Judgments

MIGRATION – Skilled Work Regional (Subclass 491) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicant’s evidence – whether the Tribunal erred in its assessment of that evidence – whether the conduct of the applicant’s representative amounted to a fraud on the Tribunal – Ministerial Intervention – no jurisdictional error – application dismissed.   

MIGRATION – New Zealand Citizen (Family Relationship) visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or on behalf of the applicant – application dismissed 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).   

INDUSTRIAL LAW – contraventions – failure to comply with notices to produce – penalties. 

MIGRATION LAW – Application for judicial review of the decision of the Administrative Appeals Tribunal – affirmed decision to not grant a protection visa – whether Tribunal decision was affected by jurisdictional error – ground of review unparticularised – no jurisdictional error identified – application dismissed with costs 

MIGRATION – Application for judicial review of decision of Immigration Assessment Authority, affirming decision not to grant applicant a protection visa – whether Authority made a finding based on unwarranted assumptions lacking a probative evidentiary basis – whether Authority unreasonably failed to exercise its discretion in s 473DC of the Migration Act 1958 (Cth) to get new information from the applicant – jurisdictional error established – writs issued.    

MIGRATION – Application for judicial review of the decision of the Administrative Appeals Tribunal to not grant a Partner (Residence) (Class BS) (subclass 801) visa – spousal relationship ceased – Tribunal found there was no valid family violence claim to consider – compliance of the Applicant’s evidence with the Migration Regulations 1994 (Cth) – whether the applicant was put on notice of the dispositive issue in the Tribunal’s Decision – whether the Tribunal acted unreasonably and/or failed to provide a meaningful hearing – dispositive issue was not put to the applicant – jurisdictional error – application allowed with costs 

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

MIGRATION – Administrative Appeals Tribunal – Summary dismissal – payment of application fees – whether jurisdictional error is made out 

CONSUMER LAW – Application for orders under s 100 and s 101 of the National Credit Code for the delivery of a motor vehicle – whether applicant has given debtor at least 30 days’ notice from the date of the notice to remedy the default – no such notice given because the credit provided was not of the type to which the National Credit Code applied – not open to Court to consider granting relief on some alternative case that has not been sought to be raised – application dismissed 

MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether decision affected by apprehended bias – where the review was on remittal – nature of Part 7AA fast track review process - whether reference in decision to previous judgments exposed the reviewer to prejudicial material about the applicant – where evidence called to explain preparation of review materials – whether failure to call IAA reviewer gives rise to Jones v Dunkel inference – whether Jones v Dunkel applicable to decision-makers – whether fair-minded lay observer would apprehend conscious or subconscious bias – relevant considerations – whether reasons illogical or irrational -  judicial error established

MIGRATION - protection visa - judicial review of decision of Immigration Assessment Authority affirming refusal of visa – whether findings of Authority inconsistent – whether inconsistency reveals illogicality or irrationality in decision making – where Authority did not seek video from applicant or seek evidence to explain its non-production – whether Authority unreasonably failed to exercise discretion 

MIGRATION – Ex Tempore – a claim made for public interest immunity relating to certain information held by the Commonwealth   

FAMILY LAW – PROPERTY – Relationship of approximately 26 years – where it is difficult to quantify husband’s income and financial contribution – consideration of add-backs – division of assets on a two-pool basis – superannuation splitting orders – where the Court makes final orders for property settlement to affect a 65 per centum division of the net non-superannuation assets of the parties in favour of the wife.

MIGRATION – protection visa application – application for judicial review – alleged failure to properly consider protection claims – alleged failure to afford natural justice – grounds seeking impermissible merit review – jurisdictional error not established – application for review dismissed 

PRACTICE AND PROCEDURE – Interlocutory applications – Subpoena – Notice of objection to subpoena – Applicant issued subpoena to the Respondent for production of  particular classes of documents – Whether use of subpoena rather than application for discovery may amount to an abuse of process – Where subpoena treated as an application for particular classes of documents by way of discovery – Declaration that discovery of particular classes of documents in the interests of the administration of justice – Order for production of an identified document in “soft copy” format 

FAIR WORK – failure to comply with compliance notice issued by Fair Work Ombudsman – Statement of Agreed Facts - admitted involvement by director and shareholder of employing company - accessorial liability – pecuniary penalty for involvement in contravention – appropriateness of agreed penalty

INDUSTRIAL LAW – application for default judgment in relation to alleged involvement in contravention of s 716(5) of the Fair Work Act 2009 (Cth) – declaration and orders made 

INDUSTRIAL LAW – Failure to comply with Compliance Notice – pecuniary penalties imposed – whether Court should make order that Respondents take steps set out in the Compliance Notice – no utility in making the order – order refused.

