Judgments

INDUSTRIAL LAW – FAIR WORK – contravention of a statutory compliance notice – application for relief – non-participation of Respondent in relation to question of appropriate relief – whether an order under s.545(1) requiring compliance with a statutory compliance notice is an order in relation to an underpayment for purposes of the time limitation at s.545(5) and whether appropriate to order interest on an amount owed under s.547 – application granted, with orders that the Respondent must comply with the statutory compliance notice and pay a pecuniary penalty.

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.

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 – 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 – 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

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

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

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).

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.

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 – 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 – 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.

MIGRATION – Judicial review – application for an extension of time – Minister required by Act to notify the Applicant of the delegate’s decision – dismissal for non-appearance.

INDUSTRIAL LAW – failure to comply with minimum terms and conditions in awards – level of pecuniary penalty to be imposed – where parties entered into a Statement of Agreed Facts – where parties agree on penalty – whether penalty agreed is appropriate – factors considered – HELD appropriate that a penalty be imposed in the terms agreed by the parties.

MIGRATION – application for judicial review – where delegate of the first respondent cancelled the applicant’s student (subclass 500) visa (Visa) under s 116(1)(d) of the Migration Act 1958 (Cth) – where applicant not immigration cleared – consideration of whether s 109 applies when considering to cancel visa under s 116(1)(d) of the Migration Act 1958 (Cth) – found that the provisions of s 109 do not apply to the exercise of power under s 116(1)(d) – application dismissed.

MIGRATION – Student (subclass 500) visa – decision of Administrative Appeals Tribunal – where delegate determined that applicant 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 – application for judicial review – where Administrative Appeals Tribunal affirmed decision not to grant applicant a Student (Temporary) (Class TU) visa – where applicant concedes not enrolled in a course of study at the time of the Tribunal’s decision – oral submissions raised at hearing – where certain grounds raised by applicant were entirely misconceived – where certain grounds raised by applicant entirely unparticularised - found no jurisdictional error on behalf of the Tribunal – application dismissed.

MIGRATION -  application for judicial review – Student (Temporary) (Class TU) visa – where Administrative Appeals Tribunal affirmed decision of first respondent that the applicant was not a genuine applicant for entry and stay as a student – where grounds raised by applicant completely unparticularised – whether Tribunal erred by not affording the applicant procedural fairness – found the applicant was afforded a meaningful opportunity to appear, give evidence and present his case - whether the Tribunal breached s 359A obligations with respect to adverse information - found the Tribunal gave clear particulars of that information to the applicant in its s 359AA Statement -  where certain ground raised by applicant seek impermissible merits review -  whether Tribunal erred by not considering medical evidence -  found no jurisdictional error on behalf of the Tribunal.

MIGRATION – application for judicial review – Student (Temporary) (Class TU) visa – where Administrative Appeals Tribunal affirmed decision of first respondent that the applicant was not a genuine applicant for entry and stay as a student – where certain grounds raised by the applicant do not assert any jurisdictional error – where certain grounds raised by applicant seek impermissible merits review – whether Tribunal did not have regard to relevant circumstances – found Tribunal had regard to all relevant considerations – found no jurisdictional error on behalf of Tribunal – application dismissed.

MIGRATION - application for judicial review – Safe Haven Enterprise Visa - where Immigration Assessment Authority affirmed decision of first respondent that applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 -  whether Authority denied the applicant procedural fairness by failing to provide him with a copy of the Delegate’s decision when requested – found the applicant was validly notified of the Delegate’s decision – whether finding’s made by the Authority were illogical or irrational  – 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 – Safe Haven Enterprise Visa - where Immigration Assessment Authority affirmed decision of first respondent that applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 - where certain grounds raised by applicant seek impermissible merits review - whether the Authority erred by making a finding that was illogical or irrational – found the Authority’s reasoning was clear and intelligible – whether the Authority erred by failing to comply with s 473DD of the Act – found the Authority considered both limbs of s 473DD(b) before considering s 473DD(a) and provided clear reasons as to why it was not satisfied the new information met the criteria - found no jurisdictional error – application dismissed.

MIGRATION – Protection Visa – Where there was no material which support a finding that the Applicant was wholly or substantially reliant on another family member for financial, psychological or physical support – Where the Tribunal made no error in its conclusion that the Applicant should not be granted a visa on the basis that he met the same family unit criterion – Where the Tribunal did not act unreasonably in its assessment of the material because there was an evident and intelligible justification for its finding – Where the Tribunal only had to consider the country information where relevant – Application dismissed.

MIGRATION – protection visa – Administrative Appeals Tribunal – applicant being the son of the applicant in CTW18 v Minister – applicant making no protection claims of his own.

MIGRATION – protection visa – Administrative Appeals Tribunal – citizen of Malaysia – applicant claiming harm from his wife’s family for reasons of religion – Tribunal finding he could obtain effective police protection or reasonably relocate – no jurisdictional error disclosed.

MIGRATION – application for judicial review – Protection (subclass 866) visa - where Administrative Appeals Tribunal affirmed decision of the first respondent – where certain grounds raised by applicant entirely unparticularised – where certain grounds raised by applicant do not assert any jurisdictional error – found no jurisdictional error on behalf of the Tribunal – application dismissed.

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 – where grounds raised by applicant entirely unparticularised – oral claims made at hearing – found Authority had regard to relevant information and circumstances – found no jurisdictional error on behalf of the Authority.

