Judgments

PRACTICE AND PROCEDURE – application for substituted service in respect of the second respondent – where the second respondent appears to be aware of and to have engaged representation in relation to the proceedings but “require[s] personal service” – obligations under s 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – orders for substituted service made

BANKRUPTCY – Application for an order pursuant to s.146 of the Bankruptcy Act 1966 (Cth) – application for an order that trustee is justified to distribute to creditors – failure to file Statement of Affairs – where assets exceed liabilities – orders made as sought  

INDUSTRIAL LAW – penalty hearing – agreed penalties ordered – personal payment order 

INDUSTRIAL LAW – alleged contraventions of ss 340 and 352 of the Fair Work Act 2009 (Cth) - adverse action - termination of employment - whether employee exercised workplace rights - whether complaints or inquiries made fall within with s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) – temporary leave of absence – reverse onus enlivened - reasons for termination decision – whether prohibited reasons substantive and operative reasons for dismissal - multiple reasons - employer failed to rebut presumption - one finding of adverse action – compensation ordered.  INDUSTRIAL LAW – CONTRACT LAW – reasonable term of notice – whether written employment agreement had implied term – employment agreement had express notice period and payment in lieu of notice – no breach of contract.  CONSUMER LAW – misleading and deceptive conduct – pre-employment negotiations – representations as to the future – whether representations made in trade or commerce – whether representations induced applicant into accepting offer of employment - no proof of reliance – claim dismissed.

MIGRATION – Visa application overseas – no right to merits review – translations of documents – whether delegate engaged with claims of the applicant – whether finding of the delegate open on the evidence – application dismissed   

MIGRATION  - IAA – citizen of Iran – no arguable case – application dismissed under r 44.12

INDUSTRIAL LAW – Fair Work – Contravention of  716  of the Act – Determination of pecuniary penalties – orders mande 

MIGRATION – applications for interlocutory injunction to restrain Minister from removing applicant from Australia – whether serious question to be tried – applications dismissed.   

MIGRATION LAW – Protection Visa – Whether a person is a citizen or national of a receiving country is determined solely by reference to the law of that country – The existence, nature and scope of any principles of law of a foreign jurisdiction is a question of fact – There was a rational and intelligible foundation for the Authority’s decision that the Applicant was a Sri Lankan national and not stateless – There is a distinction between a person who is presently a national or citizen of a country and a person who has the capacity to acquire nationality or citizenship of a country – It was not unreasonable for the Authority not to get new information as to whether the Applicant was a Sri Lankan national or stateless either in writing or at an interview with him – The Authority did not fail to have regard to material evidence – Application dismissed 

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

INDUSTRIAL LAW – General protections – respondent employer altering applicant employee’s position to their prejudice – workplace health and safety issues –performance improvement plan – formal and informal meetings – workplace bullying – denial of sick leave - whether the employee has made complaints or inquiries amounting to the exercise of workplace rights pursuant to s 341 of the Fair Work Act 2009 (Cth) (FW Act) – whether the employee has been subject to an adverse action in contravention of s 340 of the FW Act – identification of the person or people who decided to engage in adverse action - whether the statutory onus in s 361 of the FW Act has been discharged in relation to the decision maker – application dismissed.

MIGRATION – Administrative Appeals Tribunal –Protection (subclass 866) visa – whether Tribunal erred in considering evidence – whether there was jurisdictional error.

BANKRUPTCY – application by creditor for interlocutory mandatory injunction that the bankrupt’s trustee in bankruptcy file a notice under s 149C of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) objecting to the discharge of the bankrupt by operation of s 149(4) of the Bankruptcy Act – whether the creditor has a good arguable case that the trustee in bankruptcy declined to file a notice of objection because it did not ask itself the correct question – no arguable case – whether even if there were an arguable case any relief would be available – interim and final application for relief dismissed. 

INDUSTRIAL LAW – Fair Work – orders sought for a litigation guardian to be appointed – orders sought for second respondent’s legal representatives to withdraw from the proceedings – the application is refused  

HUMAN RIGHTS – application for leave under s 46PO of Australian Human Rights Commission Act 1986 (Cth) – where Commission previously terminated applicant’s complaint – consideration of whether it is in the interests of the administration of justice for leave to be granted – where the applicant claims unlawful discrimination on the grounds of disability – claim that features of the National Redress Scheme for Institutional Child Sexual Abuse were more difficult for the applicant to understand and deal with because of his disabilities – claim that these features of the Scheme could have been made easier for the applicant if the respondent had made reasonable adjustments – where applicant previously received ‘global payment’ in settlement of proceedings in County Court of Victoria – factual issue as to whether applicant was properly informed about his rights under the Scheme prior to commencing proceedings in the County Court of Victoria, which in turn, prejudiced his rights under the Scheme – finding that applicant has more than a merely fanciful claim – application for leave granted.

INDUSTRIAL LAW – Fair Work – Pecuniary penalties – failure of the respondent to comply with Compliance Notice – whether penalty should be imposed and level of penalty to be imposed – factors relevant to penalty.

