Judgments

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 – 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.

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 – Judicial Review – Protection Visa – Whether the Administrative Appeal Tribunal decision was affected by bias – Whether the Tribunal findings were illogical, irrational or unreasonable – whether there was a breach of obligations in ss 424A and 424AA- No jurisdictional error established – Application dismissed

MIGRATION – application for judicial review – matter listed for final hearing – no appearance by or on behalf of the applicant – 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)

CHILD SUPPORT – Amended notice of appeal dismissed – unfounded allegations – proceedings are an abused of process and vexatious – not appropriate to transfer proceedings to the Federal Court of Australia – no jurisdiction under s 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth)

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – whether the Authority failed to consider a relevant consideration – whether the Authority erred in interpreting or applying the law – whether the Authority made a finding which was legally unreasonable or made findings without logically probative material – no jurisdictional error – application dismissed.

INDUSTRIAL LAW – contract of employment – underpayment of wages and superannuation – alleged contravention of Fair Work Act 2009 (Cth) – whether respondent is legal employer of applicants – where respondent company operates through various subsidiaries - consideration of factors relevant to identifying true employer – legal employer and paying entity contrasted – dispute as to date of termination of employment – whether respondent engaged in misleading and deceptive conduct in relation to employment of applicants – promissory estoppel - whether applicants sustained loss and damage – relief not granted

MIGRATION– decision of the Administrative Appeals Tribunal - cancellation of visa - subclass 855 (Skilled-Independent) - non-appearance by or on behalf of the applicant pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

INTELECTUAL PROPERTY  –  Practice and procedure – application for particulars of defence – whether applicant entitled to the particulars sought for the stated purposes – not so entitled – application for an order vacating discovery order made earlier in the proceeding – whether it was appropriate, in the interests of the administration of justice, for the discovery order to have been made – not appropriate – discovery order set aside – application to split liability from quantum – premature to determine whether such order should be made – application to adjourn hearing of application for summary dismissal to the final hearing of the matter – application for adjournment dismissed – application for summary dismissal also dismissed – matter listed for further directions hearing.

MIGRATION – protection visa – protection visa denied – judicial review application –late application for judicial review – extension of time request to undertake judicial review – lengthy delay - no satisfactory explanation for delay –merits of the substantive application very weak -application for an extension of time dismissed.

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – consideration of the genuine temporary entrant criterion – whether Tribunal failed to consider applicant’s evidence – no jurisdictional error established – application dismissed.

MIGRATION – Medical Treatment (Visitor) visa – Administrative Appeals Tribunal –– Judicial Review – application for extension of time to bring judicial review proceedings under s 477(2) of the Migration Act 1958 (Cth) – whether an extension of time is necessary in the interests of the administration of justice – application dismissed.

MIGRATION – Administrative Appeals Tribunal – cancellation of protection visa – whether the Tribunal failed to consider Australia’s non-refoulement obligations in the context of a supposed relocation and mental health issues – whether the Tribunal engaged in impermissible speculation – whether the Tribunal engaged in irrational reasoning.

MIGRATION – application for judicial review – protection visa – whether Tribunal failed to consider integer of claim – jurisdictional error not established – application dismissed.

MIGRATION – application for judicial review of a decision made by the Immigration Assessment Authority – whether the Authority failed to consider relevant considerations – whether the Authority misinterpreted or misapplied the relevant law – whether the Authority made findings that were unreasonable or without a logically probative basis – no jurisdictional error – application dismissed.

MIGRATION LAW – Where applicant claimed that the decision of the Tribunal was unreasonable – where it was claimed that the Tribunal had failed to have regard to relevant material – where it was claimed that the Tribunal had failed to afford procedural fairness to the applicant – where no jurisdictional error established – application dismissed.

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – where applicant failed to provide evidence of English language proficiency –brevity of hearing – inappropriate to infer proceedings brought for ulterior purpose – no jurisdictional error established – application dismissed

INDUSTRIAL LAW – Contraventions – failure to comply with compliance notice – agreed statement of facts and admissions – agreed penalty – relevant principles concerning agreed penalty – factors for assessment of whether agreed penalty proposed is appropriate.

