Judgments

INDUSTRIAL LAW – application for an extension of time to file a general protections court application under the Fair Work Act 2009 (Cth) – extension of time granted. 

INDUSTRIAL LAW – fair work breach of general protections claim – application for reinstatement of proceedings – notice of discontinuance knowingly and voluntarily filed by applicant’s solicitors – discontinued for mental health reasons – consideration of inherent power to exercise discretionary power in the interests of justice – application dismissed 

MIGRATION – reinstatement application – application for judicial review of a decision by the Administrative Appeals Tribunal – allegations against solicitor – proposed substantive grounds of review found to be insufficiently meritorious to warrant reinstatement – application dismissed – costs ordered against solicitor 

MIGRATION – application for judicial review of decision of Immigration Assessment Authority affirming decision not to grant applicant protection visa – whether Authority failed to consider all relevant evidence – whether Authority applied wrong legal test – whether Authority denied applicant procedural fairness – whether Authority failed to inform applicant of issues arising on review – whether Authority failed to consider exercising its discretion in s 473DC to get new information from applicant – no jurisdictional error – application dismissed 

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to give sufficient weight to evidence or information before it – whether the Tribunal failed to consider the applicant’s circumstances – whether the Tribunal’s decision was illogical, irrational or unreasonable – no jurisdictional error – application dismissed.

MIGRATION – Protection 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 – 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 – surplus funds – dividend distribution

BANKRUPTCY – requirements satisfied - sequestration order made 

INDUSTRIAL LAW – enforcement – charging order – state legislation – picked up by s 79 of the Judiciary Act 1903 (Cth) 

INDUSTRIAL LAW – subpoena – application to set aside – documents relevant – application dismissed 

MIGRATION LAW – Protection (Subclass 886) Visa – Whether there was error because of a failure to provide an interpreter – Whether the Tribunal’s adverse credibility findings were made without a logical and probative basis – Whether the Tribunal misapplied the law – No error found – Application dismissed  

PRACTICE AND PROCEDURE – Application for leave to file a Further Amended Statement of Claim following partially successful no case to answer application – new claim for mental and emotional harm where no case to answer on previous claim for psychiatric injury – revised claims for quantum of money for overtime and allowances based on revised claim for classification of employee at a particular wage level – whether employee meets criteria for classification at particular wage level – consideration of overarching civil practice and procedure provisions – case management considerations – whether proposed amendments will cause delay and additional expense – effect of proposed amendments on efficient disposal of Court’s caseload and resolution of disputes and disposal of proceedings in a timely manner.  
INDUSTRIAL LAW – Whether contravention of general protections – whether workplace rights in relation to alleged discrimination, bullying and harassment – whether mental and emotional harm – whether duties at classification level claimed – whether underpayment of overtime, on call and travel allowances. 

INDUSTRIAL LAW – Whether presumption that adverse action was taken for a prohibited reason was rebutted – where the Court accepted the evidence of the witnesses for the respondent – where termination of employment was because of longstanding and ongoing poor work performance - application dismissed. 

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – whether the Authority misconstrued or misapplied s 473DD(b)(ii) of the Migration Act – whether the Authority made a decision in relation to s 473DD that was illogical or irrational – no jurisdictional error – application dismissed.

PRACTICE AND PROCEDURE – application in a proceeding seeking adjournment of final hearing – where adjournment sought on medical bases – where evidence does not establish that the applicants are unable to participate in the hearing – application for adjournment refused. MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicants Business Skills (Residence) (Class DF) visas – whether Tribunal provided insufficient reasons or failed to comply with its procedural fairness obligations – whether Tribunal failed to consider applicants’ evidence – where Tribunal had no discretion to grant visas to the applicants in circumstances where it was not satisfied that the prescribed criteria for the visas were met – no jurisdictional error – application dismissed. 

MIGRATION LAW - application for partner visa – whether Tribunal erred in the way in which it considered the applicant’s documentation – whether the Tribunal failed to intellectually engage with the arguments put before it – no jurisdictional error established – application dismissed. 