MIGRATION – Partner visa – decision of the Administrative Appeals Tribunal – whether the notification letter in this matter is defective as per the recent authority in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 – Sandor distinguishable – whether the Tribunal erred by failing to exercise its discretion to extend the time within which the applicant could seek review of the delegate’s decision – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal’s decision was illogical, irrational or unreasonable – no jurisdictional error – application dismissed.

MIGRATION – Temporary Work (Skilled) visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – applicant sought to withdraw his application less than 30 minutes prior to hearing – leave granted for applicant to discontinue application – costs awarded to the Minister. 

MIGRATION – Partner visa – decision of the Administrative Appeals Tribunal – whether the Tribunal misinterpreted the independent expert report – whether the independent expert misinterpreted the evidence before it – whether the independent expert failed to consider all of the evidence – no jurisdictional error – application dismissed.

MIGRATION – Administrative Appeals Tribunal – temporary partner visa – whether the Tribunal unreasonably failed to inform the applicant that his evidence needed to satisfy the requirements of IMMI 12/116 – whether there was a fraud on the Tribunal. 

MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa – whether the Authority’s findings were irrational.

MIGRATION LAW – Safe Haven Enterprise Visa – Applicant sought protection because of alleged threats from political group in receiving country – Tribunal transcript cannot be employed to supplement Tribunal’s reasons – Whether exercise of Tribunal’s statutory discretion not to obtain oral evidence legally unreasonable – Evidence of Applicant so compromised that evidence from proposed corroborative witnesses could not affect the outcome 

MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Global Special Humanitarian visa – where applicant provided inconsistent identity information and documentation – where applicant’s visa subsequently cancelled under s 116(1AA) of the Migration Act 1958 (Cth) – claim that Tribunal misunderstood and misapplied the law – consideration of the meaning of ‘identity’ in s 116(1AA) – claim that applicant was denied procedural fairness by Tribunal failing to invite his half-brother to comment on his visa being consequentially cancelled – consideration of procedural fairness obligations in s 140 – consideration of the meaning of ‘holder’ in s 119 – claim that Tribunal incorrectly applied Department policy guidelines – no jurisdictional error established – application dismissed with costs.

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the notification letter in this matter is defective as per the recent authority in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 – Sandor distinguishable – whether the Tribunal erred by failing to invite the applicant to appear at a hearing – whether the Tribunal failed to consider the applicant’s reasons for filing her review application out of time – whether the Tribunal erred by failing to “investigate” whether the applicant met the criteria for the grant of the visa – whether the Tribunal acknowledged that the applicant had made a valid review application – whether the Tribunal failed to comply with its obligation to conduct a review in this matter – whether the Tribunal failed to comply with its procedural fairness obligations – whether the Tribunal erred by not allowing the applicant an opportunity to present evidence and arguments in relation to her visa application – lack of legal assistance or legal advice – no jurisdictional error – application dismissed.   

MIGRATION -  Judicial review – alleged breach of section 424A of the Migration Act 1958 (‘Cth’) – where First Applicant’s claim heard together with separate claims by his son – where son provided information to the Administrative Appeals Tribunal (‘Tribunal’) while the First Applicant was out of the room – where the Tribunal used the information provided by the son to form an adverse view of the First Applicant’s credibility – whether the information provided is properly to be regarded as information – whether the information had previously been supplied by the First Applicant – HELD the statements of the son were information and had not previously been provided – jurisdictional error established. 

INDUSTRIAL LAW – Fair Work Act 2009 – exercise of workplace right to take unpaid parental leave – adverse action – Applicant’s employment terminated – failure to provide written notice of termination – determination of liability. 

MIGRATION – judicial review – application for summary dismissal of application for judicial review – where Tribunal dismissed review application after applicant failed to appear at hearing – where Tribunal confirmed dismissal decision after applicant failed to apply for reinstatement within prescribed period – whether Tribunal exercised its powers reasonably and in a manner that was procedurally fair to the applicant – whether Tribunal’s email correspondence was sent to “the last … email address … provided to the Tribunal by the [applicant] in connection with the review”

MIGRATION – application for interlocutory injunction to restrain Minister from removing applicant from Australia – where applicant has pending request for Ministerial intervention – whether serious question to be tried – where balance of convenience lies – application for an interlocutory injunction refused.

PRACTICE & PROCEDURE – Application for recusal – transfer of proceedings to another judicial officer – indemnity costs reserved  

INDUSTRIAL LAW – Fair Work – orders sought to rely upon a medical report from a Psychiatrist – the application is refused.