MIGRATION – Subclass 457 (Temporary Work (Skilled)) visa – review of Administrative Appeals Tribunal decision – no approved nomination at the time the applicant made application for merits review – whether the decision to refuse the visa application was a Part 5-reviewable decision pursuant to s 338 of the Migration Act 1958 (Cth) – whether the Tribunal had jurisdiction to undertake a merits review of the visa refusal decision – whether the applicant had standing to challenge decisions relating to the nominator’s application for approval as a standard business sponsor – futility – application dismissed

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 – consideration of the Authority’s application of s 473DD of the Migration Act 1958 (Cth) – found that it could not be inferred that the requisite assessment of the new information occurred – found the Authority conflated s 473DD(b)(i) and (ii) - found jurisdictional error – application allowed.

INDUSTRIAL LAW – general protections –adverse action – whether the applicant worked unreasonable additional hours within the meaning of s 62 of the Fair Work Act 2009 (Cth) – whether the applicant worked overtime within the meaning of the Graphic Arts, Printing and Publishing Award 2020 ––whether the first respondent failed to pay the applicant overtime rates – consideration of the principles of set-off and restitution based on common mistake – consideration of the applicant’s classification under the Award – consideration of the kind of work and duties which constituted the major and substantial part of the applicant’s employment – whether adverse action taken against applicant – reverse onus not discharged by employer in relation to two of six instances of adverse action - contravention of s 340(1) of the Fair Work Act 2009 (Cth) established - found accessorial liability of the second and third respondent for the two established instances of adverse action.

HUMAN RIGHTS – COVID -leave granted to bring proceedings against employer – leave to bring proceedings against occupier refused

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.

BANKRUPTCY – application for review of a registrar’s decision – where application for review of registrar’s decision made out of time - hearing de novo of creditor’s petition - where the Court does not have power to make certain orders sought by applicant – consideration of the requirements under s 52 of the Bankruptcy Act 1966 (Cth) to make a sequestration order - whether service of the Petition and Amended Petition was effected -  found jurisdictional pre-requisites met – application dismissed.

MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision made by the Immigration Assessment Authority (Authority) affirming decision not to grant applicant a Temporary Protection visa – whether Authority failed to properly consider a claim – whether the Authority erred in finding there had been a variation in the applicant’s claims for protection – application dismissed.

MIGRATION – Judicial review – student visa – whether Applicant was a genuine temporary entrant under clause 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) – no error in reasons of the Tribunal – application dismissed.

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal denied procedural fairness to the applicant – whether the Tribunal failed to consider applicant’s circumstances – where oral reasons delivered by the Tribunal – no jurisdictional error established – application dismissed.

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – request for an adjournment – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to consider relevant information – refusal of adjournment request – no jurisdictional error.

MIGRATION - application for judicial review – Protection (subclass 866) visa - where Administrative Appeals Tribunal affirmed decision of the first respondent - whether Tribunal failed to consider whether the applicants’ families opposed their marriage because it was interfaith - where certain grounds raised by applicants seek impermissible merits review – found no jurisdictional error on behalf of the Tribunal – application dismissed.

MIGRATION – protection visa – 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 – applicant’s reasons for the delay were not satisfactorily explained – grounds of judicial review poorly particularised - very weak prospects of success of the substantive application – not satisfied it is in interests of the administration of justice to grant an extension of time -application for extension of time dismissed.

BANKRUPTCY – Procedural - final hearing date fixed

MIGRATION – Administrative Appeal Tribunal – protection visa  – Refugee Convention  – particular social group –  learning disability – well–founded fear of persecution not established – real risk of significant harm not established – no jurisdictional error. PRACTICE AND PROCEDURE – admissibility of new evidence – relevance – limited probative value – danger to mislead or confuse – ss 55 and 135 of Evidence Act 1995 (Cth) – discretion to exclude – inadmissible evidence

MIGRATION – Protection 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 r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

MIGRATION – jurisdictional error – incorrect information in visa application – cancellation decision –Administrative Appeals Tribunal – alleged failure to give invitation to attend Tribunal hearing – application dismissed.

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider mandatory factors or relevant considerations – whether the Tribunal failed to consider the first applicant’s medical condition – whether the Tribunal erred by sending a second hearing invitation letter to the applicants’ representative, rather than to the applicants directly – no jurisdictional error – application dismissed.

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal was required to put information to the applicant pursuant to s 424A of the Migration Act 1958 (Cth) – whether the Tribunal’s decision was illogical or irrational – whether the Tribunal member was biased – whether the Tribunal relied upon country information which included incorrect or false information – no jurisdictional error – application dismissed.

MIGRATION – Protection 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 – judicial review – application for extension of time – dismissal for non-appearance – r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

INTELLECTUAL PROPERTY – application for summary dismissal of proceeding based on claims for trade mark infringement – whether applicant has reasonable prospects of successfully establishing that any one or more of the respondents used in Australia as a trade mark in the course of trade a name that forms part of the registered trade marks owned by the applicant – proceeding dismissed.

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – whether the Authority made jurisdictional errors in its consideration of whether the applicant would face a real chance of serious harm – whether the Authority failed to consider the applicant’s chance of harm in the reasonably foreseeable future – no jurisdictional error – 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).

MIGRATION – application for judicial review – decision of Immigration Assessment Authority – whether Authority misapplied or unreasonably failed to exercise the power in s 473DD of the Migration Act 1958 (Cth) – whether Authority failed to consider all relevant country information concerning conditions for returnees in Sri Lanka – whether the Authority failed to correctly apply the real chance test – no jurisdictional error – application dismissed with costs