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

Federal Court of Australia

CQI18 v Minister for Home Affairs (No 2) [2021] FCA 1427 Appeal from: CQI18 v Minister for Home Affairs & Anor [2020] FCCA 3104

File number: VID 185 of 2021

Judgment of: MORTIMER J

Date of judgment: 15 November 2021

Date of publication of reasons: 18 November 2021

Catchwords: PRACTICE AND PROCEDURE – application to set aside order allegedly made in error – where impugned order set aside decision made by independent merits reviewer – impugned order made intentionally – application granted – impugned order replaced by declaratory and injunctive relief – application for interlocutory relief to restrain the removal of the appellant – application refused – directions made in relation to Court's registry accepting future applications to restrain appellant's removal COSTS – successful appeal – ground on which the appellant succeeded clearly raised at trial, but not developed – order that parties bear their own costs at trial – order that the respondent pay the appellant's costs of the appeal, except for the costs of the interlocutory application

Legislation: Federal Court of Australia Act 1976 (Cth) s 23 Migration Act 1958 (Cth) s 46A Federal Court Rules 2011 (Cth) r 39.05(e)

Cases cited: Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (No 2) [2012] FCA 1404; 209 FCR 123 CQI18 v Minister for Home Affairs [2021] FCA 1168 McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 385 ALR 405 Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 Smethurst v Commissioner of Police [2020] HCA 14; 376 ALR 575