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?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Is the right of "appeal" under s 44 of the AAT Act confined to “pure” questions of law, instead of mixed questions of fact and law?
Question 2: Do the terms "at the time of the birth” in s 16(2)(a) of the Australian Citizenship Act 2007 (Cth) bear an ordinary meaning?
Question 3: Do the terms "at the time of the birth” in s 16(2)(a) mean the moment the child “physically emerges from the mother or gestational carrier”, instead of a period of indefinite duration?
Question 4: Is the time of physical birth affected by wider social and cultural circumstances existing at that time?
Question 5: Can conduct after birth support an inference as to whether a parental relationship existed at the time of birth, where the conduct after birth forms part of a course of conduct commencing prior to birth?
Question 6: If the facts have been fully found by the Tribunal and there is only one conclusion open on the facts as found by the Tribunal, is it appropriate for this Court in exercising the power under s 44(4) of the AAT Act, to set aside the Tribunal’s decision and make a decision in substitution for that made by the Tribunal, thereby relieving the Tribunal and the parties of the burden of a further hearing?
The FCAFC answered those questions as follows: