ELM21 v Minister for Home Affairs [2021] FCA 1604

ELM21 v Minister for Home Affairs [2021] FCA 1604

The Acting Minister’s decision to declare the Interim Measures Request unwarranted was not affected by jurisdictional error. There was no legal unreasonableness, denial of procedural fairness, bias, or material failure to consider evidence, as the applicant’s shifting and unsupported claims about risk and evidence—including the alleged outstanding arrest warrant and sur place claims—were reasonably considered. The Court had no jurisdiction to enforce non-refoulement obligations arising solely under international treaties not incorporated into domestic law.

Jurisdiction
Australia
Judgment Date
18 November 2021
Procedural Posture
Judicial Review Applications; Interlocutory Injunction Applications / Final Judgment in Federal Court Proceedings
Outcome
Applications dismissed; costs awarded to respondents
Legal Topics
['judicial Review of Ministerial Decision' 'non Refoulement Obligations' 'interlocutory Injunctions' 'jurisdiction Under International Treaties' 'procedural Fairness' 'bias in Administrative Decision Making']
['administrative Law' 'practice and Procedure' 'migration Law' 'human Rights Law'] ['judicial Review of Ministerial Decision' 'non Refoulement Obligations' 'interlocutory Injunctions' 'jurisdiction Under International Treaties' 'procedural Fairness' 'bias in Administrative Decision Making']

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Procedural Posture

Judicial Review Applications; Interlocutory Injunction Applications / Final Judgment in Federal Court Proceedings

Legal Issues

  1. 1 ['Whether the decision of the Acting Minister to declare a UNCAT Interim Measures Request unwarranted is affected by jurisdictional error—on grounds of legal unreasonableness, bias, denial of procedural fairness, or failure to consider evidence' "Whether the Federal Court has jurisdiction to make declarations enforcing Australia's non-refoulement obligations under international law (CAT/ICCPR)" 'Whether the Acting Minister’s decision was based on errors relating to the applicant’s claimed outstanding arrest warrant, the assessment of sur place claims, and consideration of procedural matters']

Ratio Decidendi

The Acting Minister’s decision to declare the Interim Measures Request unwarranted was not affected by jurisdictional error. There was no legal unreasonableness, denial of procedural fairness, bias, or material failure to consider evidence, as the applicant’s shifting and unsupported claims about risk and evidence—including the alleged outstanding arrest warrant and sur place claims—were reasonably considered. The Court had no jurisdiction to enforce non-refoulement obligations arising solely under international treaties not incorporated into domestic law.

Court Disposition

Applications dismissed; costs awarded to respondents

Orders

  • ['The application in NSD 1261 of 2021 be dismissed.' "The applicant pay the respondents' costs in NSD 1261 of 2021." 'The application in NSD 1262 of 2021 be dismissed.' "The applicant pay the respondent's costs in NSD 1262 of 2021."]