Judgments

HUMAN RIGHTS – Application for declarations and compensation for alleged sexual harassment – where the court was unable to make findings one way or the other that any pleaded conduct was unwelcome – where onus of proof not discharged by applicant – where application dismissed accordingly.

MIGRATION – Application for judicial review – decision of the Administrative Appeals Tribunal as it was - subclass 189 skilled independent visa – where the applicant claimed that the Tribunal failed to consider the best interests of the applicant’s child in cancelling the applicant’s visa under PAM3 and in accordance with the Convention on the Rights of the Child – finding that the Tribunal failed to give consideration to the best interests of the child – finding that the failure to consider the child’s best interests is material in the circumstances – jurisdictional error established – writ of certiorari issued – order for costs.

MIGRATION – Judicial review – Student visa refusal – whether Tribunal failed to consider information and claims – whether Tribunal denied the applicant an opportunity to give information – whether Tribunal’s decision not to adjourn the review was legally unreasonable – no jurisdictional error established – application dismissed.

MIGRATION – judicial review – whether Tribunal erred in finding it had no jurisdiction – no jurisdictional error established – application dismissed.

BANKRUPTCY – application under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) for leave to continue proceedings in the District Court of New South Wales – parties – considerations regarding grant of leave – Trustee consent to orders proposed – leave granted

HUMAN RIGHTS – Where the applicant was a disabled man who owned an assistance animal as defined under the Disability Discrimination Act – where the applicant was a member of the Respondent – where the Respondent refused to allow the applicant to take his dog on a feral animal shoot for safety reasons – where the applicant asserted that the refusal constituted discrimination under the Act – where no discrimination found – application dismissed.

INDUSTRIAL LAW – Fair work – small claims list –where applicant makes claims relating to breach of written contract, Banking, Finance and Insurance Award 2020 and the Fair Work Act 2009 (Cth) – whether contract was properly terminated pursuant to s 117(1) of the Fair Work Act 2009 (Cth) – whether new employment relationship formed after termination – where applicant failed to establish that he was in a relationship of employment following the lawful termination of his employment contract – no basis to award payment for work allegedly done under contract or the Award – application dismissed

MIGRATION – Judicial Review – Protection visa – Whether the Tribunal failed to afford the applicant procedural fairness – Whether the tribunal unreasonably exercised its power by its failure to make necessary inquiries relevant to the issues in the review – Application dismissed

MIGRATION – Judicial review application – decision of Immigration Assessment Authority – whether Secretary of Minister’s department failed to comply with obligation to provide Immigration Assessment Authority with last email address provided by the applicant for the purposes of receiving documents – whether last email address provided by the applicant provided for the purposes of receiving documents - whether material jurisdictional error. PRACTICE AND PROCEDURE – Application for an extension of time in which to file a judicial review application and an amended judicial review application – factors for consideration – extension of time not opposed by the Minister. WORDS AND PHRASES – “for the purposes of receiving documents”

MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa (Class XE) (subclass 790) – whether the Authority mischaracterised the applicant’s claim – grounds of judicial review have no merit – consideration of country information – application dismissed with costs

MIGRATION – Immigration Assessment Authority - Safe Haven Enterprise (class XE) (Subclass 790) visa – whether the Authority made a jurisdictional error under s 473DC of the Migration Act 1958 (Cth) by not interviewing the applicant – no jurisdictional error made out – application dismissed

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence or an integer of the applicant’s claims – whether the Tribunal fell into the species of error considered in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 – application succeeds

MIGRATION – Immigration Assessment Authority – affirmed decision not to grant temporary protection (class XD) (subclass 785) visa – extension of time granted – consideration of country information – complaint that the Authority preferred some country information over other– whether the Authority is required to refer to each piece of information which is contrary to its findings – application for judicial review dismissed.

MIGRATION – Student (Class TU) (Subclass 500) visa – application for review of Registrar’s decision – practice and procedure - reinstatement - application for an extension of time to seek review – Rule 21.02(2) - no reasonable prospects of successfully prosecuting substantive application – application dismissed.

MIGRATION – Judicial Review – Subclass 457 Visa – Where applicant did not meet English language requirement – Tribunal had no discretion to waive requirement – No procedural unfairness – Where applicant conceded the Tribunal made no error– Application dismissed – Costs awarded

MIGRATION – application for judicial review of a decision by an officer of the Department – whether the applicant was effectively provided with the notice required under s 501CA(3) of the Migration Act 1958 (Cth) – whether the applicant made representations within the prescribed period – application succeeds

PRACTICE AND PROCEDURE – adjournment - respondent failed to appear at application for default judgment – respondent contacted chambers asserting medical incapacity and requesting adjournment for indeterminate period – no formal application for adjournment – applicant not met with substantive defence – longstanding proceedings – case management considerations - leave granted to proceed with default judgment application

INDUSTRIAL LAW – determination of orders that should be made to give effect to reasons for judgment – whether good cause has been shown for not awarding pre-judgment interest – final order made.

