Case Law Updates

Federal Court (Full Court). Do the terms "at the time of the birth” in s 16(2)(a) of the Australian Citizenship Act 2007 (Cth) mean the moment the child “physically emerges from the mother or gestational carrier”, instead of a period of indefinite duration?

Federal Court. Regulation 2.08A is the regulatory mechanism by which certain applicants may be added to an existing permanent visa application. Did r 2.08A require the Minister to "ascertain or be satisfied that the additional applicant was indeed a ‘dependent child’ of the original applicant"? Must the ‘statement’ required by r 2.08A(1)(c) impliedly be one made in good faith?

Federal Court (Full Court): In SZMTA, HCA held that: error was jurisdictional only if it was material, that is if a different decision could have been made had the error not been made; materiality is a question of fact of which judicial review applicants bear the onus of proof. In Ibrahim, FCAFC held that it was incumbent on the judicial review applicant to demonstrate what would or could have occurred had the error not been made. In Nguyen, FCAFC, differently constituted, disagreed with that aspect of Ibrahim. Can that division be resolved? Were those cases distinguished here?

Federal Court. Did the balance of convenience strongly favour the grant of an interlocutory injunction in that, although an injunction would cause the respondents inconvenience "in the form of having to retain the applicant in detention at public expense and the need to alter arrangements that have no doubt involved at least some administrative effort", the applicant's ability to remain in Australia and seek protection was at stake?

Federal Court: AAT affirmed non-revocation of visa cancelled under s 501(3A) of the Migration Act 1958. AAT was bound by Direction 65, cl 14.1(2) of which was identical to cl 14.1(2) of Direction 79. Was it necessary for AAT to sever the following part of cl 14.1(2) in order to align that paragraph with s 197: "Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists"? Did AAT misinterpret cl 13.1.1(1)(b), which is identical to cl 9.1.1(1)(c) of Direction 79?

Federal Court (Full Court): is the Minister prohibited from giving natural justice under s 501BA(2) of the Migration Act 1958? If not, but the Minister makes a decision believing he is so prohibited, is that an error? If so, is that error jurisdictional? Did the Minister in fact believe he was not allowed to give natural justice? Was it a jurisdictional error for the Minister not to consider protection and non-protection claims?

Federal Court. Does the High Court's decision in SAAP remain authority for the proposition that "a failure by the Tribunal to comply with either ss 359A or 424A of the Act constitutes a jurisdictional error that results in the invalidity of the Tribunal’s decision", despite Hossain, SZMTA and MZAPC? Should the primary judge have refused the judicial review application on the basis that upholding that application would have no utility, as the error in question was immaterial?

Federal Court. To form a "reasonable suspicion" under to s 189, are officers expected to have detailed knowledge of case law on the concept of 'Aboriginality'? Is it likely that "not all Aboriginal peoples will have the same law and custom governing these issues"? Was the officer's suspicion that the Applicant was a non-Aboriginal unlawful non-citizen reasonable, in circumstances where the 2nd & 3rd limbs of the tripartite test in Mabo (No 2) were satisfied? Are Stewart, EFX17, EPL20, and Sillars distinguishable if s 501CA(3) representations are received within the prescribed period?

Federal Court (Full Court). Can it be said that, in an appeal by way of re-hearing, "in deciding the proper inferences to be drawn from facts undisputed or otherwise found, the appeal court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it"? Is error "limited to showing why or how the trial judge erred in the process or approach that was taken"?

The Full Court of the Federal Court has unanimously held that 'Brown No 2 was wrongly decided and should not be followed'