INTELLECTUAL PROPERTY –  practice and procedure - application for default judgment based on statement of claim alleging infringement of copyright in musical works – whether on the face of the statement of claim the applicant has established an entitlement to relief for infringement of copyright – whether it is appropriate to grant declaratory and injunctive relief – whether it is appropriate to assess damages on the basis of the licence fee that would have been paid to applicant – whether additional damages should be ordered – relief granted.

MIGRATION LAW – application for judicial review –Student visa – whether the Tribunal committed a jurisdictional error in refusing to grant an extension of time for applicant to obtain a confirmation of enrolment – no confirmation of enrolment held at the time of Tribunal hearing – Tribunal’s decision to refuse adjournment has an evident and intelligible basis – no legal unreasonableness – application dismissed with costs

MIGRATION – review of registrar’s decision – summary dismissal – application dismissed

MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – citizen of Vietnam – Medical Treatment visa – whether failure to properly consider medical certificate – consideration of cases involving bare medical certificates – whether  unreasonable refusal to adjourn hearing – whether deprived of opportunity to give evidence and present arguments – whether failure to properly consider psychiatric evidence – whether remitter futile in any event – whether relief to be refused in exercise of discretion – whether material jurisdictional error

BANKRUPTCY – application for an extension of time to seek review of a Registrar’s decision – consideration of criteria relevant to extension of time – where applicant for extension failed to file evidence to explain delay – where applicant debtor has not filed statement of affairs or other cogent evidence - where substantive review has no prospect of success – extension of time not granted – Registrar’s sequestration order affirmed

MIGRATION -Whether Immigration Assessment Authority failed to properly apply test in relation to new information – whether decision unreasonable

MIGRATION – decision of the Immigration Assessment Authority – whether the IAA misunderstood or misapplied the “real chance test” – whether the IAA failed to understand what was required of it when assessing the applicant’s credibility – whether the IAA erred in its assessment of evidence and country information – whether the IAA erred by unreasonably refusing to allow the applicant’s representative a further opportunity to provide revised submissions in accordance with the relevant Practice Direction – jurisdictional error established – writs issued.

MIGRATION – application for judicial review of a decision made by the Immigration Assessment Authority affirming a decision not to grant the applicant a protection visa – whether the Authority failed to undertake its task or denied the applicant procedural fairness by failing to raise critical matters – whether the Authority denied the applicant procedural fairness or made an error of law by not inviting the applicant to an interview – where applicant asserts that he could not properly give evidence due to medical conditions – no jurisdictional error – application dismissed.

PRACTICE & PROCEDURE –Non-compliance with Orders – where Rule 13.04 and 13.05 are enlivened – where applicant applies for Adjournment – where respondent applies for dismissal of the action – where it is possible that the actions of the applicant may be seen as unreasonable – where an order for security for costs is warranted if an adjournment was granted

INDUSTRIAL LAW  – Fair Work – where applicant dismissed from employment following lengthy absence due to workplace injury – where applicant employed in specialist nurse practitioner role – where applicant alleged dismissal adverse action was taken because she exercised workplace rights within the meaning of s 341 of the Fair Work Act 2009 (Cth) – identification of decision makers – where not all decision makers gave direct testimony – whether respondent able to discharge statutory reverse onus – finding that respondent contravened s 340(1) of the Fair Work Act – whether respondent breached obligations under the applicable Enterprise Agreement – whether respondent failed to assist the applicant to remain at work or return to work in suitable employment – no breach of Enterprise Agreement established – matter adjourned for hearing on penalty and relief

MIGRATION – protection visa – where applicants failed to attend – application dismissed.

MIGRATION – Judicial Review - Protection Visa – Procedural fairness – Impermissible merits review – Whether applicant was on notice that credibility was in issue before the Tribunal - Where applicant self-represented – Where applicant did not provide oral or written submissions as to the grounds of review – Where applicant did not appear to be aware of the grounds of review until the hearing - Application dismissed

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

MIGRATION – Judicial Review – student visa – Direction No. 69 – whether applicant was a genuine temporary entrant – failure to respond to s 359(2) invitation within prescribed time limit due to agent error – infelicities of expression by Tribunal – jurisdictional error not established – application dismissed

MIGRATION – application for an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal – relevant considerations – extension of time refused

CONSUMER LAW – COSTS – indemnity costs sought by respondents – costs awarded in accordance with Part 1 of Schedule 2 of the Rules – cross-claimants entitlement to interest pursuant to Contract of Sale – claim made for agent’s commission on resale – STAY – stay granted.

