Case Law Updates

Federal Court (Full Court). Is consideration of a person's health for the purposes of paragraph 9.2(1)(a) of Direction 90 limited to diagnosed conditions? In the absence of express reference to the definition of "family violence" in Direction 90, is it enough to determine that a person is someone else's intimate partner? Was it only for the admin decision-maker to consider whether someone was a member of the Appellant’s family?

Federal Court. Is it for a court to judge, pursuant to s 189 of the Migration Act 1958 (Cth), whether "an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen", "based on the entirety of the evidence before it and not just the evidence that may have been available to the detaining officers"?

Federal Court (Full Court). In determining whether a "claim" estoppel arises, can different grounds of jurisdictional error be seen as separate causes of action or claims arising out of the one decision? In determining whether Anshun estoppel arises, is the principal inquiry "whether the ground of review should have been brought forward in the first proceeding, in the sense that it was unreasonable for the appellant not to have done so"?

Federal Court. Is the production of a certified extract from the Registrar of Births Deaths and Marriages for the State of Victoria evidence of the fact of the birth and of each of the facts stated therein? In determining parentage, did it matter that the child support payments that were required to be made by the claimed father were, in the delegate's view, "low"? Was a Medicare card listing both the claimed father and the Applicant evidence of parentage?

High Court (HCA). Can an intermediate appellate court depart from seriously considered dicta of a majority of the HCA? How should an intermediate appellate court nor a trial judge treat decisions of another intermediate appellate court?

Federal Court. Did the failure of the applicant to point out the defeasibility, pursuant to s 36(3) of the Migration Act 1958 (Cth), of his right to enter the Republic of South Africa (RSA) "obviate the obligation on the decision-maker to make a finding of fact on the materials before it that such a right was currently in existence and not immediately defeasible on return to the RSA"?

Federal Court. Can it be said that "a conclusion as to a person’s citizenship might be made administratively without any passport or other identity documents, just on the basis of an apparently truthful statement by the person (or another, perhaps a parent) as to their place of birth and confirmation by an Australian diplomatic or other source that persons so born acquire that country’s citizenship"?

Federal Court. Could the fact that there was only one bedroom in the couple's residence be ignored by the Tribunal? If the couple was sharing a bed, did this necessarily militate "strongly against the proposition that they were merely sharing a house"? Is what the decision in He has to say about the correct approach to r 1.15A(3) about whether a person is a spouse directly applicable to the position under r 1.09A(3) for the purpose of determining whether a person is a de facto partner?

Federal Court. Should the FCA grant peremptory mandamus, compelling the Minister to grant the Appellant a SHEV? Is consideration of the "national interest" under cl 790.227 "limited to whether or not the appellant poses an unacceptable risk of harm to the Australian community"? May the Minister justify delay where he or she is exhausting his or her rights of appellate review, including by applying to the High Court for special leave to appeal from the FCAFC's decision?

High Court. Is s 36B of the Australian Citizenship Act 2007 (Cth) invalid because it is not supported by a head of Commonwealth legislative power or because it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt?