Judgments

MIGRATION – Employer Nomination (Subclass 186) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicants’ “compelling circumstances” – whether the conduct of the applicants’ migration agent amounted to a fraud on the Tribunal – whether the Tribunal erred by failing to “link” the applicants’ review application with another review application – whether the first applicant was properly notified of the Tribunal hearing – whether the Tribunal failed to afford the applicants procedural fairness – no jurisdictional error – remittal futile in any event – application dismissed.

MIGRATION – Employer Nomination (Subclass 186) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred by failing to provide a hearing to the applicants – whether the Tribunal failed to consider relevant documents – whether the conduct of the applicants’ representative amounted to a fraud on the Tribunal – whether the first applicant should have been given additional time to find a new sponsor – whether the Tribunal failed to comply with s 359A of the Migration Act 1958 (Cth) – jurisdictional error established – whether the Court should exercise its discretion and refuse to grant relief on the basis that no useful result could ensue – relief refused – application dismissed.

CONSUMER LAW – protection – Preliminary hearing – security interest – vehicle – proposed joinder – prospective respondent

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

CHILD SUPPORT – Costs - where the appeal was dismissed - where the Child Support Registrar is seeking costs in respect to the failed appeal - held that the respondent pay to the Child Support Registrar costs in the sum of $5,500

PRACTICE & PROCEDURE – default judgment – application for declarations.

MIGRATION - application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA unreasonably declined to exercise, or unreasonably failed to consider exercising, its powers under s 473DC of the Migration Act 1958 (Cth) – whether the IAA committed an error of law and/or acted in a legally unreasonable manner in considering the applicant’s claims regarding evasion of military service – application succeeds

MIGRATION – protection visa – refused to grant protection visa under section 65 of Migration Act 1958 (Cth) – Administrative Appeals Tribunal affirm delegate’s decision – applicant’s claim for protection grounded on claim to be member of particular social group, being homosexual in Kenya – judicial review – jurisdictional error – whether decision by Tribunal involved assumptions pre-conceptions or prejudgments –materiality of reasoning in error – writ of certiorari issued – writ of mandamus issued.

MIGRATION – application for judicial review of decision of Immigration Assessment Authority – Safe Haven Enterprise (Class XE) (Subclass 790) visa – whether the Authority was legally unreasonable to consider “new information” in the form of changed country information without exercising its discretion to invite applicant’s response – whether finding as to chance of harm from sectarian or generalised violence was irrational or the Authority otherwise misunderstood the statutory thresholds – whether the Authority misapprehended its task on review or was irrational in relying on an omission at arrival interview to make an adverse finding of credit – where no jurisdictional error established – application dismissed with costs.

PRACTICE AND PROCEDURE – application for leave to file further amended statement of claim – civil penalty proceedings – allegations of contraventions of Fair Work Act 2009 (Cth) - degree of specificity required in pleadings – overarching purpose of civil procedure considered – whether costs of application should be paid by applicant – s 570 of Fair Work Act considered – costs of application reserved

CONSUMER LAW – protection – Preliminary hearing – security interest – vehicle – proposed joinder – prospective respondent 

FAIR WORK – penalty hearing – course of conduct- not serious contraventions- contrition- no need for specific deterrence

MIGRATION – ADMINISTRATIVE LAW – student visa – no jurisdictional error

BANKRUPTCY – application for leave to proceed against the First Respondent in the Supreme Court of Victoria pursuant to s.58(3) of the Bankruptcy Act 1966 (Cth) – application allowed.

INDUSTRIAL LAW - alleged contraventions of a modern award in breach of the Fair Work Act 2009 (Cth) – alleged underpayment of award entitlements to overtime, penalty rates and meal allowance – whether the correct job classification under the award was “Cook (tradesperson)” or “Managerial staff”.

INDUSTRIAL LAW – Hospitality Industry (General) Award 2010 – interpretation – “hotel manager” – “senior management”.

INDUSTRIAL LAW – whether an employer, having contravened an award, can expunge the contravention by compliance pro nunc tunc.

