Judgments

PRACTICE AND PROCEDURE – application for interim injunction or interlocutory relief – whether applicant has made out prima facie case – balance of convenience.

PRACTICE AND PROCEDURE – application to extend interim non-publication or non-disclosure order in respect of information in affidavit of party – whether information was confidential – relevance of confidentiality clause in agreement between parties as alternative mechanism to prevent disclosure of information - whether order necessary to prevent prejudice to proper administration of justice.

MIGRATION - Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa - Application for judicial review – Application dismissed. 

MIGRATION – Protection (Class XA) (Subclass 866) visa - Application for judicial review –Related proceeding – Proceedings heard concurrently – Reliance on country information – Typographical errors – No jurisdictional error – Application dismissed.

MIGRATION – application for judicial review – decision of the ART to not grant Protection (Subclass 866) Visa – whether the Applicant was denied procedural fairness – whether the Tribunal lawfully exercised its powers under s 106(1) of the Administrative Review Tribunal Act 2024   – – jurisdictional error established – application granted. 
 

MIGRATION – judicial review – applicant citizen of Sri Lanka – application for protection visa – fear of persecution due to Tamil ethnicity – fear of Sri Lankan authorities due to perceived association with Liberation Tigers of Tamil Eelam – claims of monitoring and specific targeting by the Sri Lankan Criminal Investigation Department – late supply of information by the applicant in connection with review refused by the IAA – IAA found no exceptional circumstances justifying consideration of the new information - IAA found inconsistencies in the applicant’s account – IAA not satisfied the applicant had a well-founded fear of persecution – IAA deemed applicant not to have met complimentary protection criteria – no jurisdictional error on the part of the IAA – application dismissed.

MIGRATION – judicial review – decision of Administrative Appeals Tribunal cancelling temporary protection visa – clarification or change in understanding of law by High Court concerning constitutional validity of indefinite detention between date of Tribunal’s decision and date of hearing of judicial review application – whether Tribunal failed to consider or deal with submission or contention concerning indefinite detention based on understanding of law at time of Tribunal’s decision – whether Tribunal failed to consider or deal with submission or contention concerning indefinite detention based on understanding of law at time of hearing of judicial review application – whether error of Tribunal was material – whether assessment of materiality affected by clarification or change in understanding of the law 

INTELLECTUAL PROPERTY – practice and procedure – application for access to submissions that were filed in support of an application for the release of a Harman Obligation in relation to documents the respondent produced under a compulsory process – where the submissions describe the contents of the documents that have been produced – where the applicant for access does not attempt to show any special circumstances for the release of the Harman Obligation in relation to the information contained in the documents the contents of which the submissions disclose – no special circumstances shown – no other reasons justifying the granting of access shown – application for access refused.  

MIGRATION – Protection (Class XA) (Subclass 866) visa - Application for judicial review –Related proceeding – Proceedings heard concurrently – Reliance on country information – Typographical errors – No jurisdictional error – Application dismissed. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – where the Tribunal failed to comply with s 424A - whether there was an independent, alternative basis (or separate stream of reasoning) - no jurisdictional error established – application dismissed.  

MIGRATION – Safe Haven Enterprise Visa – application for judicial review of decision of the then Immigration Assessment Authority – whether the Authority was legally unreasonable in failing to consider or exercise the power to invite new information pursuant to s.473DC and/or in its findings of inconsistencies and interpretation of country information – application dismissed with costs. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant student visa – whether Tribunal properly assessed available information in considering whether applicant satisfied Sch 2 cl 500.212 - no jurisdictional error established – application dismissed.  
 

MIGRATION – whether the (then) Administrative Appeals Tribunal erred in not granting the applicant a protection visa – where the applicant claims the Tribunal did not consider their evidence, unfairly assessed their credibility, and that they were denied procedural fairness – application dismissed 
 

INDUSTRIAL LAW – Alleged contravention of general protections – termination of employment – reason for termination of employment – whether because of exercise of workplace right in relation to alleged underpayment – whether fraud or misappropriation by employee – whether because of industrial activity by or on behalf of the employee – whether reason for termination of employment prohibited reason  PRACTICE AND PROCEDURE – Pleading of accessorial liability – notice to produce – whether to set aside subpoena – whether leave to file further affidavit concerning alleged misappropriation of cash – relevance of truth or falsity of alleged operative or substantial reason  

MIGRATION – regional employer nomination (permanent) (class RN) (subclass 187) visa – where delegate refused to grant the applicants visas – application for review of decision of the (then) Administrative Appeals Tribunal (Tribunal) lodged out of time – application for extension of time – where Tribunal affirmed delegate’s refusal – where applicant failed to satisfy cl 187.233 of the Migration Regulations 1994 (Cth) – applicant not subject of an approved nomination – no arguable case of jurisdictional error – application for extension of time dismissed 

PRACTICE AND PROCEDURE – Artificial Intelligence – conduct of legal practitioners before the Court – citation of cases which do not exist – case citations generated by an artificial intelligence program – duties to the Court – practitioner referred to Legal Practice Board of Western Australia – personal costs order made against legal practitioner – application of s 486E and s 486F of Migration Act 1958 (Cth). 
 

