Judgments

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA reasoned in a way that was relevantly open to it – whether the IAA unreasonably failed to exercise power under s 473DC of the Migration Act 1958 (Cth) – whether the IAA misunderstood country information that it relied upon – whether the IAA relevantly erred in dealing with the question of relocation – where not all of the impediments to relocation raised by the applicant were considered by the IAA in assessing relocation – application succeeds

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 – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal ignored relevant facts and relied on irrelevant facts – whether the Tribunal did not give “due and proper” consideration to information – whether the Tribunal placed “the wrong emphasis on matters” – whether the Tribunal made an incorrect inference – whether there was any evidence to substantiate the Tribunal’s findings – whether the Tribunal misconstrued or failed to consider all of the legislative requirements set out in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) – whether the Tribunal’s decision “goes against the interest of justice” – whether the Tribunal failed to give adequate weight to particular facts or evidence – whether the Tribunal failed to consider the impact of COVID-19 – no jurisdictional error – application dismissed.

MIGRATION – practice and procedure – dismissal for non-appearance

MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal – whether the Tribunal failed to act according to substantial justice and the merits of the case – whether the Tribunal failed to consider the applicant’s enrolment and work towards completing a degree – whether the Tribunal wrongly speculated the applicant had a strong financial incentive to stay in Australia – whether the Tribunal incorrectly identified the applicant’s home country – whether the Tribunal failed to act in accordance with the immigration laws of Australia – whether the Tribunal’s finding was illogical or irrational – no jurisdictional error – application dismissed.

MIGRATION – Application for judicial review – Citizen of Afghanistan – Excluded fast track applicant – Where the Delegate found the applicant submitted a bogus identity document in support of visa application – Denial of procedural fairness – Legal unreasonableness –– Opportunity to comment on document in meaningful or effective way– Particulars of why document was considered to be bogus – Practical injustice – Minister concedes error in matters referred to applicant for comment – Is this jurisdictional error – Or can it be characterised as technical error – Is any failure to provide comment jurisdictional error leading to relevant decision being vitiated – Materiality – Conflict of authority – Minister submits discretion not to grant constitutional writs should be granted – Matters to be considered – Application dismissed

MIGRATION LAW – application for judicial review –applicant’s subclass 050 (Bridging (General)) visa – cancellation of visa under section 116(1)(g) of the Migration Act 1958 (Cth) – review of delegate’s decision to cancel visa by the Administrative Appeals Tribunal – whether Tribunal made an error in considering the applicant’s criminal convictions – whether the Tribunal failed to consider the applicant’s evidence – whether the Tribunal erroneously applied Direction 63 – where Tribunal considered it appropriate to rely on the convictions and sentencing – applicant seeking impermissible merits review – application dismissed

MIGRATION – judicial review – jurisdictional error – denial of procedural fairness – alleged bias – allegation as to difficulty understanding and communicating with Tribunal member on telephone where interpreter involved

INDUSTRIAL LAW – SMALL CLAIMS – Application for interest up to the payment of accident make-up pay – Application filed out of time – Consideration of limitation periods – Application dismissed

INDUSTRIAL LAW - compensation payable – assessment of pecuniary penalties – promoting public interest in compliance – relevant factors in assessing pecuniary penalty – nature and extent of loss – specific and general deterrence – costs – stay of proceedings – payment of compensation and penalty to be made.

BANKRUPTCY - Application for review of sequestration order made by Registrar – whether preconditions for making sequestration order are satisfied – whether there is any reason why a sequestration order ought not be made – application for review dismissed and sequestration order affirmed.

MIGRATION LAW – Temporary Business Entry (Class UC) visa – decision of Administrative Appeals Tribunal – three applicants – where primary applicant did not hold an approved nomination by a business sponsor – cl 457.223(4)(a) of Migration Regulations 1994 (Cth) not satisfied – Tribunal affirmed decision of a delegate to refuse the visa – whether jurisdictional error established – whether remittal futile

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal failed to give the applicant adequate notice of, and a sufficient opportunity to address, a critical issue in the review – whether the Tribunal asked itself the wrong question or misconstrued the statutory requirements – whether the Tribunal acted unreasonably in refusing the applicant’s request for an adjournment – no jurisdictional error – application dismissed.