MIGRATION - application for an extension of time in which to seek review of a decision by the Administrative Appeals Tribunal – relevant considerations – adjournment applications – application for an extension of time dismissed

MIGRATION - application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal’s decision was relevantly affected by legal unreasonableness – application dismissed

BANKRUPTCY – application by trustee in bankruptcy of discharged bankrupt for orders pursuant to s 66G of the Conveyancing Act 1919 (NSW) for the sale of two properties of which at the time he was made bankrupt the bankrupt was the registered proprietor with his de facto spouse – whether in relation to one of the properties (first property) the de facto spouse had contributed $63,000 of her own money towards the purchase price of $133,000 – de facto spouse contributed $63,000 – whether because the de facto spouse contributed $63,000 towards the purchase price of the first property the bankrupt held part of his legal interest in the first property as trustee for the de facto spouse on a resulting trust – bankrupt held part of his interest on resulting trust – whether because the bankrupt and de facto spouse raised money on the security of the first property to purchase a second property the bankrupt held his legal interest in the second property on resulting trust in the same proportion he held his legal interest on resulting trust in the first property – no resulting trust over the second property – orders for sale made on the basis that the bankrupt held and the trustee in bankruptcy now holds part of the bankrupt’s legal interest in the first property on resulting trust.  

BANKRUPTCY – application for stay or discharge of orders authorising trustee in bankruptcy to exercise power of sale of properties co-owned by the second respondent – alleged breach by trustee of duties owed under s 19 of the Bankruptcy Act 1966 (Cth) – whether trustee authorised unnecessary demolition and improvement works to the properties in purported compliance with power of sale – whether trustee’s failure to accept offers of settlement made by the second respondent and failure to make enquiries concerning the capital gains tax consequences of the sale of the properties engaged the supervisory jurisdiction of the Court – where failure of the trustee to make capital gains tax enquiries had stultifying effect on the ability of the trustee to administer the bankrupt estate - where parties invited to make submissions as to form of appropriate orders having regard to reasons for judgment 

MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority failed to consider whether new information met criteria in s 473DD(b)(ii) of Migration Act 1958 (Cth) – whether Authority failed to consider all claims raised by applicant – Authority decision affected by jurisdictional error – writs issued

MIGRATION – application for an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal – application of s 48A of the Migration Act 1958 (Cth) – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to make inquiries or consider the claims and evidence before it in the manner required – consequences of the decision in question having been substituted under s 417 of the Act – extension of time granted – application otherwise dismissed

MIGRATION – application for judicial review of decision made by Immigration Assessment Authority – whether Authority acted unreasonably in failing to exercise its discretion in s 473DC of the Migration Act 1958 (Cth) to get new information – whether Authority made a finding that was illogical or irrational – whether Authority made a finding without evidence – no jurisdictional error – application dismissed. 

MIGRATION – protection visa application – application for judicial review – whether the Tribunal considered the risk of harm to the second applicant in the event that she was returned to Iran and did not comply with dress requirements – finding that Tribunal did not consider such risk of harm – whether the Tribunal failed to consider evidence given in respect of the experiences of a third party’s imprisonment and rape – finding that the Tribunal considered fear of imprisonment and rape – jurisdictional error established – application for review allowed

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider that the applicant’s circumstances for breaching his visa condition were “out of his control” – whether the Tribunal overlooked relevant materials – whether the Tribunal asked itself the wrong question – whether the Tribunal’s decision was affected by bias – whether the Tribunal’s finding that the applicant was not a genuine temporary entrant was unreasonable – no jurisdictional error – application dismissed.

MIGRATION – Skilled Independent visa – decision of the Administrative Appeals Tribunal – whether the Tribunal’s findings were based on “no evidence” – whether the Tribunal erred in finding that the first applicant could not satisfy cl 189.224(1) in Schedule 2 of the Migration Regulations 1994 (Cth) – whether the conduct of the applicants’ representative amounted to fraud on the Tribunal – meaning and effect of Ministerial intervention – no jurisdictional error.

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal dismissing application because Tribunal had no jurisdiction – application for judicial review filed late – extension of time request – minimal delay – inadequate explanation – no prejudice – no arguable case of jurisdictional error – extension of time refused.