MIGRATION - protection visa - decision of the Administrative Appeals Tribunal - application for extension of time - significant delay - unsatisfactory explanation for delay - no prejudice - no arguable case of jurisdictional error - application dismissed with costs

MIGRATION – Whether Authority erred in application of s 473DD – where article pre-dated delegate’s decision by two days

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether centrally relevant parts of the IAA’s reasoning were logically open to it – whether the IAA adequately engaged with the evidence before it – application succeeds 

MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant protection visa – whether Tribunal failed to consider relevant considerations, information and material – whether Tribunal had a duty to inquire under s 424 of the Migration Act 1958 (Cth) – whether Tribunal decision was illogical, irrational or unreasonable – no jurisdictional error – application dismissed  

MIGRATION – judicial review – application for summary dismissal of application for judicial review – where Tribunal dismissed review application after applicant failed to appear at hearing – where Tribunal confirmed dismissal decision after applicant failed to apply for reinstatement within prescribed period – whether Tribunal exercised its powers reasonably – whether Tribunal’s email correspondence was sent to “the last … email address … provided to the Tribunal by the [applicant] in connection with the review” – where applicant told the Court during the summary dismissal application that the Tribunal did nothing wrong and that his application for judicial review should be dismissed.

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

PRACTICE AND PROCEDURE – dispute over contents of tender bundle following close of evidentiary cases – procedural ruling 

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 for 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 – 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 for 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 – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA misapplied s 473DD of the Migration Act 1958 (Cth) – whether the IAA overlooked a number of documents that were centrally relevant to the applicant’s claims – application succeeds  

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal misunderstood, misinterpreted or overlooked various aspects of the applicant’s evidence – whether the Tribunal’s reasoning was relevantly open to the Tribunal – interpreter error – materiality – application dismissed

PRACTICE AND PROCEDURE – application for reinstatement of judicial review application following dismissal for non-appearance – where judicial review application has no reasonable prospects of success.

MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant student visa – where grounds largely address merits and/or express disagreement with Tribunal decision

MIGRATION LAW – Application for a protection visa – Alleged legal unreasonableness in the Tribunal’s failure to exercise its statutory discretion to require the Secretary to arrange for the making of an investigation as to the genuineness of divorce certificates emanating from an Israeli ecclesiastical court or the state of Israel – Alleged illogical or unreasonable reasoning as to the Tribunal’s rejection of the Applicant’s evidence as to  her marital status being relevant to her claims of family violence – Alleged failure to consider an integer of the claim as to the Applicant not being able to avail herself of the protection of Israeli authorities – Application dismissed

MIGRATION – where submissions made to the Immigration Assessment Authority on behalf of the applicant concerning personal information were made in error or by mistake in three of four respects – where applicant deposed in an affidavit, without objection, that had the Authority sought information from him as to the accuracy of such submissions, he would have advised the Authority that he was relying upon one of the four new claims – whether the Authority, acting reasonably, ought to have exercised power under s. 473DC(3) of the Migration Act to get new information from the applicant’s representatives as to whether the submissions were accurate or not, and if not, to what extent they were inaccurate – Authority acted unreasonably – jurisdictional error established – application for review granted.

FAIR WORK –– Employer’s fair treatment system policy – whether a benefit – whether an entitlement under employment contract – whether a safety net contractual entitlement.

EMPLOYMENT – termination of employment contract – whether employment contract can be resuscitated or terminated twice – whether variation of employment contract or new contract.

PRACTICE AND PROCEDURE – application for leave to amend defence – factors for consideration – prejudice – case management – delay – use of judicial and administrative court resources – whether amendments arguable – whether amendments in the interests of justice.

WORDS AND PHRASES – “safety net contractual entitlement” – “benefit” – “entitlement”.

MIGRATION – Protection (Class XA) visas – review of Administrative Appeals Tribunal – multiple applicants –  whether Tribunal failed to reasonably consider applicant’s request to contact father – Tribunal gave adequate consideration of request – consideration of Tribunal’s reasons as a whole – grounds of application not made out – application dismissed 

INDUSTRIAL LAW – Contraventions of Fair Work Act 2009 (Cth) – pecuniary penalty – deterrence  

MIGRATION – judicial review – where Immigration Assessment Authority affirmed delegate’s refusal to grant safe haven enterprise visa – whether IAA constructively failed to exercise jurisdiction – whether Authority failed to consider integers of applicant’s claims – whether inconsistent findings in Authority’s reasons were illogical, irrational or legally unreasonable – whether error was material – whether Authority unreasonably failed to exercise discretion under s 473DC to get new information from applicant – whether late claim was a new claim or development of earlier claim 

INDUSTRIAL LAW – Fair work – termination of employment – underpayment – exercising of workplace right – false or misleading representation about the workplace – discrimination on basis of sex – matter settled at mediation – where applicant under a disability – approval of settlement by the Court.  PRACTICE AND PROCEDURE – Approval of settlement by Court – best interests of the applicant – settlement approved 

MIGRATION LAW – application for review of a decision of the IAA to affirm a decision of the Minister’s delegate to refuse the applicant a SHEV – where the applicant is a citizen of Sri Lanka – where the applicant is of Tamil ethnicity – where the applicant’s family had connections to the LTTE – where the applicant claimed to have gone into hiding before leaving Sri Lanka – where the applicant claimed to have a well-founded fear of persecution on the ground of being subjected to sexual violence – where the Authority found that the applicant did not face a real change of serious harm from sexualised violence – the court is satisfied there was jurisdictional error – the decision is quashed.