Judgments

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 - Administrative Appeals Tribunal (AAT) – Higher Education Sector (subclass 573) visa – visa cancellation due to breach of condition 8202(2)(a) – whether the AAT heard and considered the applicant’s evidence – application dismissed. 

MIGRATION - Temporary Protection (class XD) (subclass 785) visa - whether there was evidence before the Tribunal to support their findings – no jurisdictional error made out – application dismissed. 

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

MIGRATION – Student (Temporary) (Class TU) visa – Administrative Appeals Tribunal – judicial review –jurisdictional error – procedural fairness - failure to take into account relevant considerations – no jurisdictional error – application dismissed  

MIGRATION – Student (Temporary) (Class TU) visa – Administrative Appeals Tribunal – judicial review – jurisdictional error – failure to take into account relevant considerations – no jurisdictional error – application dismissed. 

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – where the applicant asserts that the Minister’s delegate did not refuse to grant her a protection visa – whether the delegate made a decision in fact refusing to grant a protection visa – whether the Authority had jurisdiction to conduct the review or to deny the applicant a protection visa – whether the Authority ought to have exercised its statutory powers to seek clarification from the delegate about the intended decision – whether the Authority acted unreasonably in the assessment of the applicant’s claims for protection – no jurisdictional error – application dismissed.    

MIGRATION – Judicial review application – decision of the Immigration Assessment Authority – citizens of Sri Lanka of Tamil ethnicity – claims of persecution on basis of ethnicity, imputed political opinion as Liberation Tigers of Tamil Eelam supporters and failed asylum seeker status – single unparticularised ground of review – further matters raised at hearing – where allegations of bribery at airport on departure from Sri Lanka – whether bribery allegations subsumed in findings of greater generality – criticism of country information relied upon – whether choice of country information a matter for the Authority –whether evidence of views of Refugee Council of Australia –whether claims made in relation to refugee resettlement in France – whether accepted as refugees by UNHCR – whether determinations by foreign country or non-governmental organisations determinative or mandatory relevant consideration – whether children born in or living in Australia basis for finding of jurisdictional error – whether Court required to verify documents concerning an applicant’s arrest in Sri Lanka – whether allegations of uncle paying a bribe to obtain one applicant’s  release from arrest and subsequent abduction of uncle  considered by Authority – whether allegation of sexual assault or harassment whilst under arrest in Sri Lanka new information – whether discrete basis for finding in relation to no harm on return to Sri Lanka – whether jurisdictional error otherwise – whether material jurisdictional error

MIGRATION – Proposed application for review of Registrar’s decision dismissing application for judicial review of migration decision for non-appearance. PRACTICE AND PROCEDURE – Application for extension of time in which to file application for review of Registrar’s decision dismissing application for non-appearance – nature of test for extension of time on application for review of Registrar’s decision – on any terms that the Court thinks fit – whether necessary to consider merits of underlying application – factors for consideration – length of delay – effect of very limited period in which to make application to extend time – reason for delay – prejudice to the respondent or third parties –merits of underlying application – whether arguable jurisdictional error. MIGRATION – Merits of underlying application – where no appearance before the Administrative Appeals Tribunal – application to Administrative Appeals Tribunal dismissed for non-appearance – where no application to Administrative Appeals Tribunal to review dismissal for non-appearance – whether applicant properly notified of Administrative Appeals Tribunal hearing – whether Administrative Appeals tribunal decision to dismiss legally unreasonable - where email notification went to spam folder – whether Administrative Appeals Tribunal ought to have telephoned the applicant or sent a letter by post when applicant failed to respond to email notification of hearing – whether arguable material jurisdictional error – whether any reasonable prospect of success – summary dismissal
 

MIGRATION - Where an email address in the Notice refusing to grant the visa was non-operational – where the Notice otherwise set out clearly a number of other methods by which the Applicant could review the decision – whether Notice was invalid – HELD in the circumstances that notice was valid, Applicant was not misled or prejudiced by the non-functioning email address  – application dismissed. 

