CQI18 v Minister for Home Affairs (No 2) [2021] FCA 1427

CQI18 v Minister for Home Affairs (No 2) [2021] FCA 1427

Although the earlier order setting aside the second respondent's decision was intentional and not a slip, it was preferable to replace it with declaratory and injunctive relief because the denial of procedural fairness was material to the second respondent's credibility assessment and the whole review miscarried. The appellant was entitled to costs of the appeal, except for costs of responding to the Minister's interlocutory application, but not to costs below because the successful ground had not been prominent before the Federal Circuit Court; the Minister also should not retain the lower court costs order. No interlocutory injunction restraining removal was granted because there was no...

Jurisdiction
Australia
Judgment Date
15 November 2021
Procedural Posture
Migration Judicial Review Appeal / Post Appeal Orders, Costs, Interlocutory Application to Alter Relief, and Request for Interlocutory Relief Restraining Removal
Outcome
The First Respondent's interlocutory relief was refused. Order 5 of the Court's orders of 28 September 2021 was vacated. Orders 3 and 4 of the Federal Circuit Court were set aside and replaced with an extension of time, injunctive relief, declaratory relief, and a costs order that each party bear its own costs...
Legal Topics
['procedural Fairness' 'independent Merits Review' 'section 46 a Request' 'slip Rule' 'declaratory Relief' 'injunctive Relief' 'removal From Australia' 'costs Discretion']
['administrative Law' 'migration Law' 'practice and Procedure' 'costs'] ['procedural Fairness' 'independent Merits Review' 'section 46 a Request' 'slip Rule' 'declaratory Relief' 'injunctive Relief' 'removal From Australia' 'costs Discretion']

Case Brief

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Procedural Posture

Migration Judicial Review Appeal / Post Appeal Orders, Costs, Interlocutory Application to Alter Relief, and Request for Interlocutory Relief Restraining Removal

Legal Issues

  1. 1 ['Whether the Court should vacate or alter its earlier order setting aside the decision of the Independent Merits Reviewer.' 'Whether declaratory and injunctive relief should be granted in place of the earlier substantive order.' 'Whether the appellant should obtain interlocutory relief restraining his removal from Australia.' 'What costs orders should be made for the appeal and for the Federal Circuit Court proceeding.']

Ratio Decidendi

Although the earlier order setting aside the second respondent's decision was intentional and not a slip, it was preferable to replace it with declaratory and injunctive relief because the denial of procedural fairness was material to the second respondent's credibility assessment and the whole review miscarried. The appellant was entitled to costs of the appeal, except for costs of responding to the Minister's interlocutory application, but not to costs below because the successful ground had not been prominent before the Federal Circuit Court; the Minister also should not retain the lower court costs order. No interlocutory injunction restraining removal was granted because there was no...

Court Disposition

The First Respondent's interlocutory relief was refused. Order 5 of the Court's orders of 28 September 2021 was vacated. Orders 3 and 4 of the Federal Circuit Court were set aside and replaced with an extension of time, injunctive relief, declaratory relief, and a costs order that each party bear its own costs...

Orders

  • ['The relief sought by the First Respondent in the interlocutory application filed on 19 October 2021 be refused.' "The First Respondent pay the Appellant's costs of and incidental to the appeal, including the hearing on 15 November 2021, but excluding costs arising from the Appellant responding to the First...