new information was unreasonable or illogical – HELD that Authority did not act unreasonably or illogically.   

MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicants student visas – where matters raised by applicants primarily seek merits review of Tribunal decision – whether Tribunal’s failure to disclose a non disclosure certificate issued under s 375A of Migration Act 1958 (Cth) amounts to jurisdictional error – no jurisdictional error – application dismissed.   

MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – protection class XD (subclass 785) visa – where applicant made two requests for an adjournment of the Tribunal hearing to obtain legal representation and obtain copy of entry interview – consideration of whether Tribunal’s refusal of adjournment requests was legally unreasonable or resulted in the applicant not being afforded a meaningful opportunity to present his case – consideration of whether Tribunal failed to consider various claims made by applicant – where claims were expressly dealt with in Tribunal reasons – no jurisdictional error established – application dismissed with costs. 

MIGRATION – Application for review of decision of Administrative Appeals Tribunal – merits review – whether Tribunal failed to consider applicant’s claims 

INDUSTRIAL LAW – Fair Work – application for an extension of time in which to file a general protections claim – application for other relief – applicant failing to appear at a directions hearing. 

PRACTICE & PROCEDURE – application for dismissal – non-appearance of the applicant.   

CHILD SUPPORT – application for judicial review of a child support decision of Administrative Appeals Tribunal – adjusted taxable income – where the applicant objected to the first respondent’s decision about the value of adjusted taxable income used for the payer in the administrative assessment of child support – whether applicant can establish an error of law – where constructive failure to discharge its function on the review amounted to an error of law – jurisdictional error established – appeal allowed – Tribunal decision set aside and remitted to be heard according to law  

BANKRUPTCY – application for review of sequestration order made by Registrar – whether creditor has established right to a sequestration order – whether debtor has shown he is able to pay his debts – whether debtor has shown there is some other sufficient cause for dismissing petition – application for review dismissed.   

CONSUMER LAW – Default by borrower under facility agreement – where a further adjournment of the hearing was requested – where no reasonable prospect of arrears being paid in the near future – judgment entered accordingly.  

INDUSTRIAL LAW – interpretation of an enterprise agreement – whether an employee was incorrectly paid by reference to the incorrect level under the agreement – whether a relevant trade qualification was required to access higher levels of pay – application dismissed 

FAIR WORK – application for default judgment against respondents – where applicant unlawfully stood down from full-time employment – where applicant filed application in Fair Work Commission – where FWC ordered reinstatement – where respondents did not comply with FWC order – where respondents altered applicant’s employment to casual – repudiation – claims for unpaid wages, payment in lieu of notice and accrued annual and long service leave – alleged contravention of general protections provisions of Fair Work Act – respondents failed to engage in proceedings – default judgment ordered 

FAIR WORK – application for default judgment against respondents – where applicant unlawfully stood down from full-time employment – where applicant filed application in Fair Work Commission – where FWC ordered reinstatement – where respondents did not comply with FWC order –claims for unpaid payment of accrued annual leave– respondents failed to engage in proceedings – default judgment ordered 

MIGRATION – application for judicial review of Administrative Appeals Tribunal decision affirming decision not to grant applicants protection visas – whether Tribunal failed to consider material evidence provided by applicants – whether conduct at Tribunal hearing gives rise to actual or apprehended bias – no jurisdictional error – application dismissed. 

MIGRATION – Public Interest Immunity – Resident Return (Subclass 155) visas – leave to amend Grounds of Judicial review 

MIGRATION – application for extension of time to bring proceeding – refusal – relevant considerations  MIGRATION – tourist visa – “no further stay” condition – application for waiver of condition - refusal 

MIGRATION– application for judicial review – decision of the Administrative Appeals Tribunal – Protection (subclass 866) visa – where applicant claims to fear farm due to religion, ethnicity and political involvement in Malaysia – consideration of whether Tribunal failed to consider applicant’s claims – further consideration of whether Tribunal failed to apply forward-looking test when assessing risk of harm – no jurisdictional error established – application dismissed with costs.

