Judgments

MIGRATION – Application for reinstatement – Student visa –  Where Applicant’s judicial review application was dismissed for non-attendance – Where Applicant did not provide adequate explanation for non-attendance – Whether it is in the interests of justice to reinstate the application – Where the proposed grounds of the substantive review    application not reasonably arguable – Application for reinstatement dismissed

 MIGRATION – Administrative Appeals Tribunal – Student visa (class TU) (subclass 500) refusal – whether reasonable apprehension of bias exists – application upheld.

INDUSTRIAL LAW – Practice and procedure – application for default judgment on causes of action alleging contraventions of s 716(5) and s 536(1) of the Fair Work Act 2009 (Cth) (FW Act) – default judgment granted – orders made having the effect of requiring the respondent to comply with a compliance notice that had been issued pursuant to s 716(2) of the FW Act – assessment of pecuniary penalties for the respondent’s contraventions of s 716(5) and s 536(1) of the FW Act.

INDUSTRIAL LAW – Application in a proceeding for default judgment pursuant to r 13.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – failure to comply with Court orders – failure to file Notices of Address for Service – failure to file documents – cumulative failure to defend proceedings with due diligence

INDUSTRIAL LAW – Assessment of pecuniary penalties for contraventions of s 45 and s 44 of the Fair Work Act 2009 (Cth).

PRACTICE AND PROCEDURE – Application for leave to amend a statement of claim – application granted.

MIGRATION – extension of time application – protection visa- oral adjournment application refused- insufficient merits on impressionistic basic to warrant extension of time- extension of time application dismissed

MIGRATION – Skilled Nominated (Permanent) (class SN) (Subclass 190) visa – decision of the Administrative Appeals Tribunal – unreasonableness – requirements of Public Interest Criterion 4020 – bogus document – false or misleading information – compelling and compassionate circumstance – no jurisdictional error established – application dismissed.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal – student visa – whether open to Tribunal to affirm delegate’s decision on different basis to delegate – whether denial of procedural fairness – whether Tribunal’s refusal to grant adjournment was unreasonable – whether Tribunal failed to have regard to matters

MIGRATION – application for judicial review of a decision made by the Immigration Assessment Authority – where the Authority failed to consider new information against the requirements of s 473DD of the Migration Act 1958 (Cth) – whether that failure was material – whether the Authority asked itself the wrong question in deciding not to exercise its discretion in s 473DC of the Migration Act to get new information from the applicant at an interview – whether the Authority unreasonably failed to exercise, or considering exercising, its discretion in s 473DC of the Migration Act to get new information from the applicant – whether the Authority made a finding that was illogical or irrational – jurisdictional error established – writs issued.

MIGRATION – application for an extension of time to seek judicial review of a decision of the Administrative Appeals Tribunal – extensive delay only partially explained – no specific prejudice to respondent – merits of proposed application not sufficiently strong to justify extensive delay – application for an extension of time dismissed.

MIGRATION – dismissal for non-appearance

MIGRATION – Application for reinstatement of an application for extension of time – where applicant also proposes to seek leave to amend substantive grounds of review if application reinstated – where original substantive grounds lack reasonable prospect of success but proposed amended grounds do not – practical considerations and overarching purpose – proceedings reinstated on terms, with self-executing orders in event amendment not made

MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) - protection visa – applicant unrepresented - whether the Tribunal misconstrued the definition of significant harm – whether the Tribunal failed to consider the applicant’s claims against the “Convention definition” – no jurisdictional error established – application dismissed.

MIGRATION –bridging E (class WE) bridging E general, subclass 050 visa cancellation – application seeking constitutional writ of Ministers decision – no jurisdictional error - application dismissed

PRACTICE AND PROCEDURE – application for substituted service – consideration of whether orders for substituted service ought be made– orders made for substituted service.

PRACTICE AND PROCEDURE – application for substituted service – consideration of whether orders for substituted service ought be made– orders made for substituted service

MIGRATION – dismissal for non-appearance

MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal affirming a decision refusing to grant the applicant a protection visa – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error – application dismissed.

MIGRATION – protection visa - application for extension of time to seek judicial review of Administrative Appeals Tribunal (Tribunal) decision – minimal delay - no prejudice to the Minister – limited arguable case of jurisdictional error - application for extension of time refused

MIGRATION – student visa – whether the Tribunal failed to comply with s 360 of the Migration Act 1958 (Cth) – whether the issue was apparent from its nature or from the terms of the statute under which it was made – whether the applicant was on notice that enrolment in a registered course of study may be a dispositive issue – materiality – jurisdictional error established – application succeeds

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal affirming delegate’s decision not to grant a visa – protection claim relating to loan sharks – adverse credibility findings – no jurisdictional error – application dismissed

 MIGRATION – Immigration Assessment Authority - whether the Authority committed jurisdictional error by failing to lawfully consider essential evidence – whether the Authority denied the applicant natural justice and procedural fairness – whether the Authority failed to consider part of a claim – whether the decision was affected by legal unreasonableness – application dismissed.