MIGRATION – protection visa – extension of time – where delay is very lengthy – where explanation for delay unsatisfactory – whether the applicant was properly notified of the delegate’s decision – where merits of substantive application not strong

MIGRATION – Extension of Time – Protection visa  – lengthy delay and inadequate explanation for that delay – no reasonably arguable case for jurisdictional error –  application dismissed.

MIGRATION -  protection visa – application for judicial review of decision of Administrative Appeals Tribunal affirming refusal of visa – whether Tribunal failed to consider all of the applicant’s claims for protection – where applicant seeks protection as a vulnerable woman and single female without male protection – whether claim to fear sexual harassment made – whether claim clearly emerged or squarely raised on the material before the Tribunal – where multiple other claims made by applicant – where Tribunal would have to construct claim for the applicant – no error revealed

MIGRATION – extension of time – 318 days out of time – significant delay – applicant purportedly lost job during COVID-19 pandemic – applicant claims unable to afford court filing fees due to financial difficulties – insufficient evidence – impecuniosity irrelevant – inadequate explanation for delay – application dismissed

MIGRATION – student visa – whether applicant is a genuine temporary entrant – consideration of Ministerial Direction No. 69 – no grounds of jurisdictional error established – application dismissed.

BANKRUPTCY – application to join Official Receiver to proceedings – where date of lodging Statement of Affairs in issue – determining all issues in dispute - application granted

MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizen of Sri Lanka of Tamil ethnicity and Hindu religion – Safe Haven Enterprise visa - whether new information for the purposes of s 473DD of the Migration Act 1958 (Cth) to be considered – where Tamil diaspora claim – where photographic evidence of applicant’s alleged Tamil diaspora activities in Australia – relevance – probative value – whether test as to exceptional circumstances misconstrued – whether test as to what constitutes credible personal information misconstrued – whether material jurisdictional error – writs issued

MIGRATION – application for judicial review of Administrative Appeals Tribunal decision that it had no jurisdiction to review a partner visa refusal because the prescribed filing fee was not paid within a reasonable period – where applicant also complained that the Tribunal officer’s fee refusal decision was incorrect – no jurisdictional error established, application is dismissed with costs.

MIGRATION – application for judicial review of Administrative Appeals Tribunal decision that it had no jurisdiction to review a partner visa refusal because the applicant had no standing – where the delegate was not satisfied of a de facto or spouse relationship and, before the tribunal on review, the spouse withdrew sponsorship – where visa applicant sought to reopen the case on grounds of family violence but had no standing under s.347(2)(b) of the Migration Act 1958 (Cth) – no jurisdictional error established, application is dismissed with costs.

MIGRATION – Application for extension of time to bring application for review – where the substantive application for review was without merit and futile – where application for extension of time dismissed accordingly.

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – whether the Authority failed to properly consider the applicant’s claims – whether the Authority applied the wrong legal test – whether the Authority denied the applicant procedural fairness – whether the Authority unreasonably failed to exercise its discretion in s 473DC of the Migration Act 1958 (Cth) or its general powers in the conduct of review to seek new information or new submissions – no jurisdictional error – application dismissed.

MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Temporary Protection visa – consideration of whether the Authority committed a jurisdictional error in its application of s 473DD of the Migration Act 1958 (Cth) – whether the Authority imported a requirement that the new information be true as opposed to ‘credible’ – whether the new information could not have been provided to the delegate for the Minister includes external limitations only – where applicant did not provide information about his claims to fear harm based on his sexuality – no jurisdictional error established – application dismissed

MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise visa – where the delegate’s refusal decision had been before the Authority on three previous occasions – extensive procedural history – whether Authority unreasonably failed to exercise its discretion under s 473DC – whether the Authority failed to consider a claim before it – whether the Authority failed to consider the risk to the applicant as a result of critical social media posts – comprehensive consideration of issues by the Authority – no jurisdictional error established – application dismissed

