Judgments

MIGRATION –  medical (subclass 602) visa – visa refused – breach of clause 602.2 of Schedule 2 to the Migration Regulations 1994 (Cth) – judicial review – 
applications for judicial review must be made by applicants within 35 days of the date of the Tribunal’s decision – applicant filed application for judicial review 35 days after time elapsed – very weak prospects of success of the substantive application – not satisfied it is necessary in the administration of justice to grant an extension of time – application for extension of time dismissed.

MIGRATION – extension of time application – applicant filed 2 days out of time – Temporary Work (Skilled) (Subclass 457) visa– where Tribunal affirmed decision of the first respondent to cancel visa – where applicant has ceased employment for more than 60 days in breach of condition 8107(3)(b) of Schedule 8 of the Migration Regulations 1994 (Cth) – whether the Tribunal failed to consider the hardship and personal circumstances of the applicant – found grounds of substantive argument are not reasonably arguable – application dismissed.

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.

INDUSTRIAL LAW – Fair Work – failure to comply with compliance notice – application for penalty orders and relief directed at performance of steps required under the compliance notice  – where respondents did not file affidavit or submissions and engaged haphazardly in the proceeding – where first respondent continues to trade and remains registered – where steps required under compliance notice still unperformed at time of penalty hearing – whether payment of a fixed amount identified as underpayment is a step required under the compliance notice – whether contingent underpayment is a relevant loss for the assessment of penalty or the making of compensatory orders under s 545(1) of the Fair Work Act 2009 (Cth) – penalty orders made

HUMAN RIGHTS – Sex Discrimination Act 1984 (Cth) – sexual harassment – sex discrimination – where applicant was an employee of the second respondent – where applicant and first respondent engaged in a consensual and non-exclusive sexual relationship – where first respondent was principal of second respondent – whether the first respondent sexually harassed the applicant – whether applicant’s employment with second respondent was terminated on the basis of her pregnancy

MIGRATION – Judicial review application – decision of the Immigration Assessment Authority – refusal to grant Safe Haven Enterprise visa – citizen of Vietnam of the Catholic faith – claims of persecution on the basis of religion, Australian Government data breach and asylum seeker status – single unparticularised ground of review –whether unreasonableness – whether interpreter error – whether jurisdictional error otherwise – whether jurisdictional error

MIGRATION – whether Court should grant orders not to adduce information under claim of public interest immunity – whether Court should grant orders not to adduce third party information not relevant to the proceedings – orders granted

MIGRATION – application for judicial review of decision of the former Immigration Assessment Authority -  where Authority rejected claim based on the failure of the applicant to raise the claim in a series of interviews, including a screening interview and an arrival interview – whether it was unreasonable for the Authority to have recorded adverse finding without first exercising the power under s 473DC of the Migration Act 1958 (Cth) to get information from the applicant –  whether case can be distinguished from Minister for Home Affairs v AYJ17- no jurisdictional error  – application dismissed with costs

INDUSTRIAL LAW – Practice and Procedure – determination of notices of objection to categories of documents called by subpoenas the applicant caused to be issued

CONSUMER LAW – alleged unconscionable conduct by real estate property manager – conduct alleged not established – finding that conduct was professional and businesslike – application dismissed

BANKRUPTCY – application for review of Registrar’s decision to dismiss application for sequestration order – de novo hearing of creditor’s petition – whether creditors petition claims debt which exceeds statutory minimum – where criteria for issue of bankruptcy notice requires judgment or orders having been obtained against debtor for greater than statutory minimum – where criteria for creditor’s petition requires outstanding debt in excess of statutory minimum – criteria in ss 41 and 44 of Bankruptcy Act 1996 (Cth) discussed – where creditor’s petition does not have to rely on same debt as bankruptcy notice - where additional debts incurred prior to act of bankruptcy can be included creditor’s petition – conditions for making sequestration order satisfied

PRACTICE AND PROCEDURE -where a statement of claim was not filed in accordance with orders of the Court – proceedings to be dismissed in their entirety - costs in the matter not sought.

PRACTICE & PROCEDURE – Where respondent had previously failed to comply with Orders of the Court – where trial dates adjourned on two previous occasions – where respondent failed to appear on the first day of the third adjourned trial hearing within 44 minutes of the time listed for commencement of the trial – where the respondent had failed to defend the proceeding with diligence – where summary judgment entered accordingly.

MIGRATION -Administrative Appeal Tribunal – decision to affirm refusal of protection visa (class XA) (subclass 866) – protection claim on the basis of homosexual relationship – impermissible merits review - application dismissed.  