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal  - whether Tribunal failed to consider claim made expressly – whether Tribunal failed to consider claim that was said to arise on the materials – where applicant represented before the Tribunal - whether Tribunal failed to comply with its obligations under s 425 of the Migration Act 1958 (Cth) – whether aspects of Tribunal reasoning were irrational, illogical or unreasonable - finding of jurisdictional error – writs issued 

MIGRATION – Urgent interlocutory application to restrain removal from Australia – where Applicant seeks to remain in Australia to pursue review of a decision by the Administrative Appeals Tribunal to cancel his student visa – whether prima facie case exists – HELD application for injunction refused.  

FAIR WORK – alleged adverse action - dismissal –probationary review – withholding of termination payments- presumption of adverse action rebutted by the respondent - no contravention of s 340, s 352 of the Fair Work Act 2009 (Cth) – applicant withheld company property –– contravention of s44 in two ways in relation to s117 - whether it is appropriate to make declarations order an apology - compensation order in the amount of $10,000- no civil penalty hearing considered appropriate – amended application otherwise dismissed 

MIGRATION – application for judicial review – student visa – review of a decision of the Administrative Appeals Tribunal (Tribunal) - whether the applicant could satisfy the ‘genuine temporary entrant’ criterion under cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) – whether the Tribunal had a statutory obligation under s 359AA of the Migration Act 1958 (Cth) to give the applicant notice – consideration of factors in Direction 69 –jurisdictional error established. 

MIGRATION – application for review of decision made by registrar – where registrar summarily dismissed application for judicial review of decision of Administrative Appeals Tribunal – de novo hearing – whether applicant has reasonable prospects of success on the substantive application – extension of time refused – costs ordered 

MIGRATION – Protection (Class XA) (Subclass 866) visa –– Administrative Appeals Tribunal –– judicial review –– legal unreasonableness –– whether the Tribunal misconstrued its statutory task as to whether it was appropriate to re-instate the application –– confirmation decision quashed –– matter remitted to the Tribunal 

BANKRUPTCY – application to review a sequestration order made by a registrar – alleged act of bankruptcy being failure to comply with a bankruptcy notice – bankruptcy notice claiming debt of less than the statutory minimum – whether bankruptcy notice invalid – whether to go behind the judgments – whether debtor solvent. 

PRACTICE AND PROCEDURE – oral application for a hearing to be adjourned – application granted.   

MIGRATION – protection visa - judicial review of a decision of the Immigration Assessment Authority – whether aspects of reasoning legally unreasonable, illogical or irrational because they involved the making of unwarranted assumptions - whether Authority unreasonably failed to exercise or consider the exercise of s 473DC(1) of the Migration Act 1958 (Cth) to get information from the applicant concerning claims introduced during SHEV interview  – where materiality put in issue – finding of jurisdictional error – writs issued

CONSUMER LAW – where applicant seeks orders pursuant to ss 100 and 101 of the National Credit Code – where applicant seeks orders authorising entry into residential premises of respondent – where applicant seeks orders authorising delivery of vehicle – where respondent has not filed any material – whether evidence supports making of such orders – order made requiring the respondent to deliver vehicle within 7 days – order made that the applicant can enter the respondent’s residential property for the purposes of repossessing the vehicle – order that respondent pay applicant’s costs 

MIGRATION - protection visa – application for review of decision of the then Immigration Assessment Authority – where Authority did not consider new information that was not before the delegate – whether Authority misconstrued or misapplied the test for consideration of new information pursuant to s.473DD – jurisdictional error established – application allowed.     

MIGRATION – protection visa – application for review of decision of the then Immigration Assessment Authority – failure to consider new information that was not before the delegate – whether Authority misconstrued or misapplied the test for consideration of new information pursuant to s.473DD – jurisdictional error established – application allowed.   