MIGRATION LAW –whether the Tribunal properly conducted a hearing – absence of particulars in grounds of review – no jurisdictional error established – application dismissed.  

MIGRATION – protection visa – judicial review of a decision of the Administrative Appeals Tribunal – where applicant claims to fear tribal revenge killing – whether Tribunal had a duty to make inquiries – whether information about deaths of family members would have been probative of applicant’s claims – whether tribunal failed to make an inquiry into a critical fact – whether inquiry was an obvious one to make – where applicant and representative had not made inquiries – where applicant had not requested delegate or Tribunal to make inquiries – relevant principles discussed – no jurisdictional error found 

MIGRATION LAW – review of Immigration Assessment Authority decision – protection visa applicant – IAA made adverse credibility findings – information gap between Delegate and IAA – whether failing to bridge the information gap was unreasonable – whether IAA misapplied s 473DD of the Migration Act 1958 (Cth) – question as to materiality – no jurisdictional error – application dismissed – costs awarded 

MIGRATION – application for an extension of time – student visa – decision of Administrative Appeals Tribunal – inadequate explanation for delay – delay not significant – no prejudice to the first respondent – no reasonably arguable grounds of jurisdictional error – extension of time refused  

BANKRUPTCY – Application to set aside bankruptcy notice – whether application to set aside bankruptcy notice was made before the time for complying with it had expired – application to set aside bankruptcy notice not made before the time for complying with it had expired – whether in any event the applicant would have succeeded on any of the grounds on which he relies for setting aside the bankruptcy notice – applicant would not have succeeded – application dismissed.

INDUSTRIAL LAW – FAIR WORK – parties by consent seek declaration of contraventions of the Fair Work Act 2009 (Cth) – failure to comply with compliance notice issued under FW Act – key issue as to appropriate level of penalty to be imposed – consideration of weight to be given to second respondent’s health conditions and difficult personal circumstances – need for general and specific deterrence – declaration of contraventions and penalty orders made.

MIGRATION – Judicial review - Student visa – Whether the Tribunal failed to take into account relevant considerations as to the genuine temporary entrant criterion – Whether the Tribunal correctly applied the secondary criteria as to the applicants who were members of the family unit of the primary applicant – No error – Application dismissed 

MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Student (Class TU) (subclass 500) visa – where Tribunal found applicant not to meet ‘genuine temporary entrant’ criterion – where Tribunal’s findings reasonably open on the evidence before it – no jurisdictional error established – application dismissed with costs.

PRACTICE AND PROCEDURE – where applicant failed to comply with an order of the Court for the filing and service of a pleading – where the applicant failed to appear at a directions hearing of which she had notice – where the Court was of the view that the applicant had failed to prosecute the proceeding with due diligence – where the applicant’s claim in the proceeding was accordingly stayed.  

BANKRUPTCY – Bankruptcy Notice – Costs assessment – Application to set aside judgement debt – Whether the court should set aside a bankruptcy notice – Review of a Registrars Decision – Application dismissed 

BANKRUPTCY – Provable debts – unliquidated damages in tort - whether damages flowing from a verdict for the applicant with unliquidated damages to be assessed which was ordered before the respondent’s bankruptcy would be a debt provable in the bankruptcy.   

HUMAN RIGHTS – Unlawful discrimination alleged– Application to limit the maximum amount of costs that may be recovered by parties – Application dismissed 

INDUSTRIAL LAW – Application pursuant to s. 370(a)(ii) of the Fair Work Act 2009 (Cth) for extension of time within which to make a general protections court application – whether Applicant has reasonable explanation for delay – representative error – extension of time granted  

FAIR WORK – PRACTICE AND PROCEDURE – application for dismissal – non-appearance of the applicant.