MIGRATION – Administrative Appeals Tribunal Permanent Protection (class XA) (subclass 866) visa) - grounds of judicial review invite the Court to engage in impermissible merits review – no jurisdictional error established – application dismissed.  

MIGRATION – Administrative Appeals Tribunal – affirmed refusal of protection visa (class XA) (subclass 866) – whether risk and fear of significant harm under s 36(2A) misconstrued – whether clear particulars of information given to applicant under s 424A read with s 424AA – application dismissed. 

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA unreasonably failed to exercise, or consider exercising, power under s 473DC of the Migration Act 1958 (Cth) – whether the IAA’s reasoning was otherwise open on the material before it – application succeeds

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

BANKRUPTCY AND INSOLVENCY – letter of request to foreign court exercising jurisdiction in bankruptcy to act in aid of and be auxiliary to the Federal Circuit and Family Court of Australia – directions made for assistance of foreign court. 

PRACTICE AND PROCEDURE – Application for leave to institute proceedings following vexatious litigant orders - – proposed proceedings dismissed  

MIGRATION – application for judicial review – student visa – review of a decision of the Administrative Appeals Tribunal (Tribunal) – whether the Tribunal failed to consider relevant material – whether the Tribunal failed to give the material proper weight – no jurisdictional error found – application dismissed

MIGRATION – Judicial Review – Student Visa – GTE Criteria – Where the Tribunal considered that the applicant’s knowledge that relatives obtained citizenship after holding a temporary visa was not an irrelevant consideration having regard to the subject matter, scope, and purpose of cl 500.212(a) and Direction No. 69 – Application dismissed.   

INDUSTRIAL LAW – Fair Work – application for default judgment pursuant to rule 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – applicant seeking declaration of contravention of the Fair Work Act 2009 (Cth) by reason of failure of first respondent to comply with compliance notice – applicant seeking declaration that second respondent involved in the contravention and liable as an accessory – acts of default established – statement of claim establishes basis for declarations – where applicant seeks orders that would require first respondent to make payment to employee of specified amount identified as underpayment – where question of relief to be addressed at hearing on penalty 

MIGRATION -  review of Administrative Appeals Tribunal decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed 

MIGRATION – Student visa – genuine temporary entrant criterion – whether the Tribunal failed to engage with the evidence – whether the finding that the applicant did not have strong ties to her home country on the basis of a lack of employment prospects and the applicant’s economic circumstances was illogical – whether finding that the applicant’s courses of study lacked value to her future was illogical – application dismissed

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal made illogical or unreasonable findings based on unwarranted assumptions – no jurisdictional error – application dismissed. 

MIGRATION – Medical Treatment (Visitor) (Class UB) subclass 602 visa – decision of the Administrative Review 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 – application dismissed with costs  

MIGRATION – Regional Employer Nomination visa – decision of the 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 – student (subclass 500) visa – visa refused – breach of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) – decision of the Administrative Appeals Tribunal to affirm delegate’s decision – judicial review – whether Tribunal denied the applicant procedural fairness – whether Tribunal failed to consider relevant facts – whether Tribunal applied the wrong legal test –Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed

MIGRATION – application for reinstatement – where the applicant failed to appear at hearing – where there was no reasonable excuse for the non-appearance – where the Court’s discretion to reinstate the case is not enlivened – application for reinstatement refused – application for review of Administrative Appeals Tribunal dismissed 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal – student (Class TU) (Subclass 500) visa – cl 500.212 – whether applicant satisfied genuine temporary entrant criterion – whether Tribunal overlooked matter in manner which involved jurisdictional error – no jurisdictional error established – application dismissed 

MIGRATION – adjournment request refused – where medical evidence in support of adjournment request unsatisfactory – dismissal for non-appearance – costs ordered 

MIGRATION – Judicial review application - decision of the Immigration Assessment Authority – citizen of Vietnam of the Catholic faith – claims of persecution on the basis of religion, Australian Government data breach and asylum seeker status – single unparticularised ground of review – whether jurisdictional error otherwise – whether material jurisdictional error. PRACTICE AND PROCEDURE – Application for adjournment – whether right to legal representation – other factors – length of time in the Court’s lists – further delay before hearing – backlog of unheard cases – length of time in which legal representation might have been obtained – where proper explanation of processes and nature of proceedings provided at earlier directions hearing.

