Judgments

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.

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.

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

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

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 – 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

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

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

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 – 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 – 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.

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

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

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.

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.

MIGRATION – review of a decision of the Administrative Appeals Tribunal (‘Tribunal’) – protection visa – whether the Tribunal failed to consider relevant evidence provided in the visa application form – application dismissed.

MIGRATION – Protection visa – application for judicial review - summary dismissal - review of Registrar’s decision - extension of time - consideration of merits – no reasonable prospects of success - application dismissed.

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – judicial review of a decision of the Administrative Appeals Tribunal – failure to consider – error of law – no jurisdictional error established – application dismissed.

MIGRATION –  judicial review – decision of Administrative Appeals Tribunal – Student (Temporary) (Class TU) (Subclass 500) visa – whether applicant satisfied genuine temporary entrant criterion in cl 500.212 of Schedule 2 – no jurisdictional error established – application dismissed – costs ordered

MIGRATION – protection visa – review of a decision of the Administrative Appeals Tribunal – application dismissed.

MIGRATION – review of a decision of the Administrative Appeals Tribunal (‘Tribunal’) – protection visa – criticisms of the Tribunal’s fact-finding process – whether the Tribunal was required to provide the Country Information Report to the applicant for comment – where the applicant alleged poor quality of the audio in the Tribunal’s remote hearing – no jurisdictional error established – application dismissed.

MIGRATION – Where the applicant made new claims in a hearing before the Tribunal in circumstances where those claims had not been raised before the delegate as the primary decision maker – where the Tribunal well appreciated that before it made an unfavourable finding as to the applicant’s credibility under s.423A of the Migration Act, it had to first be satisfied that the applicant had not provided a reasonable explanation for the omission to make the claim before the delegate – where unfavourable credibility finding made – where no error established - application dismissed.

MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizen of Pakistan – whether Authority asked the wrong question – whether Authority failed to complete statutory task – whether risk of harm in reasonably foreseeable future considered – whether failure to consider claim that security situation in home area might decline – whether material jurisdictional error – writs issued.

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

FAMILY LAW – PARENTING – where the Mother failed to file material or attend the final hearing – where the Mother has repeatedly failed to return the child to the Father pursuant to Orders, encouraged her to abscond from the Father, and arranged for her abduction from school – where police have repeatedly executed Recovery Orders to return the child to her Father – where it remains in the child’s best interests to remain living with the Father despite her expressed views

MIGRATION – protection visa – judicial review of decision of Immigration Assessment authority not to grant visa – whether applicant denied procedural fairness – scope of Part 7AA fast-track review considered – whether Authority should have accepted new information – whether applicants claims for protection properly considered – where applicant seeks impermissible merits review – no error established

MIGRATION – Where the applicant made new claims in a hearing before the Tribunal in circumstances where those claims had not been raised before the delegate as the primary decision maker – where the Tribunal well appreciated that before it made an unfavourable finding as to the applicant’s credibility under s.423A of the Migration Act, it had to first be satisfied that the applicant had not provided a reasonable explanation for the omission to make the claim before the delegate – where unfavourable credibility finding made – where no error established - application dismissed.

MIGRATION – judicial review – Medical Treatment visa – whether Tribunal erred in finding that arrangements have not been concluded to carry out the treatment – whether Tribunal erred in finding that applicant not a support person – no jurisdictional error established – application dismissed.

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal considered irrelevant information – whether the Tribunal’s decision was affected by bias – whether there was “no evidence” to support the Tribunal’s findings – whether the Tribunal’s decision was “illogical” – no jurisdictional error – application dismissed.

MIGRATION – judicial review of a decision of the Administrative Appeals Tribunal (‘Tribunal’) – student visa – whether the Tribunal erred in its interpretation of cl 500.212 of sch 2 to the Migration Regulations 1994 (Cth) – adequacy of the Tribunal hearing – application dismissed.

MIGRATION – Review of determination that application for Bridging visa was invalid by reason of the bar in s 91K of the Migration Act – whether applicant was “detained” at time Minister made decision to grant him a temporary safe haven visa under s 195A(2) of the Migration Act such that s 91K applied

MIGRATION – judicial review – Medical Treatment visa – whether Tribunal erred in finding that arrangements have not been concluded to carry out the treatment – fresh evidence – no jurisdictional error established – application dismissed.

MIGRATION – Protection visa – decision of the then Administrative Appeals Tribunal – whether the inclusion of a non-operational email address in the delegate’s notification letter rendered the notification letter defective – whether the Tribunal was correct in determining that it did not have jurisdiction – whether the Tribunal’s decision was unreasonable – whether the Tribunal failed to take into account relevant considerations or took into account irrelevant considerations – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error – application dismissed

MIGRATION – Student (Temporary) (Class TU) (Subclass 500) Higher Education Sector visa - application for judicial review – adjournment - costs.

MIGRATION - Administrative Appeals Tribunal - Student (Temporary) (class TU) (subclass 500) visas refused – whether the Tribunal committed jurisdictional error by failing to take into account relevant considerations – whether the Tribunal misconstrued or misapplied genuine temporary entry criteria pursuant to cl 500.212 – no jurisdictional error occurred – application dismissed.

MIGRATION – Student visa cancellation – 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).

PRACTICE AND PROCEDURE – where the applicant failed to appear at a listing before the Court relating to his judicial review application – application dismissed 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 – Student (subclass 573) visa – decision of the (then) Administrative Appeals Tribunal – no appearance by or on behalf of the applicant – oral application to dismiss pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – application dismissed with costs

INDUSTRIAL LAW – Fair Work – failure to comply with compliance notice – where default judgment entered – application for pecuniary penalties against employer and manager – penalties ordered

INDUSTRIAL LAW – application for declarations and orders due to failure to cleave to compliance notice and in failing to make payment in full for the performance of work  – application to proceed undefended – default by first and second respondents – orders on default by respondents

MIGRATION – Injunctive Relief – Urgent applicant - where applicant’s student visa cancelled at Australian border – where Minister sought to remove applicant imminently – where applicant’s proposed grounds of judicial review lack sufficient merit – where applicant can pursue judicial review application offshore – application for injunction dismissed

MIGRATION – Partner visa – decision of the Administrative Appeals Tribunal – whether the Tribunal decision was affected by apprehended bias – whether the Tribunal relied on findings in a previous decision – whether the Tribunal failed to consider evidence – whether the Tribunal failed to apply an active intellectual process –jurisdictional error established – writs issued