MIGRATION – Administrative Appeals Tribunal – Protection visa - Whether the AAT decision was legally unreasonable, illogical, or irrational – Whether there was procedural error – Whether an allegation of bias is made out – Application dismissed   

MIGRATION - Administrative Appeals Tribunal – Protection (Class XA) visa –Whether jurisdictional error has been made out – Whether the Tribunal’s decision was legally unreasonable, illogical or irrational - Application dismissed 

MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa – Whether the decision of the IAA was implausible, illogical or irrational – Adverse credibility findings  

MIGRATION – application for extension of time for review of decision made by Registrar to summarily dismiss judicial review application – where applicants sought judicial review of Tribunal decision that it did not have jurisdiction to conduct review – no adequate explanation for delay – no prejudice to respondents – no realistic prospects of success in judicial review application – application for extension of time refused   

MIGRATION – INTERIM INJUNCTION REFUSED 

MIGRATION – APPLICATION FOR EXTENSION OF TIME – dismissed  

MIGRATION – ADMINISTRATIVE LAW- no jurisdictional error 

MIGRATION – PROCEEDINGS REMITTED FROM FCA ARE DISMISSED DUE TO GRANT OF VISA 

MIGRATION – Protection Visa – refusal – review of Immigration Assessment Authority (“IAA”) decision   

INDUSTRIAL LAW – Fair Work – alleged contravention of general protections provisions of Fair Work Act 2009 (Cth) – applicant claims employment dismissed by way of witch hunt because of complaints and inquiries he made – where adverse action and various exercise of workplace rights admitted but respondent employer maintained dismissal was motivated only by applicant’s serious misconduct involving a physical assault – finding that reverse onus not discharged – question of what (if any) relief to be heard separately. 

FAIR WORK -  penalties – failure to comply with compliance notices issued by Ombudsman – failure to provide payslips – consideration of relevant principles including objective of deterrence - whether compliance notice contraventions should be grouped – whether post-contravention conduct can be taken into account in assessing penalties – penalties ordered 

MIGRATION LAW – Application for protection visa – delay in making application – whether Tribunal had properly considered the facts before it – whether Tribunal’s decision unreasonable – whether Tribunal had properly conducted a review of the decision of the delegate – no jurisdictional error established – application for review dismissed. 

MIGRATION – Application for extension of time to bring proceeding – relevant considerations. MIGRATION – Student Visa - refusal – review of Administrative Appeals Tribunal (“Tribunal”) decision. MIGRATION – Bridging Visa - refusal – review of Tribunal decision.  

PRACTICE AND PROCEDURE – interlocutory application for an adjournment – application opposed – matter listed for an interlocutory hearing – no appearance by or on behalf of the applicant – interlocutory application dismissed for non-appearance pursuant to r 13.06(1)(d) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

BANKRUPTCY – Application for a stay of a sequestration order made by a Registrar pursuant to delegated authority – whether the Court has power to grant stay – what principles apply to determining whether to exercise such power – stay granted together with an order suspending the operation of s 60(2) and s 60(3) of the Bankruptcy Act 1966 (Cth) to the extent necessary to permit the debtor to pursue and maintain her interests in a proceeding in the Supreme Court of New South Wales 

INDUSTRIAL LAW – PRACTICE AND PROCEDURE – interlocutory application to set aside Notice to Produce – consideration of r 16.16 of Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – consideration of whether documents requested are specific and relevant – consideration of whether Notice amounts to request for discovery – consideration of whether documents could be requested by application for discovery or subpoena – exercise of discretion under r 1.07 of Rules – application granted with respect to one category of documents – application otherwise dismissed. 

INDUSTRIAL LAW – Fair Work – Contraventions of the Fair Work Act 2009 (Cth)   

MIGRATION – Protection 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 (subclass 500) visa – application for judicial review – invitation to provide information to Tribunal pursuant to s 359 – failure to provide information within prescribed period – whether the Tribunal erred by failing to again request the information and make a decision without a hearing – loss of right to a hearing – requesting information again discretionary – jurisdictional error not established – application for review dismissed