FAMILY LAW – PARENTING – two children aged eight and ten – parties agree to equal shared parental responsibility – father seeks orders for children’s time spent with him to progress to equal time – mother seeks a reduction in the time the children spent with the father, from five to four nights per fortnight – mother contends father’s mental health and alcohol consumption poses a risk of harm to the children and affects his parenting capacity – where father minimises prior alcohol consumption and demonstrates a lack of insight into the impact of his conduct on the mother and children – injunction restraining father’s consumption of alcohol – orders made for the children to continue to spend time with the father for five nights each fortnight. 

INDUSTRIAL LAW – FAIR WORK – penalty hearing - failure to comply with compliance notice – respondent has failed to defend proceedings with due diligence –liability determined – underpayment of one employee – vulnerable employee – first time offender – lack of corporation by the respondent – calculation of penalty – matters to be considered. 

INDUSTRIAL LAW – Fair Work – claim alleging dismissal in contravention of general protection – claim alleging non-payment of entitlements – where respondents have not participated in the proceedings – application for default judgment and for the payment of compensation and pecuniary penalties against the respondents – whether on the face of statement of claim applicant has established an entitlement for declaratory relief – whether relief sought is reasonably supported by the materials before the Court – default judgment ordered - declarations and orders for payment of compensation and pecuniary penalties made 

MIGRATION – Application for writ of habeas corpus – where applicant has spent 2.5 years in immigration detention and not yet been removed to his country of origin, Iran –  whether the constitutional limit on the power of executive detention under ss. 189 and 196 of the Migration Act 1958 (Cth) has been transgressed – where evidentiary burden rests with the respondents to justify a real prospect of applicant’s removal from Australia becoming practicable in the reasonably foreseeable future –application granted. 

MIGRATION – Application for writ of habeas corpus – where applicant has spent 5 years in immigration detention and not yet been removed to his country of origin, Iran –  whether the constitutional limit on the power of executive detention under ss. 189 and 196 of the Migration Act 1958 (Cth) has been transgressed – where evidentiary burden rests with the respondents to justify a real prospect of applicant’s removal from Australia becoming practicable in the reasonably foreseeable future – application granted. 

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – whether Authority made a finding that was illogical or irrational – whether Authority asked itself the wrong question – no jurisdictional error – application dismissed 

MIGRATION – Protection visa – Administrative Appeals Tribunal – whether the Tribunal failed to provide the applicant objectively meaningful invitation to attend – unreasonable refusal of adjournment request – writ of certiorari issued – writ of mandamus issued  

MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority misapplied or unreasonably failed to exercise the power in s 473DD of the Migration Act 1958 (Cth) to consider new information – whether Authority confined itself to an assessment of credibility of new information as required by s 473DD(b)(ii) – whether Authority acted unreasonably in failing to get country information that was not before the delegate through the exercise of s 473DC(1) of the Act – whether Authority failed to consider all relevant country information concerning conditions for returnees in Sri Lanka – whether Authority failed to consider claim of future political activity – no jurisdictional error – application dismissed 

NDUSTRIAL LAW – contraventions established – limited utility in evidence on behalf of Respondents at penalty hearing except for the history of contravening conduct by the First Respondent Company – Other Respondents employees of Company but who had little idea or appreciation of the Court’s adverse findings against them in relation to their conduct that gave rise to the contraventions – the evidence at trial was strongly adverse to the Respondents but they still ran the trial – in the Court’s view the matter should have resolved including in relation to penalties – Applicant made clear and beneficial offer to settle the matter which was rejected – penalties fixed generally at lower range – award of costs against the Respondents consequent upon and from the date of the settlement offer. 

CONSUMER PROTECTION – claim of lack of merchantable quality in vehicle – Applicant refused to make vehicle available for inspection and preparation of independent expert report – Respondent’s mechanics unable to replicate faults claimed by the Applicant – auto electrician relied upon by Applicant as “expert” but failure to comply with Practice Note and multiple authorities regarding “expert evidence and witness” – oral evidence permitted of this “expert in a voir dire – this expert did not assist Applicant’s case and in a number of respects undercut it – Applicant bore onus of establishing lack of merchantable quality under s.54 Australian Consumer Law (ACL) – onus not discharged – Application dismissed with costs.