MIGRATION – Application for judicial review and extension of time – protection visa – prospects of success - whether acceptable reason for delay - whether interpretation deficiencies constituted reviewable error – onus of proof – allegation of third-party conduct - whether in the interests of administration of justice to extend time- application dismissed.

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – extension of time application – lengthy delay – inadequate explanation – no prejudice – no arguable case of jurisdictional error – extension of time refused.

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – jurisdictional error identified by the Minister – Minister had been unable to obtain the applicant’s consent to remit matter – Court satisfied the Tribunal erred – writs issued.

MIGRATION – protection visa – judicial review of a decision of the Immigration Assessment Authority - whether the Authority exercised the power in s 473DD of the Migration Act 1958 (Cth) unreasonably when it focused on a particular aspect of a medical report – whether it was unreasonable for the Authority not to exercise its power under s 473DC(3) of the Act by not obtaining new information concerning the applicant’s ongoing psychological vulnerability  – whether the Authority unreasonably failed to consider a claim – no jurisdictional error – application dismissed with costs

 MIGRATION – judicial review – decision of Administrative Appeals Tribunal – student (Temporary) (Class TU) visa – obligation to invite applicant to present arguments relating to issues arising in review – extent of obligation whether Tribunal failed to give notice of issue – whether denial of procedural fairness - no jurisdictional error established – application dismissed

MIGRATION – Protection visa – decision of the then 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 rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

MIGRATION – Immigration Assessment Authority – whether the Authority committed jurisdictional error by illogical reasoning – whether finding new information under 473DC did not satisfy s 473DBB(b)(ii) is illogical – application dismissed.

MIGRATION - Administrative Appeals Tribunal - Protection (Class XA) visa – country information – where the conclusion reached by the Tribunal was illogical or irrational – rejection of the applicant’s claim relied upon a personal assumption, speculation or unarticulated basis - jurisdictional error established - material error - application allowed.

MIGRATION – Extension of time application Judicial Review – Decision of the Administrative Appeals Tribunal – Protection Visa – Dismissal for non-appearance – No explanation for non-appearance.  PRACTICE AND PROCEDURE – Dismissal for non-appearance

MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – whether the IAA’s decision was illogical, irrational or legally unreasonable in light of the material before it – jurisdictional error established – writs issued.

 MIGRATION – Administrative Appeals Tribunal - Protection (class XA) (subclass 866) visa – Tribunal reference to country information – whether the Tribunal overlooked a psychological report – Court satisfied the Tribunal considered claims and reports – requirements of s 424A not enlivened – jurisdictional error not established – application dismissed.

MIGRATION – Skilled Nominated (Permanent) (class SN) (Subclass 190) visa – decision of the Administrative Appeals Tribunal – unreasonableness – requirements of Public Interest Criterion 4020 – bogus document – false or misleading information – compelling and compassionate circumstance – no jurisdictional error established – application dismissed.

PRACTICE AND PROCEDURE – Application to release monies paid into the Court for security – Late filing of a notice of objection to estimate of costs – Instanter application for an extension of time within which to file the notice of objection – Whether the Court had jurisdiction to hear the matter – Whether the registrar had power to order costs

MIGRATION – Medical treatment visa – where applicant alleges failure by Tribunal to allow time to provide additional medical evidence and failure to consider evidence of doctor which was provided – allegation of denial of procedural fairness

MIGRATION – Administrative law – judicial review – contention that the Tribunal failed to properly construe PIC 4020 and make an express finding that in relation to the incorrect information there was “an element of fraud or deception” –  whether the “no evidence” terminology in PIC 4020(1) applies to both the question of whether the applicant has given or caused to be given the relevant impugned information, as well as to whether the information is false or misleading in a material particular - application dismissed

MIGRATION – Judicial review – application for an extension of time – applicant sought review of delegate’s decision which had previously been the subject of review by the Tribunal -dismissal for non-appearance