MIGRATION – student (subclass 500) visa – decision of the 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 – application dismissed with costs.  

MIGRATION – Administrative Appeals Tribunal –Employer Nomination (Permanent) (Class EN) visas– judicial review - whether the decision of the Tribunal is affected by legal unreasonableness – whether the Tribunal failed to take into account relevant considerations – no jurisdictional error made out – application dismissed 

MIGRATION – Student (Temporary) (Class TU) visa– Administrative Appeals Tribunal –– judicial review – whether the Tribunal fell into jurisdictional error – no jurisdictional error established – inappropriate to infer proceedings brought for ulterior purpose – application dismissed. 

MIGRATION – Employer Nomination Scheme (Subclass 186) visa – decision of Administrative Appeals Tribunal – Tribunal affirming delegate’s decision not to grant a visa – applicants’ judicial review application summarily dismissed by Registrar – application for review of Registrar’s decision filed out of time – application for extension of time – whether there was an adequate explanation for delay – whether there was an arguable case of jurisdictional error – application to Court for adjournment to make further inquiries refused – whether judicial review proceedings are futile – extension of time application refused with costs

MIGRATION – student (subclass 573) visa – visa cancelled – breach of condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (Cth) – decision of the Administrative Appeals Tribunal to affirm delegate’s decision – judicial review – whether Tribunal failed to consider relevant facts – Tribunal’s decision not affected by jurisdictional error – application for judicial review dismissed

INDUSTRIAL LAW – FAIR WORK – application by a refugee immigrant for relief in relation to various established contraventions of the minimum entitlements, regular payment and record-keeping obligations under the Fair Work Act 2009 (Cth) – compensation, interest and pecuniary penalties ordered.

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 failed to afford the applicant an opportunity to discuss his claims for protection – whether the Tribunal failed to consider that the applicant would face a real chance of persecution on account of his religion – whether the applicant was denied a proper opportunity to participate in the hearing in circumstances where he claims he could not hear the interpreter – no jurisdictional error – application dismissed.

MIGRATION LAW – Whether the Tribunal had conducted a proper hearing – whether the Tribunal had made an illogical decision – whether the decision of the Tribunal was unreasonable – no jurisdictional error established – application for review dismissed.

MIGRATION LAW – Where it was a pre-condition for the grant of the visa that there was a valid nomination – where there was no valid nomination – application for review futile – application dismissed.

MIGRATION – application for review of Registrar’s decision – where Registrar summarily dismissed application for judicial review – extension of time - hearing de novo – sponsor employer deregistered – futility of application.

FAIR WORK – alleged contraventions of general protections provisions of the Fair Work Act 2009 (Cth) – where adverse action was taken in nominating applicant’s role for redundancy and in ending the employment by reason of redundancy – where applicant did not establish the fact or exercise of a complaint or inquiry that the applicant was able to make, in relation to the employment, but there was a workplace right to take personal leave which was exercised on two occasions – consideration of evidence of relevant decision-maker and what motivated the adverse actions – where respondent discharged the reverse onus in relation to the reasons for the established adverse actions – application dismissed.

MIGRATION –  protection visa, protection visa denied, judicial review application, 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 – no satisfactory explanation for the delay – 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 – protection visa – applications for judicial review must be made by applicant within 35 days of the date of the Tribunal’s decision – applicant filed application for judicial review 35 days after time elapsed – not satisfied that it is in the interests of the administration of justice to grant extension of time – applicant did not disclose prior judicial review proceeding – whether any prejudice to Minister – assessment of the merits of the substantive judicial review application – no reasonable prospects of success – application for extension of time dismissed.