FAIR WORK – PENALTY – Cashback arrangement- Where employee required to pay back to employer part of wages – Employee deprived of benefit of wages – Company sponsoring employee’s visa – Admissions as to contraventions – Corrective action taken – Penalty imposed 

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of an 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 – whether the Tribunal misconstrued or incorrectly applied relevant legislation – whether the Tribunal came to irrational conclusions about whether the first applicant would “overstay” her visa – whether the Tribunal’s decision was affected by bias – whether the Tribunal failed to afford the applicants procedural fairness – whether the Tribunal’s hearing invitation was invalid – no jurisdictional error – application dismissed.   

MIGRATION – judicial review of the decision of the Immigration Assessment Authority to not grant a protection visa – Applicant a citizen of Sri Lanka and a Tamil from the East province of Sri Lanka – finding that the Applicant did not face a real chance of harm on account of his Tamil ethnicity, his political activism, being a failed asylum seeker or upon returning to Sri Lanka after departing illegally – whether the IAA failed to consider new information under ss 473DC and 473DD of the Migration Act 1958 (Cth) – no error in the interpretation or application of the law – no unreasonableness – application dismissed with costs 

BANKRUPTCY – COSTS – whether costs should be awarded on an indemnity basis – exercise of court’s discretion – applicable principles – where creditor is entitled to costs – costs awarded in a fixed sum. 

MIGRATION LAW – review of the decision of the Immigration Assessment Authority not to grant a Safe Haven Enterprise (subclass 790) visa – finding that the applicant a Sri Lankan national who is Tamil and Hindu was not of adverse interest - whether the IAA’s adverse credibility findings were illogical, irrational or unreasonable – consideration of inconsistencies and the likelihood of claims – application dismissed – costs ordered  

MIGRATION – application for safe haven enterprise visa – review of decision of delegate of the Minister – whether delegate erred in finding that applicant satisfied the definition of “excluded fast track review applicant” – proper construction of s 5(1)(a)(iii) of the Migration Act 1958 (Cth) – whether delegate erred by failing to consider a claim squarely raised by the applicant concerning living conditions in Iraq – delegate’s decision affected by jurisdictional error – application allowed with costs 

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or on behalf of the applicants – 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 – application for judicial review – where Administrative Appeals Tribunal affirmed decision not to grant applicant a Student (Temporary) (Class TU) (Subclass 500) visa – where applicant concedes not enrolled in course of study at time of the Tribunal’s decision – oral submissions raised at hearing – whether Tribunal failed to make enquiries as invited to do so by documents provided by applicant – whether the Tribunal denied the applicant procedural fairness – application dismissed. 

MIGRATION –  Application for judicial review – decision of the Administrative Appeals Tribunal – citizens of the Philippines – reliance by Tribunal on opinion of Medical Officer of the Commonwealth – application of Public Interest Criterion 4005 – consideration of apprehended bias through prejudgment – whether the Tribunal’s failure to grant late adjournment of the hearing is considered procedurally unfair – no jurisdictional error established 

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) Visa – whether the Tribunal failed to “properly consider” evidence – whether the Tribunal’s decision was open on the material before it – application dismissed

MIGRATION – delegate refused to grant a partner visa – application for judicial review of the decision of the Administrative Appeals Tribunal to dismiss an application for non appearance – applicant sought reinstatement –whether the Tribunal acted unreasonably or denied the applicant procedural fairness – no jurisdictional error – application dismissed with costs 

FAMILY LAW – property – contempt application – finding that respondent contravened orders of the court – finding that no flagrant challenge to the authority of the court – application dismissed 

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a Skilled (Provisional) (Class VC) visa – whether the Tribunal failed to exercise a discretion, misinterpreted the relevant criteria, failed to consider evidence, denied the applicant procedural fairness and/or acted in a way that was legally unreasonable – application dismissed

INDUSTRIAL LAW – contravention of Award in breach of the Fair Work Act 2009 (Cth). INDUSTRIAL LAW – compensation – dependant on contravention or purported contravention of a civil remedy provision. 

INDUSTRIAL LAW – parties by consent seek declaration of contraventions of the Fair Work Act 2009 (Cth) – failure to comply with three compliance notices issued under s 716 Fair Work Act 2009 (Cth) – where liquidator has been appointed to first respondent company – where applicant only seeks declarations and orders against second respondent sole director – consideration of whether the common law concept of ‘course of conduct’ should apply to respondents’ failure to comply with compliance notices – further consideration of whether the court should exercise its discretion in setting penalty – where applicant primarily sought no penalty be imposed – consideration of weight to be given to second respondent’s financial difficulties and mental health challenges – declaration of contraventions and penalty orders made.

MIGRATION – Where applicant applied again for a Subclass 485 visa a criterion of which was that he had not previously held a visa of the same Subclass – where criteria for visa could be construed as having changed in interim – whether applicant previously held the same visa in circumstances where different conditions attached thereto  

MIGRATION – Applicant initially charged with certain indictable drug offences – Notice of Intention to Consider Cancellation issued in respect of initial charges – visa cancelled by delegate – where charges later changed to charge of concealing serious indictable offence to which applicant pleaded guilty – whether error by Tribunal in reaching state of satisfaction that grounds existed to cancel visa based on different charge – whether error in failing to consider PAM3

MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – whether a claim arose on the material before the IAA or from the IAA’s own findings – whether the IAA properly considered that claim – jurisdictional error established – writs issued.