MIGRATION – application for protection visa – review of the decision of the Administrative Appeals Tribunal – whether the Tribunal properly considered the Applicant’s claim to fear harm on account of her status as a single woman – whether the Tribunal properly considered the Applicant’s claim to fear harm on account of her status as single mother – no jurisdictional error established – application for review dismissed.  

MIGRATION – Judicial review application – decision of Administrative Appeals Tribunal – citizen of Vietnam - refusal of Partner (Temporary) (Class UK) visa – whether consideration given to joint responsibility for the care and support of the children – whether new evidence able to be put before Court – whether existence of unborn child relevant to nature of persons’ commitment to each other and to whether relationship a long term one – whether Tribunal required to consider best interests of the child – whether Tribunal required to have regard to requirements in international convention concerning the best interests of the child – whether case concerning international convention put before the Tribunal – whether international convention obligations enacted in domestic law – whether proposed new evidence indicative of fraud on the Tribunal – whether fraud on the Tribunal – whether jurisdictional error otherwise - whether material jurisdictional error – writs issued.

BANKRUPTCY – application for review of Registrar’s decision to dismiss substantive application by self-executing order – where applicant did not wholly meet filing deadlines imposed by Registrar’s procedural orders –order dismissing the proceedings be set aside.  

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision not to grant the applicant a protection visa – where the applicant’s grounds are directed to the merits of the Tribunal decision – no jurisdictional error – application dismissed. 

MIGRATION – Student (Subclass 500) visa – decision of Administrative Appeals Tribunal – where delegate determined that applicant was not a genuine temporary entrant – where applicant not enrolled in a course of study at the time of Tribunal decision – where Tribunal found the applicant did not satisfy the primary criterion pursuant to cl 500.211 – no jurisdictional error – application dismissed 

MIGRATION – costs – where application for judicial review was dismissed – where the Minister sought costs – where the applicants contested Minister’s proposed costs on the basis of their impecuniosity and that they were unaware they would be liable for costs in the event that the application was dismissed

CONSUMER LAW – Application for order under s. 101 of the National Credit Code – Where Vehicle under chattel mortgage was used for business purposes – Matter arises in relation to the Personal Property Securities Act 2009 – No appearance from Respondent – Declaration that Applicant entitled to take possession of the vehicle – Declaration that Applicant may enter premises and seize vehicle 

INDUSTRIAL LAW – Application for leave under r. 9.04 for corporation to carry on proceeding otherwise than by a lawyer – Where director of corporation proposes to carry on a proceeding for corporation – Effectiveness of representation – Financial position of the corporation – Leave to carry on a proceeding otherwise than by a lawyer not granted 

MIGRATION – student visa – decision of the Administrative Appeals Tribunal – whether the applicant could satisfy requirements in condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) – consideration of whether the Tribunal erred in its decision to proceed under s 362B(1A)(a) of the Migration Act 1958 (Cth) –consideration of DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 – no jurisdictional error  – application dismissed with costs  

MIGRATION – judicial review – jurisdictional error –illogicality or irrationality – failure to consider relevant consideration – misapplying paragraph 12(c) of Direction 69 – failed to comply with s 360 of the Migration Act 1958 (Cth)  – sch 2, cl 500.212 Migration Regulations 1994 (Cth) – genuine temporary entrant criterion – student visa –Direction 69 required personal ties to be considered in reaching a state of satisfaction in assessing the genuine temporary entrant criteria – jurisdictional error established on illogical or irrational ground

MIGRATION – protection visa – non-appearance by or on behalf of the application – application dismissed.

MIGRATION – practice and procedure – judicial review of decision of Administrative Appeals Tribunal refusing grant of Business Skills visa – separate application in Federal Court seeking relief under s 39B of the Judiciary Act – where applications in relation to same Tribunal decision – where applications relate to different exercises of power – application for transfer of judicial review proceeding to Federal Court – mandatory consideration of matters relevant to the transfer – whether transfer in the interests of the administration of justice – application for transfer granted 

MIGRATION – protection visa – application for judicial review - non-appearance by or on behalf of the applicant - application dismissed.  

MIGRATION – protection visa – application for extension of time to review decision of AAT–whether proper explanation of delay - consideration of the interest of the administration of justice –decision-maker’s duty to make inquiries – procedural fairness – application for extension of time dismissed

MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise visa – consideration of whether the Authority made a reasonable finding in respect of relocation within Pakistan – consideration of the applicant’s claims as made to the Authority and the material before it – findings by the Authority open to be made – no jurisdictional error – application dismissed