MIGRATION – Extension of time application – Student visa – grounds of procedural fairness – whether Tribunal considered adverse information before it – application granted

MIGRATION – Administrative Appeals Tribunal -  Student (Temporary)(subclass 500)(Class TU)– genuine temporary entrant criteria cl 500.212 – Tribunal hearing record –  whether applicants were denied natural justice and procedural fairness – whether second respondent committed jurisdictional error – allegations of apprehended bias – whether applicants were put on notice – application and validity of Direction 69 to the Tribunal – whether applicants were given adequate reasons for the rejection of their evidence – application dismissed.

MIGRATION – Administrative Appeals Tribunal – student visa (subclass 572) refusal – Genuine Temporary Entrant Criteria cl 500.212(a) Sch 2 – whether Tribunal decision was affected by error of law, procedural fairness and jurisdictional error – whether the Tribunal unduly relied on Ministerial Direction No. 69 – whether the Tribunal failed to provide a warning about the potential refusal of the student visa – application dismissed.

MIGRATION – administrative law – judicial review – visitor visa – discontinued by consent

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of the application for an extension of time – 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 – application for an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal – related application for an interlocutory injunction preventing removal of the applicant from Australia – arguable case that s 425 of the Migration Act 1958 (Cth) was breached – time extended – injunction granted

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of the application for an extension of time – 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 – Protection visa – decision of the Administrative Appeals Tribunal – allegation of agent misconduct and/or fraud on the Tribunal raised at first hearing before this Court – evidence filed by the applicant in relation to the agent’s conduct – pro bono referral certificate issued by the Court (and accepted by pro bono counsel) – application ultimately discontinued and costs awarded. 

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) – whether the IAA constructively failed to exercise its jurisdiction by failing to consider and determine a claim – application dismissed

MIGRATION – student visa – decision of the Administrative Appeals 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) – consideration of factors in Ministerial Direction 69 – consideration of the applicant’s study history in Australia and his home country – consideration of the applicant’s circumstances in Australia and his home country - no jurisdictional error – application dismissed with costs 

HUMAN RIGHTS - alleged sex, racial, and pregnancy discrimination during employment – consideration of costs – costs set at fixed amount of $40,000.00.

INDUSTRIAL LAW – where employee of deregistered company alleges that sole director of the company was involved in the company’s failure to make payments in accordance with an award – whether award covered the employee’s employment – whether company failed to make payments it was required to make under the award – whether sole director of the company was a person involved in company’s failure to pay amounts it was required to pay under the award – employee establishes that he was covered by the award and the company had failed to make payments to the employee it was required to make under the award but employee fails to establish that the sole director was involved in the company’s failure to comply with the award – application dismissed.

INDUSTRIAL LAW – alleged contraventions of ss 351 and 340 of the Fair Work Act 2009 (Cth) – where the applicant has failed to establish that steps taken by the respondent to accommodate her family and carer’s responsibilities amount to adverse action – where the applicant made complaints and inquiries in relation to her employment – where the respondent took adverse action against the applicant by removing her from a scheduled shift and dismissing her from her employment – where the respondent has failed to discharge the reverse onus in s 361 of the Fair Work Act – contravention of s 340(1) of the Fair Work Act established.

INDUSTRIAL LAW – ex tempore ruling – application made on eve of trial - whether leave should be granted for respondent to file further affidavit material – consideration of the Federal Circuit and Family Court of Australia’s case management principles – whether there would be non-compensable loss if application is granted - application dismissed

PRACTICE AND PROCEDURE – interlocutory application for an adjournment – application opposed – matter listed for a hearing of the interlocutory application for an adjournment – no appearance by or on behalf of the applicant – interlocutory application dismissed for non-appearance pursuant to r 13.06(1)(d) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).