MIGRATION – Persecution – Review of Administrative Appeals Tribunal (“Tribunal”) decision – Visa – Protection Visa – Refusal. 

MIGRATION – Protection Visa – Refusal – Review of Administrative Appeals Tribunal (“Tribunal”). 

MIGRATION LAW – whether a further TPV interview raised new facts which adversely impacted upon the credibility of the applicant – whether new facts were merely an amplification upon earlier claims made by the applicant – whether the Authority erred in the way in which it categorised the new facts – jurisdictional error established – Application granted. 

PRACTICE AND PROCEDURE – application to restrain legal practitioners from acting for the respondents – the legal practitioners having never acted for the applicant – whether there is any other proper basis to restrain the legal practitioners from acting for the respondents. 

FAIR WORK – failure to comply with compliance notice – application for civil penalties – where admissions made by way of statement of agreed facts – where filed statement of agreed facts incomprehensible – where steps taken by Ombudsman to correct errors – whether the respondents cooperated or frustrated proceedings – significance of statement of agreed facts under Evidence Act - where proceedings stayed against employer after it entered administration – accessorial liability of director admitted  – penalty imposed 

FAIR WORK –failure to comply with compliance notice – where default judgment had been entered -  civil penalties – relevance of similar prior conduct – relevance of employer’s conduct after contravention – whether cooperation real - serious contravention warrants penalties 

MIGRATION – Judicial review – Protection visas – Whether the Tribunal failed to consider claims which squarely arose on the material – Where Second Applicant diagnosed with post-traumatic stress disorder (PTSD) – Where there was Country Information as to the scarcity of mental health services in Sri Lanka – Where the link between the PTSD and risk of serious harm because of scarcity of mental health services did not squarely arise on the material in absence of evidence as to the nature of the PTSD and the Second Applicant’s treatment needs  –Where First Applicant’s claim as to domestic violence considered and not accepted – Application dismissed  

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – whether Authority misapplied s 473DD of the Migration Act 1958 (Cth) – whether Authority applied the wrong test for ‘well-founded fear of persecution’ – no jurisdictional error – application dismissed. 

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).   

INDUSTRIAL LAW – assessment of pecuniary penalty for admitted contravention of s 716(5) of the Fair Work Act 2009 (Cth). 

INTELLECTUAL PROPERTY – form of declaration to make to give effect to a finding of trade mark infringement – costs – whether indemnity costs should be ordered against the successful applicant after the dates by which offers to settle the proceeding were available to be accepted had passed – indemnity costs not ordered because the relief the applicant obtained was not less favourable than the terms of the offers and it was otherwise not unreasonable for the applicant to refuse to accept the offers – whether the respondents should be ordered to pay the applicant’s costs on an indemnity basis – respondents not to pay costs on an indemnity basis – whether lump sum costs order should be made – lump sum costs order made.

INTELLECTUAL PROPERTY – application for discovery of documents described in categories of documents formulated by applicant – whether categories describe documents relevant to issues arising on the pleadings – categories described in terms that call for documents not relevant to the issues arising on the pleadings – application dismissed with liberty to apply for discovery in relation to issues arising from matters affirmatively pleaded by respondent in its defence. 

PRACTICE AND PROCEDURE – COSTS – costs sought against solicitor – relevant considerations. 

PRACTICE AND PROCEDURE – review of Registrar’s decision – Registrar’s decision not to list adjournment request prior to the date of final hearing – application and adjournment of final hearing granted  

INDUSTRIAL LAW – Application for contravention under Fair Work Act 2009 (Cth) and under the Work Health and Safety Act 2011 (ACT) - Union officials inspecting suspected breaches of WHS standards return to the Site the following day to follow-up and review remaining matters of safety which were not finalised on the first day of inspection - whether Union officials formed reasonable suspicion of remaining breaches of WHS standards and whether they could enter the site under the same Right of Entry Notice without providing further ‘particulars’ - the Court determines that Union officials were hindered and obstructed in the performance of their authorised duties by being required to provide further ‘particulars’ despite clear Right of Entry Notices - facts strongly support breaches -  contraventions established -  declarations to be made and matter fixed for penalty hearing