Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor v. Montgomery
Case No.
S192/2021
Case Information
Catchwords
Constitutional law – Aliens power – Immigration detention – Indigenous Australians – Where applicant born in and citizen of New Zealand and not Australian citizen – Where applicant's parents and ancestors not Aboriginal Australian or Torres Strait Islanders – Where applicant granted visa to live in Australia in 1997 – Where Mununjali people Indigenous society existing in Australia since prior to 1788 – Where applicant identifies as member of Mununjali people, recognised by Mununjali elders and by Mununjali traditional law and customs as such – Where, in 2018, applicant's visa cancelled – Where in 2019, applicant taken into immigration detention – Where, in Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3, majority of High Court held Aboriginal Australian who satisfies tripartite test identified in Mabo v Queensland (No 2) (1992) 175 CLR 1 beyond reach of aliens power in s 51(xix) of Constitution – Where applicant commenced proceedings in Federal Court of Australia, relevantly seeking declaration not alien within meaning of s 51(xix) following Love/Thoms – Whether decision in Love/Thoms should be overturned – Whether applicant satisfies tripartite test despite not being biologically descended from Indigenous people – Whether applicant alien.
Courts – Jurisdiction – Appeal from single judge of Federal Court of Australia – Habeas corpus – Competent court – Where appellate jurisdiction of Federal Court defined by s 24(1)(a) of Federal Court of Australia Act 1976 (Cth) – Where cause removed was appeal to Full Court of Federal Court from orders of single judge – Where single judge exercised original jurisdiction, relevantly issuing writ of habeas corpus – Whether appeal lies from order for issue of writ of habeas corpus.
Documents
29/11/2021 Hearing (Single Justice, Canberra by video-connection)
03/12/2021 Cause Removed
28/01/2022 Written submissions (Appellants and Attorney-General of the Commonwealth, intervening)
28/01/2022 Chronology (Appellants)
05/04/2022 Amended written submissions (Respondent)
09/03/2022 Written submissions (Attorney-General for the State of Victoria, intervening)
09/03/2022 Written submissions (Northern Land Council, seeking leave to intervene)
09/03/2022 Written submissions (National Native Title Council, seeking leave to intervene)
09/03/2022 Written submissions (Australian Human Rights Commission, seeking leave to intervene)
25/03/2022 Reply
06/04/2022 Hearing (Full Court, Canberra) (Audio-visual recording)
06/04/2022 Outline of oral argument (Appellants and Attorney-General of the Commonwealth, intervening)
06/04/2022 Outline of oral argument (Respondent)
06/04/2022 Outline of oral argument (National Native Title Council, intervening)
07/04/2022 Hearing (Full Court, Canberra) (Audio-visual recording)
07/04/2022 Outline of oral argument (Attorney-General for the State of Victoria, intervening)
07/04/2022 Outline of oral argument (Northern Land Council, intervening)
07/04/2022 Outline of oral argument (Australian Human Rights Commission, intervening)
28/07/2022 Notice of discontinuance (Appellants)
Tu'uta Katoa v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor
Case No.
S135/2021
Case Information
Catchwords
Administrative law – Judicial review – Writ of certiorari – Writ of mandamus – Where plaintiff holder of visa cancelled by Minister pursuant to s 501(3)(b) of Migration Act 1958 (Cth) – Where plaintiff applied for extension of time, pursuant to s 477A(2) of Migration Act, seeking review of Minister's decision– Where application for extension of time was refused by judge of Federal Court of Australia – Whether judge erred in assessing, in respect of plaintiff's proposed second ground of review of Minister's decision, whether plaintiff's claim had reasonable prospects of success so as to justify extension of time pursuant to s 477A(2) of the Migration Act – Proper test for extension of time.
Documents*
17/09/2021 Application for Constitutional Writs
19/11/2021 Submitting appearance (Second defendant)
09/12/2021 Hearing (Single Justice, Canberra by video-connection)
03/02/2022 Written submissions (Plaintiff)
03/02/2022 Chronology (Plaintiff)
04/03/2022 Written submissions (First Defendant)
16/03/2022 Reply
10/05/2022 Hearing (Full Court, Canberra) (Audio-visual recording)
10/05/2022 Outline of oral argument (Plaintiff)
10/05/2022 Outline of oral argument (First Defendant)
17/08/2022 Judgment (Judgment summary)
Hill v. Zuda Pty Ltd as trustee for The Holly Superannuation Fund & Ors
Case No.
P48/2021
Case Information
Lower Court Judgment
23/04/2021 Supreme Court of Western Australia (Buss P, Murphy & Mitchell JJA)
Catchwords
Superannuation – Self-managed superannuation fund (“SMSF”) – Binding death benefit nomination – Where reg 6.17A(4), (6) and (7) of Superannuation Industry (Supervision) Regulations 1994 (Cth), provided for requirements for validity of binding death benefit requirement in respect of superannuation funds – Where reg 6.17A authorised by multiple provisions, relevantly, ss 31, 55A and 59 of Superannuation Industry (Supervision) Act 1993 (Cth) – Where applicant child and dependant of deceased person – Where deceased person established SMSF with deceased person’s partner as sole members – Where cl 5 and 6 of SMSF trust deed made binding death benefit nomination, requiring trustee to distribute whole of deceased member’s balance to surviving member – Where applicant argued cl 5 and 6 of deed did not constitute valid binding death benefit notification due to non-compliance with reg 6.17A(6) and (7) of Regulations and claimed portion of deceased person’s account – Where claim dismissed and appeal to WA Court of Appeal dismissed – Whether reg 6.17A(4), (6) and (7) of Regulations apply to SMSF.