MIGRATION – judicial review – Administrative Appeals Tribunal – whether the Tribunal wrongly considered the applicant’s circumstances – whether the Tribunal erred in finding the applicant was not a genuine temporary entrant – No jurisdictional error – application dismissed 

 MIGRATION – application for extension of time – judicial review – Higher Education Sector (subclass 573) visa cancellation– one day late – inadequate explanation – no arguable case of jurisdictional error – application dismissed 

MIGRATION – application for judicial review – decision of the AAT to not grant Protection (Subclass 866) Visa – whether the Tribunal misapplied the law–whether the Tribunal applied the wrong legal test– whether the Tribunal ignored relevant material – whether the Tribunal considered irrelevant material – whether the Tribunal was unreasonable – no jurisdictional error established – application dismissed 

MIGRATION – judicial review – student visa – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal failed to comply with section 54 of the Migration Act – whether the Tribunal misconstrued the Regulations – no jurisdictional error found – application dismissed 

MIGRATION – application for judicial review –employer nomination (subclass 186) visa – refusal due to no approved nomination – application for review of registrar’s summary dismissal – extension of time –inadequate explanation for delay – no reasonably arguable error – futility of remittal – application dismissed 

PRACTICE AND PROCEDURE – COSTS – Where Minister sought costs significantly in excess of amount provided in costs schedule to the Court Rules in respect of migration proceedings (scale amount) – where detailed evidence prepared and filed for Minister was required to meet ground of review – where applicant opposed costs in excess of scale amount including on basis that to seek such costs was contrary to model litigant obligation of Minister – role of Court is not to undertake detailed costs assessment   

MIGRATION – application for judicial review – regional employer nomination (subclass 187) visa – refusal due to no approved nomination – application for review of registrar’s summary dismissal – extension of time –inadequate explanation for delay – no reasonably arguable error – futility of remittal – application dismissed 

INDUSTRIAL LAW – Imposition of penalty for contravention of s 716(5) of the Fair Work Act 2009 – failure to comply with compliance notice – lack of cooperation – no contrition – no corrective action  

BANKRUPTCY – application to review a sequestration order made by a registrar – de novo hearing of creditor’s petition – alleged act of bankruptcy being failure to comply with a bankruptcy notice –– whether creditors petition invalid for non-compliance with rules – where no affidavit of debt or affidavit of search - whether bankruptcy notice meets the essential requirements of the Act – whether bankruptcy notice liable to mislead – where interest claimed on debt calculated by reference to collateral agreement – whether bankruptcy notice conflates separate claims – whether debtor is solvent – debtor entitled to relief - bankruptcy notice and sequestration order to be set aside

PRACTICE AND PROCEDURE – Where the applicant failed to appear at a listing before the Court – 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). 

INDUSTRIAL LAW – where the applicant claims that the respondents breached sections 45, 536, 323, 343, 345 of the Fair Work Act 2009 (Cth) and the Hospitality Industry (General) Award 2020 – finding that the respondent contravened section 45 of the Act by failing to pay the applicant under clause 11.5 of the Award – finding that the respondent contravened section 536 of the Act by failing to provide a payslip with the required information within the required time frame – whether the second to fourth respondents were ‘knowingly involved’ in any contraventions – declarations made. 

INDUSTRIAL LAW – Practice and procedure – application for summary judgment of two separate proceedings in which the applicant claims the respondent contravened s 340(1), s 344, s 351(1), and s 352 of the Fair Work Act 2009 (Cth) – whether applicant has articulated a reasonably arguable case – whether there are no reasonable prospects the applicant will be able to formulate a reasonably arguable case - whether in any event on the material before the Court the applicant does not have reasonable prospects of succeeding on any of his claims for relief – proceedings dismissed.   HUMAN RIGHTS – Practice and procedure – application for summary judgment in proceeding where the applicant alleges he suffered from a disability but the respondent employer failed to make adjustments and for that reason discriminated against the applicant contrary to s 15(2) of the Disability Discrimination Act 1992 (Cth) – whether there are no reasonable prospects that the applicant will be able to formulate a reasonably arguable case based on unlawful discrimination - whether in any event on the material before the Court the applicant does not have reasonable prospects of succeeding on any claim that the respondent engaged in unlawful discrimination by failing to make adjustments for the applicant – proceeding dismissed. 
 

