Case Law Updates

Federal Court. Can a person come within the exception under s 22(9)(d) of the Australian Citizenship Act 2007 (Cth) "simply by establishing some form of connection with Australia or with Australians or with something that is connected to Australia"? Is the discretion in s 22(9) broad and multifactorial? Is a person's expression of desire to live in Australia an indication of a current connection?

Federal Court. Could r 5.19(3)(d)(i) of the Migration Regulations 1994 (Cth) only be satisfied if the nominator would not operate at a loss as a result of employing the nominee for 2 years? Was the salary of another nominee a prohibited consideration under r 5.19(3)(d)(i)? If an employment contract makes no mention on whether the terms and conditions of the person’s employment exclude the possibility of extending the period of employment, does that amount to a failure to satisfy r 5.19(3)(d)(ii)?

Federal Court. Was the view of the Australian government and community that sexual and violence-related crimes are "very serious" (as 8.1.1(1)(a) of Direction 90 records) something that was apt to inform any assessment of the nature or seriousness of the Applicant's criminal history, in circumstances where his offending was neither sexual nor violence-related?

Federal Court. In the context of s 34(2)(c) of the Citizenship Act, were the Applicant’s "potential subjection to prolonged or indefinite detention, or his potential removal from Australia in breach of non-refoulement obligations ... matters that might properly be described as “direct consequence[s]” of revocation, of which the subject matter, scope or purpose of the Citizenship Act implicitly required that account be taken"? Does the same answer apply to the exercise of the discretion under s 34(2)? Can a visa that does not exist be cancelled?

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"?