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Federal court judgments

Every Issue

Cite as: September 2015 89 (9) LIJ, p.56

Administrative Appeals Tribunal
Appeal on question of law – review of AAT decisions by judicial review Workers compensation – “injury”

In May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93 (30 June 2015) and Haritos v Commissioner of Taxation [2015] FCAFC 92 (30 June 2015) a Full Court of five members concluded the right to appeal to the Federal Court from the AAT given by s44 of the AAT Act 1975 (Cth) was not to be narrowly confined and was an ample provision enabling appeals on questions of substance not form. Consideration of reviewing AAT decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Review in Haritos of what is a “question of law”; review in May as what is an “injury”.

Administrative law
“Decision under an enactment”

In Minister for Health v Nicholl Holdings Pty Ltd [2015] FCAFC 73 (28 May 2015) a Full Court concluded that the “Preliminary Assessment of a District Workforce Shortage” in the process by which overseas trained doctors were approved to work in “bulk-billing” medical practices under the Health Insurance Act 1973 (Cth) was a precursor to a decision under an enactment for s3 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and not reviewable.

Citizenship
Conferral – residence requirement – whether spouse must reside in Australia for entire time

Minister for Immigration and Border Protection v Han [2015] FCAFC 79 (4 June 2015) a Full Court concluded the AAT did not err in holding that it was not necessary for an applicant for Australian citizenship to establish that their spouse was an Australian citizen for the entire time of the residence requirements, and it was sufficient that the spouse be a citizen at the time of application.

Estoppel
Jurisdiction – bankruptcy

In Truthful Endeavour Pty Ltd v Condon [2015] FCAFC 70 (7 May 2015) a Full Court reviewed authority as to its exclusive jurisdiction over matters arising under the Bankruptcy Act 1966 (Cth). The Court concluded the decision in Gorkowski v Turner [2014] VSC 200 (which concluded the Victorian Supreme Court had jurisdiction to determine a dispute as to the assets of a former bankrupt held on trust by his trustee because only equitable title was in issue and no issue under the Bankruptcy Act arose) was in error.

Legal practitioners
Advocate’s immunity

Sims v Chong [2015] FCAFC 80 (5 June 2015) a Full Court concluded the primary judge had erred in dismissing a proceeding against a lawyer for unsatisfactory advice on the ground of advocate’s immunity. Consideration of advocate’s immunity.

Migration
Visas – cancellation of visas on character grounds

In Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 (12 June 2015) a Full Court in a joint judgment doubted that the decision in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 which concluded the Minister should assess the risk to the community if the visa holder stayed in Australia was correctly decided.

Migration
De facto relationship

In SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69 (11 June 015) a Full Court in a joint judgment concluded there was no requirement under s5C of the Migration Act 1958 (Cth) that a couple live together before they enter into a de facto relationship.

Migration
“Right” to enter country

In SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77 (4 June 2015) a Full Court concluded the primary judge had erred in construing the term “right to enter and reside” in s363 of the Migration Act 1958 (Cth) as involving considerations of “practical reality and fact” as this had been discredited since NAGV and NAGW of 2002 v MIMIA [2005] HCA 6.

Practice and procedure
Summary dismissal of judicial review proceedings at first mention date

In SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88 (19 June 2015) and Shrestha v MRT [2015] FCAFC 87 (19 June 2015) a Full Court concluded the primary judge (and the FCCA) had erred in summarily dismissing proceedings at the first court mention date and where the applicant wished to file further material.

Thomas Hurley is a Victorian barrister, ph 9225 7034, email tvhurley@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au.

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