PRACTICE AND PROCEDURE – bankruptcy – costs – application for review of Registrar’s costs order  – de novo hearing – where creditor’s petition proceeding dismissed by consent in circumstances where judgment debt paid by respondent – where unreasonable conduct of respondent was catalyst for filing of creditor’s petition – where despite this the respondent sought his costs of the proceeding which necessitated a hearing on costs – costs order of Registrar set aside and in its place order made that respondent pay the applicant’s costs associated with costs hearing

INDUSTRIAL LAW – pecuniary penalty – enforcement of pecuniary penalty

MIGRATION- Administrative law – judicial review- allegation of bias – denial of procedural fairness – whether denied a real and meaningful opportunity to participate in hearing due to applicant’s nervousness – application dismissed

MIGRATION – Immigration Assessment Authority – safe haven enterprise visa - whether the Authority failed to consider a claim – whether the Authority misinterpreted or misapplied the law – whether the Authority made findings without a logically probative basis or that were unreasonable.

MIGRATION – student visa – where applicant had not met the requirements of his student visa – applicable criteria not satisfied – no error established – application dismissed.

MIGRATION – Administrative Appeals Tribunal - Protection (class XA) (subclass 866) visa – Tribunal’s exercise of the dismissal power -Whether the Tribunal’s decision was legally unreasonable – Whether the Tribunal’s decision was made in accordance with law – Whether the Tribunal misunderstood the contact number provided by the applicant – no jurisdictional error established – application dismissed.

MIGRATION LAW – where IAA failed to intellectually engage in a consideration of the applicants’ claims – where the IAA made unreasonable findings – jurisdictional error established – application allowed.

MIGRATION – practice and procedure – application for review of Registrar’s orders summarily dismissing an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) that it did not have jurisdiction to consider an application for review the applicant filed in relation to a decision a delegate of the Minister made refusing to grant the applicant a protection visa – whether it was reasonably arguable that the Tribunal has jurisdiction – application for review dismissed and the Registrar’s decision affirmed.

MIGRATION – judicial review -protection visa- no evidence ground only available in relation to positive findings- negative findings where Tribunal not satisfied and rejects evidence as not being credible are not open to challenge on no evidence judicial review ground - application dismissed

MIGRATION – protection – application for judicial review of decision by Administrative Appeals Tribunal not to grant Safe Haven Enterprise Visa – where applicant claimed to fear harm as a body builder – nature of claim made by the applicant – whether claim clearly articulated or arose from the materials - whether claim maintained after it had been explained and refined during earlier interview processes – distinction between physical presence as body builder and activities associated with running a gym and training women – where submissions to Tribunal seeks to enliven all previous claims – whether “body builder claim” fell to be considered by Tribunal – whether Tribunal failed to consider claim – no error established

MIGRATION – application for judicial review – student visa – review of a decision of the Administrative Appeals Tribunal (Tribunal) - whether the applicant could satisfy the ‘genuine temporary entrant’ criterion under cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) – whether the Tribunal had a statutory obligation under s 359AA of the Migration Act 1958 (Cth) to give the applicant notice – consideration of factors in Direction 69 –jurisdictional error established.

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority to affirm a decision not to grant the applicant a protection visa – whether the Authority misconstrued s 473DD of the Migration Act 1958 (Cth) – whether the Authority erred by making a finding based on the inconsistency of the information provided by the applicant – whether the Authority misunderstood its task by relying on an omission by the applicant at an entry interview – whether the Authority unreasonably failed to exercise or consider exercising its discretion in s 473DC of the Migration Act 1958 (Cth) to invite the applicant to comment – no jurisdictional error – application dismissed.

MIGRATION – Administrative Appeals Tribunal – Protection Visa (subclass 866) (class XA) cancellation – failure to comply with s 101 Migration Act 1958 (Cth) – s 438 notification certificates – applicant request for access to redacted information – public immunity interest (PII) claim – request refused and PII claim upheld.

MIGRATION – Extension of Time Application – Student Visa – Administrative Appeals Tribunal - Whether the applicant was afforded a real and meaningful opportunity to give evidence and present arguments – Whether the applicant was afforded an opportunity to provide further evidence – No jurisdictional error made out - Application dismissed.

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