MIGRATION – judicial review – protection visa – when do credibility findings give rise to jurisdictional error – whether there was an evidential basis for the Tribunal’s finding from which it made adverse credit findings – no jurisdictional error disclosed – application dismissed

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA relevantly erred in finding that information was unable to be considered according to s 473DD of the Migration Act 1958 (Cth) – whether the IAA failed to consider material or made a decision affected by illogicality, irrationality or legal unreasonableness – application dismissed

MIGRATION – Application for judicial review – application to extend time for filing – where Applicant previously filed application for review in the Court – where previous application in the Court was dismissed – where Applicant seeks to re-litigate claims that should have been raised earlier – where delay in filing is extensive without sufficient explanation – application to extend the time for filing is refused – application dismissed.

MIGRATION – Persecution – Review of Administrative Appeals Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle.

MIGRATION – application for reinstatement of application for review of decision of registrar – where registrar dismissed judicial review application under r 13.13(a) – where review of decision by registrar dismissed by Court following non-attendance by applicant at hearing – whether judicial review application had reasonable prospect of success – application for reinstatement dismissed with costs

MIGRATION – Application to review decision of the delegate where the delegate refused to waive visa condition 8503 – whether delegate was in error by failing to take account of claims and evidence or acting unreasonably, or applying the wrong test as to whether circumstances were ‘compelling’– no error established – application dismissed.

MIGRATION – Student (Temporary) (Class TU) (subclass 500) visa – judicial review of a decision of the Administrative Appeals Tribunal – failure to consider – no jurisdictional error established – application dismissed.

MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether applicant satisfied public interest criterion 4020 – Tribunal not satisfied that compassionate or compelling circumstances justify grant of visa – no jurisdictional error established – application dismissed.

PRACTICE AND PROCEDURE – Adjournment application – adjournment refused.

MIGRATION – Cancellation of visitor (tourist) visa – Where visa holder on arrival in Australia stated an intention to seek political asylum – Where visitor visa was cancelled before visa holder cleared immigration – Whether the delegate misunderstood the legal consequences of the cancellation decision in the statutory framework – Where there was a departmental policy as to visa cancellation powers – Whether the delegate failed to assess the visa holder’s compelling need to travel to Australia or the delegate’s application of the policy was legally unreasonable – Whether the delegate notified the visa holder in writing of the grounds for cancelling the visa under s. 119 – Whether a decision was made to cancel the visa in contravention of s. 124 because the visa holder did not have an opportunity to respond to the notice of an intention to cancel the visa – Held that the delegate did not assess whether the visa holder had a compelling need to travel to Australia or the delegate’s reasons as to whether the visa holder had a compelling need to travel to Australia were unreasonable in the legal sense – Error material – Cancellation decision quashed

MIGRATION - Student (Temporary) (Class TU) (Subclass 500) visa – enrolment in courses of repetitious nature – whether genuine temporary entrant - no jurisdictional error - application dismissed.

MIGRATION – judicial review – protection visa – alleged failure to consider a claim – alleged misconstruction of the law – no jurisdictional error – application dismissed

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to apply an active intellectual process – whether the Tribunal failed to sufficiently explain its process of reasoning – jurisdictional error established – writs issued

MIGRATION – Protection (Class XA) visa – judicial review of a decision of the Administrative Appeals Tribunal – jurisdictional fact – requirement of state of satisfaction of jurisdictional fact – illogicality or irrationality in finding of jurisdictional fact – procedural fairness – no jurisdictional error established – application dismissed.

MIGRATION – review of Registrar’s decision – applicant sought orders seeking to reinstate his application for an extension of time to apply for judicial review – where Tribunal decided it had no jurisdiction to review the delegate’s decision because the application for review to the Tribunal was filed after the 28 day application period – whether grounds for judicial review of the Tribunal’s decision are arguable – no arguable grounds for judicial review disclosed and application dismissed

PRACTICE AND PROCEDURE – Affidavits – whether to allow filing of further affidavits – subpoenas – bias – application of Magna Carta – contempt of court – communications with Chambers – whether to issue order prohibiting communication with Chambers

INDUSTRIAL LAW – Application alleging contravention of general protection – alleged unlawful termination

PRACTICE AND PROCEDURE –Application to vacate final hearing to allow further time to retain new lawyer and obtain further evidence – whether applicant able to retain new lawyer for hearing – whether applicant has satisfactorily disclosed content of further evidence – whether applicant has provided satisfactory explanation in support of application – whether prejudice to respondent –  – application dismissed

HUMAN RIGHTS – Application for declarations and compensation for alleged sexual harassment – where the court was unable to make findings one way or the other that any pleaded conduct was unwelcome – where onus of proof not discharged by applicant – where application dismissed accordingly.