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – reinstatement application – where acceptable explanation provided by the applicant – where there would be no prejudice to the Minister should the matter be reinstated – where no arguable case of jurisdictional error identified – application for reinstatement dismissed.   

MIGRATION – Where non-disclosure certificate issued pursuant to s 376 of the Act – Tribunal indicated during hearing that non-disclosure certificate would be sent for comment – before sending certificate for comment Tribunal approached Department and certificate was revoked and reissued – errors identified by Court – whether second certificate sent to applicant at all – error concerned by Minister that second certificate misstated effect of s 376 of Act denying applicant procedural fairness 

BANKRUPTCY – application for review of a sequestration decision made by a Registrar – where bankrupt had erroneously claimed that the Applicant Creditor had accepted the tender of a sum of money before the presentation of the Creditor’s Petition such that an amount less than the statutory minimum debt was duly owing – where bankrupt unable to pay her debts as and when they fell due – where sequestration order made.

MIGRATION – judicial review of visa cancellation decision – whether Administrative Appeals Tribunal misconceived the notion of “best interests of the children” – whether certificate issued purportedly under s 375A of the Migration Act 1958 (Cth) was valid – whether it could be inferred that the Tribunal read the material covered by the certificate – whether applicant denied a fair hearing consistent with s 360(1) of the Act – no error identified – application dismissed with costs

MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise (subclass 790) visa – where applicant claimed to fear harm on the basis of, amongst other things, ethnicity and actual or imputed political opinion as a sympathiser of the LTTE – consideration of whether the Authority’s finding that the applicant did not face a ‘real chance’ of serious or significant harm was reasonably open in light of its ‘cumulative’ findings – further consideration of whether Authority applied correct test in finding that new information provided by the applicant was not ‘credible personal information’ – construction of s 473DD(b)(ii) of the Migration Act 1958 (Cth) – further consideration of whether Tribunal’s determination not to consider new information under s 473DD was legally unreasonable – admissibility of incomplete transcript of applicant’s interview with the delegate – no jurisdictional error established – application dismissed with costs.

MIGRATION –Student visa – decision of the Administrative Appeals Tribunal – whether the primary applicant could satisfy the genuine temporary entrant criterion under cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) – where primary applicant had provided material directed at her personal ties and economic circumstances in her home country and her incentive and preference to return to Vietnam– whether Tribunal failed to have regard to factors identified in Ministerial Direction No. 69 – whether Tribunal required to explicitly engage with and answer the question posed by paragraph 9(b) of Ministerial Direction No. 69 – where Tribunal did not find primary applicant’s evidence and contentions concerning ties to Vietnam convincing – no jurisdictional error established – application dismissed with costs

MIGRATION – Application for judicial review of decision of the Immigration Assessment Authority – safe haven enterprise visa – where the Applicant claims there was a constructive failure by the Authority to exercise review jurisdiction – where the Applicant claims there was a failure to consider an integer of the claim – jurisdictional error established – material error found - application for review allowed

MIGRATION – applications for temporary and permanent spousal visas - judicial review of decision of Administrative Appeals Tribunal to dismiss application – where applicant did not attend Tribunal hearing – whether applicant notified of invitation to Tribunal hearing – manner of service of invitation – whether service of hearing invitation on applicant’s representative sufficient – where applicant knew of invitation in any event – whether any injustice where Tribunal determined application without hearing from applicant

MIGRATION – Application for judicial review of Administrative Appeals Tribunal decision – cancellation of Student (Temporary) (class TU) (Subclass 573) visa (student visa) – whether Tribunal failed to afford procedural fairness – whether Tribunal made a finding without supporting evidence – no jurisdictional error – application dismissed.

INDUSTRIAL LAW – COSTS – application for costs pursuant to s 570 of the Fair Work Act 2009 (Cth) following a successful summary dismissal application some years into the proceedings – discretionary considerations – where some unreasonable conduct was found, but impact on costs was likely to have been limited – where it was not unreasonable for the summary dismissal application to have been opposed – costs application dismissed

INDUSTRIAL LAW – application for compensation consequent upon contraventions of an enterprise agreement. INDUSTRIAL LAW – application for penalties consequent upon contraventions of an enterprise agreement

MIGRATION – application for an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal – 23 grounds of review relied upon – extension of time granted – application otherwise dismissed

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal failed to take “proper account” of the applicant’s statutory declaration – where the applicant contended that an interpreter in another dialect had been provided – where this does not appear to have materially compromised his ability to participate in the review – non-material error regarding a non-disclosure certificate – application dismissed