INTELLECTUAL PROPERTY – Costs – on 15 March 2024 the Court ordered that the applicant pay the costs of the respondents but reserved liberty to the respondents to apply for their costs to be assessed according to Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) or on some other basis – the respondents applied for costs to be assessed according to Part 1 of Schedule 2 to the GFL Rules – whether counsel’s fees are recoverable under item 11 of Part 1 of Schedule 2 to the GFL Rules or may only be recovered under item 10 as an advocacy loading – counsel’s fees are recoverable only as an advocacy loading – costs of the respondents assessed on that basis.

CONSUMER LAW – Misleading and deceptive conduct – representation of “top floor” of apartment building at time of contract of sale for apartment sold ‘off-the-plan’ – subsequent additional floor added – identification of nature of representation – whether representations were misleading or deceptive – representation as to “future matters” within meaning of s.4 of the Australian Consumer Law – whether respondents had reasonable grounds for representations – whether applicant entitled to recover the deposit – application dismissed.

MIGRATION – application for judicial review of Administrative Appeals Tribunal decision that it had no jurisdiction to review a partner visa refusal because the prescribed filing fee was not paid within a reasonable period – where applicant also complained that the Tribunal officer’s fee refusal decision was incorrect – no jurisdictional error established, application is dismissed with costs.

MIGRATION – application for judicial review of Administrative Appeals Tribunal decision that it had no jurisdiction to review a partner visa refusal because the applicant had no standing – where the delegate was not satisfied of a de facto or spouse relationship and, before the tribunal on review, the spouse withdrew sponsorship – where visa applicant sought to reopen the case on grounds of family violence but had no standing under s.347(2)(b) of the Migration Act 1958 (Cth) – no jurisdictional error established, application is dismissed with costs.  

MIGRATION – Application for extension of time to bring application for review – where the substantive application for review was without merit and futile – where application for extension of time dismissed accordingly. 

INTELLECTUAL PROPERTY – Costs – on 15 March 2024 the Court ordered that the applicant pay the costs of the respondents but reserved liberty to the respondents to apply for their costs to be assessed according to Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) or on some other basis – the respondents applied for costs to be assessed according to Part 1 of Schedule 2 to the GFL Rules – whether counsel’s fees are recoverable under item 11 of Part 1 of Schedule 2 to the GFL Rules or may only be recovered under item 10 as an advocacy loading – counsel’s fees are recoverable only as an advocacy loading – costs of the respondents assessed on that basis.

MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – whether the Tribunal failed to act on the correct principle, correctly applied, in that it wrongly treated “substantial component” and meaning “majority” – whether the decision of the Tribunal is affected by legal unreasonableness, in that the Tribunal unreasonably failed to adjourn the hearing or provide more time to respond to information or put on evidence – whether failure to notify the applicant that he could seek additional time to comment on or respond to information was a denial of procedural fairness – whether jurisdictional error is made out – no jurisdictional error made out – the application is dismissed.

MIGRATION – Partner Visa – review of Administrative Appeal Tribunal decision - whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application

INDUSTRIAL LAW – Costs – Application for costs following the Applicant filing a Notice of Discontinuance – Application for costs dismissed

CONSUMER LAW – Chattel mortgage of motor vehicle (“Vehicle”) – security interest registered under the Personal Property Securities Act 2009 (Cth) – application for orders sanctioning seizure of Vehicle.

MIGRATION – Student Visas – Administrative Appeals Tribunal concluded the primary visa applicant, the first applicant, did not genuinely intend to stay temporarily in Australia – applicants applied for judicial review of Tribunal’s decision – allegations that Tribunal did not conduct a merits review and did not consider material facts including the first applicant’s compliance with her visa conditions – allegations that the first applicant was confused by the legal process – allegation that the Tribunal did not assess the applicants’ evidence – jurisdiction error not established – application for judicial review dismissed – parties to be heard on costs.

