Plaintiff S111/2017 v Minister for Immigration and Border Protection [2018] FCAFC 92

FEDERAL COURT OF AUSTRALIA

Plaintiff S111/2017 v Minister for Immigration and Border Protection [2018] FCAFC 92 Appeal from: Plaintiff S111/2017 v Minister for Immigration and Border Protection [2017] FCA 813

File number(s): NSD 1317 of 2017

Judge(s): MCKERRACHER, PERRY AND CHARLESWORTH JJ

Date of judgment: 21 June 2018

Catchwords: MIGRATION - Appeal from single judge of the Federal Court on remittal from the High Court under s 44, Judiciary Act 1903 – where no decision yet on whether to refuse to grant the appellant a protection visa on character grounds under s 501(1), Migration Act – where appellant received letter advising of possible exercise of the power to refuse to grant the protection visa under s 501(1) only after the decision was made that Australia owed him non-refoulement obligations – whether breach of procedural fairness by reason of alleged failure to afford the appellant an opportunity to be heard on whether any exercise of the power under s 501(1) should precede a consideration of whether he was owed protection obligations – whether failure to consider exercise of power under s 501(1) immediately or to invite submissions on whether it should be exercised first was legally unreasonable – whether Minister estopped from refusing to grant the appellant a protection visa under s 501(1) – whether any representation was made capable of giving rise to an estoppel – where estoppel would impermissibly fetter the exercise of a statutory duty and impede compliance with a statutory duty – whether primary judge's reasons inadequate - appeal dismissed PRACTICE AND PROCEDURE – Where appellant submitted that the Federal Court lacked jurisdiction to entertain the matter on remittal – where appellant submitted that the remittal order by the High Court was a nullity – where remittal order valid and binding unless and until set aside – where attack on validity of remittal order was an impermissible collateral attack on a High Court order – observations on whether the matter fell within the Federal Court's jurisdiction under s 476A(1)(c), Migration Act