FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1571

FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1571

The Tribunal was not entitled to delay hearing the applicant's review application pending the outcome of the Minister's High Court special leave application where no stay had been granted. Its refusal to proceed constituted non-compliance with the Court's order. Relief requiring the Tribunal to make a return as if a writ of mandamus had issued within 42 days was appropriate, given the ongoing risk to the applicant's personal liberty and the lack of basis for unilateral delay.

Jurisdiction
Australia
Judgment Date
16 December 2021
Procedural Posture
Judicial Review / Application for Orders Enforcing Compliance With Earlier Judgment
Outcome
Interlocutory application allowed; Tribunal required to make a return to the Court within 42 days or show cause for non-compliance.
Legal Topics
['judicial Review' 'mandamus' 'migration Decisions' 'stays of Orders' 'personal Liberty' 'tribunal Procedure']
['administrative Law' 'migration Law' 'constitutional Law' 'human Rights'] ['judicial Review' 'mandamus' 'migration Decisions' 'stays of Orders' 'personal Liberty' 'tribunal Procedure']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Judicial Review / Application for Orders Enforcing Compliance With Earlier Judgment

Legal Issues

  1. 1 ["Whether the Administrative Appeals Tribunal failed to comply with the Court's order requiring review of a migration decision according to law" 'Whether the Tribunal was entitled to delay review pending the outcome of a High Court special leave application' 'Whether relief should be granted to require Tribunal compliance within a set timeframe']

Ratio Decidendi

The Tribunal was not entitled to delay hearing the applicant's review application pending the outcome of the Minister's High Court special leave application where no stay had been granted. Its refusal to proceed constituted non-compliance with the Court's order. Relief requiring the Tribunal to make a return as if a writ of mandamus had issued within 42 days was appropriate, given the ongoing risk to the applicant's personal liberty and the lack of basis for unilateral delay.

Court Disposition

Interlocutory application allowed; Tribunal required to make a return to the Court within 42 days or show cause for non-compliance.

Orders

  • ['On or before 4 February 2022, the second respondent is to make a return to the Court in relation to the order in paragraph 3 of the orders made on 7 August 2020 as if a writ of mandamus had issued which required the second respondent to determine the application for review of the decision of the delegate of the...