Courts – Comity – Intermediate appellate courts – Where WA Court of Appeal held principle of comity required it to follow decision of SA Full Court in Cantor Management Services Pty Ltd v Booth [2017] SASCFC 122 – Where SA Full Court held reg 6.17A did not apply to SMSF because s 59 of Act did not apply to SMSF but did not consider ss 33 or 55A – Whether intermediate appellate court bound to follow decision of other intermediate appellate court where no consideration of relevant aspect of legislation.
Documents*
12/11/2021 Hearing (SLA, Canberra and remote hearing)
26/11/2021 Notice of appeal
07/01/2022 Written submissions (Appellant)
07/01/2022 Chronology (Appellant)
04/02/2022 Written submissions (Respondents)
25/02/2022 Reply
05/04/2022 Hearing (Full Court, Canberra) (Audio-visual recording)
05/04/2022 Outline of oral argument (Appellant)
05/04/2022 Outline of oral argument (Respondents)
15/06/2022 Judgment (Judgment summary)
Delil Alexander (by his litigation guardian Berivan Alexander) v. Minister for Home Affairs & Anor
Case No.
S103/2021
Case Information
Catchwords
Constitutional law – Legislative power – Citizenship – Cessation of Australian citizenship – Where s 36B of Australian Citizenship Act 2007 (Cth) provided Minister may make determination person ceases to be Australian citizen if Minister satisfied person dual citizen and person engaged in terrorist activities – Where plaintiff Australian citizen by birth and also Turkish citizen – Where, in 2013, plaintiff entered Al Raqqa Province of Syria – Where Al Raqqa province declared area for purposes of terrorism offences – Where, in 2018, plaintiff arrested and incarcerated by Syrian Government – Where plaintiff found guilty of terrorism offences against Syrian Penal Code on basis of evidence allegedly procured by torture – Where Australian Security and Intelligence Organisation advised Minister plaintiff likely engaged in foreign incursions and recruitment by remaining in declared area – Where, on 2 July 2021, Minister determined plaintiff ceased to be Australian citizen under s 36B – Where plaintiff pardoned under Syrian law, but remains in indefinite detention because no lawful right to be in Syria, cannot be removed to Turkey because citizenship under different name, and cannot be removed to Australia because of citizenship cessation – Whether s 36B within scope of aliens power in s 51(xix) of Constitution, defence power in s 51(vi) of Constitution, external affairs power in s 51(xxix) of Constitution or implied nationhood power – Whether implied constitutional limitation on legislative power preventing “people of Commonwealth” from being deprived of their status as such – Whether constitutionally prescribed system of representative government incompatible with s 36B, which operates to permanently disenfranchise Australian citizens – Whether s 36B impermissibly disqualifies plaintiff from eligibility to sit as member of Parliament, contrary to ss 34 and 44 of Constitution – Whether s 36B punitive and unlawful exercise of judicial power by Parliament – Whether s 36B within legislative competence of Commonwealth Parliament.
Documents*
23/07/2021 Application for constitutional writs
23/07/2021 Notice of Constitutional Matter (Plaintiff)
23/07/2021 Application for directions
11/10/2021 Hearing (Single Justice, Canberra and video connection)
22/10/2021 Amended Special Case
26/10/2021 Order referring matter to the Full Court
12/11/2021 Written submissions (Plaintiff)
10/12/2021 Written submissions (Defendants)
24/01/2022 Reply
16/02/2022 Hearing (Full Court, Canberra) (Audio-visual recording)
16/02/2022 Outline of oral argument (Plaintiff)
16/02/2022 Outline of oral argument (Defendants)
17/02/2022 Hearing (Full Court, Canberra) (Audio-visual recording)
08/06/2022 Judgment (Judgment summary)
Fairbairn v. Radecki
Case No.
S179/2021
Case Information
Lower Court Judgment
11/12/2020 Family Court of Australia (Ainsley-Wallace, Ryan & Aldridge JJ)
Catchwords
Family law – De-facto relationship – Breakdown – Proper test for determination of breakdown of de-facto relationship – Where s 90SM of Family Law Act 1975 (Cth) provided, in property settlement proceedings after breakdown of de-facto relationship, court may make order altering interest of parties to de-facto relationship in property – Where, in 2005 or 2006, applicant and respondent entered into de-facto relationship – Where basis of relationship living together on domestic basis with clear understanding as to separation of each other’s financial affairs and property interests – Where, in 2015, applicant began to suffer from rapid cognitive decline – Where applicant incapable of managing own affairs and, in 2018, New South Wales Trustee & Guardian appointed to act for applicant – Where Public Guardian placed applicant into aged care facility – Where respondent did not provide financial support for applicant, continued to reside in applicant’s property and prevented Trustee from selling applicant’s property – Where Trustee commenced proceedings against respondent in Federal Circuit Court seeking order for property settlement pursuant to s 90SM, claiming applicant and respondent’s de-facto relationship had broken down – Where primary judge declared de-facto relationship had broken down no later than 25 May 2018 – Where respondent successfully appealed to Full Family Court – Whether basis of applicant and respondent’s de-facto relationship no longer existed – Whether de-facto relationship had broken down.
Documents*
15/10/2021 Hearing (SLA, Canberra by video connection)
29/10/2021 Notice of appeal
03/12/2021 Written submissions (Appellant)
03/12/2021 Chronology (Appellant)
14/01/2022 Written submissions (Respondent)
04/02/2022 Reply
08/03/2022 Hearing (Full Court, Canberra) (Audio-visual recording)
08/03/2022 Outline of oral argument (Appellant)
08/03/2022 Outline of oral argument (Respondent)
11/05/2022 Judgment (Judgment summary)