BANKRUPTCY – personal insolvency agreement – relevant trustee commenced proceedings to terminate agreement pursuant to section 222C of the Bankruptcy Act – proceedings subsequently adjourned on several occasions – during the periods of adjournment the relevant PIA varied to extend time for payment of agreed amounts – terms of PIA subsequently met – trustee sought costs of 222C proceedings which were not ultimately required – orders made to this effect – did the orders reflect intention of the court – application made to vary orders – matters to be considered

PRACTICE AND PROCEDURE – COSTS – costs of successful interlocutory application to reopen applicants’ case after judgment reserved to tender and admit documents not available to applicants at hearing – whether costs should follow the event where applicants sought indulgence of the Court – costs apportioned among participating respondents – actions of solicitor unnecessarily extended hearing – personal costs order against solicitor

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – extension of time application – lengthy delay – adequate explanation for delay provided – no prejudice to Minister if extension of time granted – no arguable case of jurisdictional error –– extension of time refused – effect of Ministerial intervention.

MIGRATION – Cancellation of student visa –  Applicant did not comply with a condition of the Visa to be enrolled in a registered course – Tribunal had statutory discretion to cancel visa – Applicant has not identified any relevant consideration the Tribunal did not take into account or irrelevant consideration the Tribunal took into account – Tribunal’s decision not manifestly unreasonable – Tribunal did not misapply the Act or Regulations – Application dismissed 

MIGRATION - application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) affirming refusal of a protection visa – whether the IAA “overlooked an issue” in a manner capable of giving rise to jurisdictional error – whether the IAA’s reasoning was irrational, illogical or unreasonable – application dismissed 

PRACTICE AND PROCEDURE – application for dismissal of the applicant’s application – whether proceedings should be dismissed for want of prosecution and/or failure to comply with orders of the Court – where proceedings were commenced in 2020 – where the applicant’s case had not meaningfully progressed in over a year – where the applicant’s solicitor on the last occasion had been unable to obtain instructions and the applicant did not subsequently respond to the foreshadowed dismissal application, or the application when made, prior to the morning of its hearing – where the applicant’s response gave the Court no confidence that the proceedings would be prosecuted in a timely fashion – order made that the proceedings be dismissed

MIGRATION – protection visa – decision of Administrative Appeals Tribunal (“Tribunal”) – application for extension of time – significant delay – unsatisfactory explanation for delay – no prejudice – no arguable case of jurisdictional error – allegation of fraud made at hearing – whether conduct of party third party amounted to fraud – no jurisdictional error – application dismissed with costs.

MIGRATION – JUDICIAL REVIEW – Safe Haven Enterprise Visa – Extension of time granted – Whether the applicant held a well-founded fear of persecution – Legally unreasonable – Whether applicant could relocate – Application dismissed

PRACTICE & PROCEDURE – original Application under the Fair Work Act 2009 (Cth) – Respondents refuse to submit to jurisdiction – issue of “service” through the diplomatic channel as permitted under the Foreign States Immunities Act 1985 (Cth) – where the Respondents initially sought summary dismissal of the original Application but then only ran very limited arguments at hearing – “conclusive Certificate” under the Foreign States Immunities Act 1985 (Cth) issued twice but the Certificate was never addressed by the Respondents who also did not address relevant authority including by the High Court – Application to re-open granted and Application for summary dismissal and general declaration of immunity dismissed.

MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – statutory requirement for Tribunal to comply with Ministerial Direction No.56 – requirement to have regard to most recent country information – where more recent country information published after Tribunal hearing but before decision – whether Tribunal considered most recent country information – whether more recent information relevant to applicant’s claims - whether permissible to rely on older country information – materiality of alleged error – application dismissed

MIGRATION – application for an extension of time to seek judicial review – decision of the Administrative Appeals Tribunal affirming decision to refuse applicant a protection visa – where applicant failed to appear at scheduled Tribunal hearing – where Tribunal proceeded with review pursuant to s 426A(1A)(a) of the Migration Act 1958 (Cth) – where applicant’s claims lacking in detail – explanation for delay in lodging application for judicial review unsatisfactory – proposed grounds of review lacking in merit – not necessary in the interests of the administration of justice to extend time – application for an extension of time refused with costs