BANKRUPTCY – Creditor’s Petition for a sequestration order – whether requirements for sequestration order have been established – payment of legal fees which are disputed – whether the defendant is solvent – application for dismissal of Creditors Petition – Where the debtor is able to pay her debts but is unwilling to do so

MIGRATION – Employer Nomination (Class EN) (Subclass 186) visa – application for review of Registrar’s decision – application for an extension of time to seek review – Rule 21.02(2) - whether adequate explanation for delay – consideration of merits - no reasonable prospects of successfully prosecuting application – application dismissed.

 MIGRATION– judicial review – Partner visa refusal – no jurisdictional error established – application dismissed

 MIGRATION – application for judicial review of Administrative Appeals Tribunal decision – affirmation of decision to refuse grant of Partner (Temporary) (Class UK) visa – whether the Tribunal misapplied or misconstrued the definition of “spouse” – whether the Tribunal conflated the two limbs of s 5F(2)(d) of the Migration Act 1958 (Cth) – whether the Tribunal gave separate consideration to the question of whether the parties lived separately or apart on a permanent basis – whether the Tribunal afforded the applicant procedural fairness – whether the Tribunal complied with s 360 of the Migration Act – jurisdictional error established – writs issued – costs order made

MIGRATION – application for judicial review – decision of the Administrative Appeals Tribunal – Subclass 820 Partner (Temporary) (Class UK) visa – withdrawal of sponsorship – s 375A certificate – futility – no jurisdictional error established – application dismissed.

MIGRATION – review of a decision of the Administrative Appeals Tribunal (‘Tribunal’) – skilled independent visa – whether the Tribunal erred in its assessment of pt 6D.3 of sch 6D to the Migration Regulations 1994 (Cth) – jurisdictional error established.

INDUSTRIAL LAW – Where applicant failed to commence proceedings within 14 days of days of certificate issued by Fair Work Commission – whether time should be extended – where basis for delay said to be on medical grounds – where dispute as to veracity and content of medical certificate – extension of time refused

INDUSTRIAL LAW – assessment of a pecuniary penalty for contravention of s 716(5) of the Fair Work Act 2009 (Cth) – liability conceded – question of appropriate penalty to be imposed – penalty determined

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA failed to consider a claim made by the applicant (or evidence given) – whether the IAA erred in not identifying “new information” – whether the IAA’s decision was otherwise affected by relevant error – application succeeds

MIGRATION – judicial review – protection visas –Administrative Appeals Tribunal found the first applicant fabricated his protection visa claims and found that evidence of other applicants in the family unit said to be corroborative was unpersuasive – whether the Tribunal’s decision to place no weight on the corroborating evidence was irrational or illogical – whether Tribunal failed to raise an issue required to be raised in order to give the applicants a real and meaningful hearing as required by s 425 of the Migration Act 1958 (Cth) – no jurisdictional error disclosed – application dismissed

MIGRATION –  judicial review – protection visa – whether real and meaningful hearing – whether failure to consider a claim or an integer of a claim – whether material findings were legally unreasonable, illogical or irrational – jurisdictional error established in failing to consider a claim or integer of a claim because the Tribunal failed to consider evidence that was important to the Tribunal’s decision-making process in considering the claim or an integer of the claim – writ of certiorari issued – writ of mandamus issued to Tribunal requiring it to determine the application for review according to law

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal’s decision is “lacking substance” – whether the Tribunal failed to address the applicant’s claims and evidence – whether the Tribunal failed to afford the applicant procedural fairness or failed to comply with the natural justice hearing rule – whether the Tribunal failed to put adverse information to the applicant pursuant to s 424A of the Migration Act 1958 (Cth) – whether the Tribunal erred in its assessment of relevant country information – whether the Tribunal’s decision was “illogical, irrational or unreasonable” – no jurisdictional error – application dismissed.

MIGRATION  – application for interlocutory injunction to restrain the Minister from removing the applicant from Australia – prima facie case not established – balance of convenience not in favour of Applicant – Application dismissed with costs

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – consideration of the genuine temporary entrant criterion – whether Tribunal failed to take into account all relevant considerations and evidence – whether Tribunal made a jurisdictional error by referring to the wrong visa subclass – whether failure to afford natural justice – no jurisdictional error established – application dismissed

MIGRATION – Persecution – Review of Administrative Appeals Tribunal (“Tribunal”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal had engaged in legally unreasonable reasoning and had failed to properly and genuinely consider the allegation and evidence – whether   s 109 of the Migration Act 1958 (Cth) required a decision maker not to make intermediate findings and to make only one comprehensive finding.