MIGRATION – Judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – whether Authority erred in finding that information was not relevant within meaning of s 473DC(1) – whether Authority erred in not being satisfied that new information was credible within meaning of s 473DD(b) 

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal misapplied s 116 of the Migration Act 1958 (Cth) – whether the applicant was given the requisite opportunity to present his case before the Tribunal – incorrect reference to a legislative provision regarding a non-disclosure certificate – materiality – application dismissed 
 

MIGRATION – application for extension of time – judicial review – protection visa refusal – 315 days late – inadequate explanation – no arguable case of jurisdictional error – application dismissed 
 

INTELLECTUAL PROPERTY – Final relief – scope of delivery up orders - whether applicant’s proposed form of order, if made, might call for the identification and destruction of files or data beyond the files and data that are the subject of findings made in the reasons for judgment in relation to which the delivery up orders are intended to be made – delivery up orders to be made in the form proposed by respondents. 

PRACTICE AND PROCEDURE – Application for leave to re-open – relevant principles – finding that the interests of justice are better served by granting leave to re-open in the particular circumstances of the case – leave to re-open granted on condition of certain Court fees being paid by the first respondent – referral of the matter for pro bono assistance. 

INDUSTRIAL LAW – FAIR WORK – responsible franchisor entity – alleged contravention of s 558B(1)(d) of the Fair Work Act 2009 (Cth).

PRACTICE AND PROCEDURE – application in a proceeding to set aside subpoenas – whether applicant has demonstrated a legitimate forensic purpose in seeking production of documents – whether the documentation sought have an apparent relevance to issues on the summary judgment application - categories in the subpoenas amended.

MIGRATION – decision of the Administrative Appeals Tribunal – Protection (Subclass 866) visa – where the Tribunal refused to adjourn the hearing – where the Tribunal refused to exercise its discretion to postpone its decision making  – concerns over the authenticity of documents provided from Iran – grounds of judicial review have no merit –  application dismissed with costs. 

INDUSTRIAL LAW – Application for the imposition of pecuniary penalties – where complaints made by employees themselves involved in deceptive practices after falling out with respondent – where orders made accordingly. 

BANKRUPTCY – Failure to lodge a Statement of Affairs – Bankrupt for over 10 years – Where Trustee has taken reasonable steps to notify the bankrupt – Where Trustee has taken reasonable steps to investigate creditors – Whether the Court ought to exercise its discretion.   

PRACTICE AND PROCEDURE – Application for interlocutory injunction to restrain respondent from terminating the applicant’s employment – whether prima facie case is sufficiently strong – whether balance of convenience favours grant of interlocutory relief – application for interlocutory relief dismissed. 

MIGRATION – Whether Tribunal erred by failing to provide Review Medical Officer of the Commonwealth with previous Medical Officer opinion and costs estimate – whether failure to comply with s 359A of the Migration Act including by failing to provide copy of PIC 4005 to applicants. 

MIGRATION – Costs – application for costs sought above the scale following a final hearing – fixed costs order made.

MIGRATION – judicial review application – decision of Administrative Appeals Tribunal refusing to grant partner visa – whether applicant provided bogus document - construction of “in relation to” in PIC 4020(1) – no jurisdictional error established – application dismissed.   

 MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing Medical Treatment visa – whether Sch 2 cl 602.215 should be applied – whether applicant genuinely intended to stay temporarily in Australia – - Tribunal failed to consider relevant information - no jurisdictional error established – application dismissed.  

MIGRATION – Protection visa refusal – judicial review of decision of Immigration Assessment Authority – suspected political group involvement – where Authority decided not to consider new information – where Authority found applicant’s political involvement low-level – no real chance of harm found – whether new information was credible personal information – whether Authority misunderstood or misapplied s 473DD – error established – whether error material – writs issued 

MIGRATION – judicial review application – decision of Administrative Appeals tribunal refusing grant of protection visa - whether Tribunal misunderstood the applicant’s evidence – no jurisdictional error established – 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 delegate and the Tribunal disregarded the persecution the applicant faced from the Chinese authorities on account of his support for Hong Kong – whether the Tribunal failed to consider the matters raised in the applicant’s written statement – no jurisdictional error – application dismissed. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – no jurisdictional error established – 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 – where the applicant asserts an unspecified jurisdictional error – whether the Tribunal’s conclusion was based on personal opinion rather than fact – no jurisdictional error – application dismissed. 

MIGRATION – application for judicial review – protection visa – application filed out of time – whether an extension of time should be granted – length of delay and explanation for that delay – any prejudice caused – merits of the underlying application for review – application dismissed. 

MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa - whether Tribunal’s credibility findings were unreasonable – no jurisdictional error established – 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 did not adequately consider or give sufficient weight to evidence and claims presented – whether the Tribunal made errors in its fact-finding process by not properly investigating or questioning the accuracy of the applicant’s claims – no jurisdictional error – application dismissed. 

MIGRATION-Decision of Administrative Appeals Tribunal – refusal of student visa – whether failure to consider evidence – whether findings legally unreasonable – impermissible merits review - application dismissed