INDUSTRIAL LAW - Fair Work – alleged contraventions of the Fair Work Act 2009 (Cth) - adverse action – restructure of travel business due to Covid-19 pandemic - dismissal of general manager following refusal to accept and perform redeployment role –whether the Applicant’s initial role was made redundant and he was entitled to redundancy pay - whether the Applicant was dismissed because he exercised his workplace rights and/or took personal leave – whether the Respondent exerted undue influence or undue pressure on the Respondent – Applicant’s role was not redundant – reverse onus discharged - no contraventions - application dismissed

MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed  

CHILD SUPPORT – Administrative law – application for Judicial Review – appeal from the Administrative Appeals Tribunal – nature of a Judicial Review – characterisation of prescribed non-agency payments – appeal based on assertion that AAT exercised discretion on inadequate basis – failed to follow policy – failed to give adequate reasons – relevant decision characterised as legally unreasonable – where email correspondence passed between the parties stating the father will pay private school fees and assessed child support – where property settlement final orders contained a notation to that effect – where father later claimed these as non-agency payments – whether the discretionary decision of the Registrar should be set aside – matters to be considered – appeal dismissed with costs

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or for 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).   

MIGRATION – application for extension of time to seek judicial review of Tribunal decision – significant delay – no adequate explanation for delay – no prejudice to respondent – no realistic prospects of success in judicial review application – extension of time refused 

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal erred by misunderstanding and/or misapplying s.5J(5)(e) of the Migration Act 1958 (Cth) – application dismissed

CONSUMER PROTECTION – consumer loan contract –order sought for entry to premises to recover mortgaged goods – whether evidence sufficient to establish that premises residential and to warrant order sought

INDUSTRIAL LAW – when alleged requirement for consultation first raised by applicant – whether direction given was or was required to be a JobKeeper enabling direction – JobKeeper location change enabling direction –whether written notice given of intention to give a JobKeeper location change enabling direction – if written notice was given whether it was given three days before any JobKeeper location change enabling direction was given – whether if one or both of the requirements concerning the giving or timing of notice have not been met – whether there is a JobKeeper location change enabling direction 

MIGRATION – judicial review of Administrative Appeals Tribunal decision to affirm refusal of Skilled (Residence) (subclass 866) visa – where Tribunal not satisfied that applicant met relevant Public Interest Criteria – where delegate found that applicant provided a bogus document in support of visa application – where Tribunal reasonably suspects skills assessment based on false or misleading work reference letter – where there was evidence of fraudulent conduct by rogue – where the work experience employer suspected of involvement in production of false or misleading reference letter – whether failure of Tribunal to summons convicted rogue or call employer denied the applicant a hearing pursuant to s 360 – whether Tribunal failed to make an obvious inquiry – whether failure to summons or call fraudster and/or employer legally unreasonable 

MIGRATION – Administrative Appeals Tribunal - Student (Class TU) (Subclass 500) visa – whether applicant denied procedural fairness – whether Tribunal failed to apply relevant law – whether there was jurisdictional error. 

MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) (Subclass 500) visa – whether Tribunal failed to consider relevant evidence – whether Tribunal applicant denied procedural fairness – whether there was jurisdictional error. 

MIGRATION – costs – where the matter was conceded on the basis of a ground pleaded in a further amended application filed some years after the commencement of the proceedings and three weeks before hearing – where proceedings were nonetheless attended with a level of procedural, factual and legal complexity – fixed costs order made 

MIGRATION LAW – Protection visa – Application for an extension of time to seek judicial review of decision of the Administrative Appeals Tribunal – Applicants alleged third-party fraud stultified the Tribunal’s processes – In this case given fraud allegation appropriate for the Court to engage in more than an impressionistic assessment of the merits on an extension of time application – First Applicant gave sworn evidence as to alleged fraud – First Applicant’s evidence as to alleged fraud unsatisfactory – No fraud proved – Application dismissed