ADMINISTRATIVE LAW – application for orders of review under the Administrative Decisions (Judicial review) Act 1977 (Cth) - where the International Bureau of the World Intellectual Property Organisation notified the Registrar of Trade Marks (Registrar) of a request (IRDA) that protection resulting from the international registration of the applicant’s trade mark under the Protocol Relating to the Madrid Agreement concerning the International Registration of Marks, as signed at Madrid on 28 June 1989, be extended to Australia – where on 23 February 2023 a delegate of the Registrar accepted the IRDA pursuant to reg 17A.24 of the Trade Marks Regulations 1995 (Cth) (Regulations) – where in April 2023 the owner (Opponent) of three trade marks registered under the Trade Marks Act 1995 (Cth) (Act) filed a notice of opposition in relation to the IRDA – where in February 2024 the Opponent requested the Registrar to exercise the power conferred by reg 17A.27 to revoke the acceptance of the IRDA - where on 4 March 2024 a delegate of the Registrar notified the applicant of an intention to revoke the acceptance of the IRDA – where on 4 May 2024 the applicant provided submissions in support of the contention that it was not reasonable in all of the circumstances for the Registrar to revoke the acceptance of the IRDA – where on 7 May 2024 a delegate of the Registrar notified the applicant that given there is an opposition process underway  revocation of the acceptance of the IRDA would not be reasonable (May 7 position) – where on 3 June 2024 a delegate of the Register notified the applicant that the acceptance of the IRDA must be cancelled and was cancelled purportedly pursuant to reg 17A.27 of the Regulations – whether Registrar owed a duty of procedural fairness to the applicant – whether any such duty of procedural fairness extended to giving the applicant notice that the Registrar intended to renounce the May 7 position and that it would not be reasonable to revoke the acceptance of the IRDA and instead determine that it was reasonable in al of the circumstances to revoke the acceptance of the IRDA – whether the Registrar’s purported exercise of the power under reg 17A.27 to revoke the cancellation of the IRDA resulted from an improper exercise of power or error of law – the Registrar afforded the applicant procedural fairness in relation to the decision to revoke the acceptance of the IRDA, the discharge of the duty to afford procedural fairness not requiring the Registrar to give notice that the Registrar intended to renounce the 7 May position – the decision to revoke acceptance of the IRDA did not result from any improper exercise of power or from an error of law – whether assuming the applicant established any of the grounds for review relief should be withheld on the ground that Parliament manifested an intention that any challenges in relation to the exercise of powers in connection with an IRDA be restricted to the decision that results in a trade mark that is the subject of an IRDA being given protection in Australia – discretion to grant orders should be withheld – application dismissed

MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – matter listed for a final hearing by video link – 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 – Administrative Appeals Tribunal – Protection (class XA) (subclass 866) visa - claim of bias – Tribunal findings based on evidence before it – whether the applicant would be subject to double jeopardy if returned to the receiving country – no merit – no jurisdictional error established – application dismissed.

MIGRATION – Immigration Assessment Authority - Safe Haven Enterprise Visa – whether it was open to the Authority to make findings in respect of s 91WA – Authority provided logical and rational basis for its findings – capacity of the Authority to make findings that differ from the delegate - no merit – application dismissed.

MIGRATION – Regional Employer nomination visa – decision of the Administrative Appeals Tribunal – where no approved nomination – failure to consider relevant information – whether appropriate to conduct hearing by telephone – no jurisdictional error established – application dismissed – application for Ministerial intervention encouraged

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal (as it was) – whether the Tribunal misapplied the criteria in issue – whether the Tribunal failed to comply with s 359A of the Migration Act 1958 (Cth) – whether the Tribunal failed to consider evidence – application dismissed

INDUSTRIAL LAW – where applicant employee had been a long serving employee of respondent employer in the role of “Emergency Customer Service Operator” (ECSO) – where for almost two years employer considered employee was underperforming and had placed the employee under performance management plans and had issued letters of warning – where employer suspended the employee from her work without paying wages on the basis of what employer understood medical reports to have conveyed about the employee’s capacity to perform the roles of an ECSO – whether by not paying the employee wages while employee was suspended the employer contravened provisions of the enterprise bargaining agreement that applied to the employment – whether by suspending the employee without paying wages the employer breached the contract of employment or unlawfully discriminated against the employee on the grounds of her disability – whether as a consequence of the employer’s suspension of the employee the employee suffered psychiatric injury – by suspending employee without pay the employer repudiated the employment contract but did not discriminate or unlawfully discriminate against the employee – by reasons of the breach of the employment contract the employee suffered psychiatric injury which incapacitated her from being able to work – damages for breach of contract awarded.

MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – matter listed for a final hearing by video link– 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 – judicial review of Administrative Appeals Tribunal decision – dismissal for non-appearance – costs ordered

MIGRATION – application for judicial review – Safe Haven Enterprise (Subclass 790) visa – where Immigration Assessment Authority affirmed decision of first respondent that applicant is not a person in respect of whom Australia has protection obligations – whether it was unreasonable for the Authority not to exercise the power in s 473DC of the Migration Act 1958 (Cth) – whether the Authority failed to assess “new information” against the criteria provided for in s 473DD -  found the information provided by the applicant was not “new information” – found the Authority had regard to certain evidence provided by the applicant – whether finding’s made by the Authority were irrational or illogical - found that there was a proper and logical basis for the Authority’s findings – found no jurisdictional error – application dismissed.

MIGRATION - application for judicial review and extension of time - protection visa - false information in application - substantial delay - application dismissed.