MIGRATION – Protection Visa – Refusal – Review of Immigration Assessment Authority (“IAA”) decision – Criteria for considering “new information” under s 473DD of the Migration Act 1958 (Cth).

CONSUMER LAW – application for an order under s 100 of the National Credit Code authorising entry into residential premises for the purposes of taking possession of mortgaged goods – whether it is necessary for the applicant creditor to identify the particular residential premises in relation to which the applicant creditor seeks an order authorising entry – necessary to identify such residential premises – application for an order under s 101 of the National Credit Code for the delivery of mortgaged goods – whether necessary to prove that the person against whom such order is made has possession of the mortgaged goods – necessary to so prove – order made against respondent for delivery of mortgaged goods subject to respondent having liberty to apply to prove he no longer has possession of the mortgaged goods.

INDUSTRIAL LAW – assessment of a pecuniary penalty for contravention of s 716(5) of the Fair Work Act 2009 (Cth) – first respondent in liquidation – where default judgment occurred following the second respondent’s non-engagement with proceedings – penalty determined – associated order made regarding distribution

CONSUMER LAW – Practice and procedure – where applicant creditor applies for orders under s 100 and s 101 of the National Credit Code in relation to default by borrower of terms of a credit facility – where application has not been personally served but is said to have been served according to the term of the loan agreement between the creditor and the debtor – whether the term of the loan agreement engages r 10.28(1) of the Federal Court Rules – terms of loan agreement do not do so because r 10.28(1) of the Federal Court Rules applies to an agreement for service of an originating application or for service any other document filed in the proceeding – application therefore has not been served – matter listed for further directions.

CONSUMER LAW – Practice and procedure – where applicant applies for orders under s 100 and s 101 of the National Credit Code in relation to default by borrower of terms of a credit facility – where application has not been personally served – whether term of loan agreement engages r 10.28(1) of the Federal Court Rules – terms of loan agreement do not because r 10.28(1) of the Federal Court Rules applies to agreement for service of an originating application in a proceeding or of other documents in a proceeding – application therefore was not served – matter listed for further directions.

CONSUMER LAW – Application for orders under s 100 and s 101 of the National Credit Code for the delivery of a motor vehicle and entry into residential premises to repossess the motor vehicle – credit contract on the basis of which relief sought is not covered by the Code – no other relief claimed – application dismissed.

BANKRUPTCY – Application for leave to distribute dividends to creditors of bankrupt estate – failure to file statement of affairs pursuant to s 77CA of the Bankruptcy Act 1966 (Cth).

BANKRUPTCY – Appeal against the decision of Trustee to admit proof of debt – Parties rights did not merge on execution of a Deed of Settlement because release and discharge was conditional on payment of sum of money as to which the Applicant defaulted – Where the Court did not exercise its discretion to go behind the judgment which gave rise to the proof of debt – Where the assignment of debts to the creditor was legally effective – Court confirmed decision of Trustee – Application otherwise dismissed

PRACTICE AND PROCEDURE – application in a proceeding for the matter to be transferred to another registry – factors for consideration.

MIGRATION – Administrative Appeals Tribunal –Regional Employer Nomination (Permanent) (Class RN) visas–whether the decision of the Tribunal is affected by legal unreasonableness – whether jurisdictional error is made out – no jurisdictional error made out – the application is dismissed

MIGRATION – application for judicial review – student visa – whether Tribunal erred in considering Ministerial Direction 69 – whether applicant was a genuine temporary entrant – jurisdictional error not established – application dismissed.

MIGRATION – protection visa – application refused – whether Tribunal decision was illogical, irrational or unreasonable – whether Tribunal made inconstant findings – whether Tribunal misconstrued or misunderstood the meaning of the phrases ‘serious harm’ and ‘significant harm’ - jurisdictional error not established – application for judicial review dismissed

MIGRATION – Immigration Assessment Authority – protection visa - apprehended bias – whether the Authority took into account irrelevant considerations – whether the Authority made a finding based on unwarranted assumptions – whether the Authority failed to take into account relevant considerations.