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

Federal Court of Australia

FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1571 Review of: QDWQ v Minister for Home Affairs [2019] AATA 4622

File number: SAD 279 of 2019

Judgment of: CHARLESWORTH J

Date of judgment: 16 December 2021

Catchwords: MIGRATION – successful application for judicial review of a decision of the Administrative Appeals Tribunal – order in nature of mandamus requiring Tribunal to conduct a review of a migration decision according to law – no party applying for stay of the order – Full Court dismissing an appeal from the order – application for special leave to appeal from the judgment of the Full Court presently pending in the High Court of Australia – Tribunal deciding of its own initiative not to review the migration decision until outcome of High Court proceeding is known – whether Tribunal has failed to comply with this Court's order – applicant's personal liberty potentially affected by Tribunal's delay – whether Tribunal should be ordered to make a return to this Court as though a writ of mandamus had issued – whether Tribunal should be ordered to make a return within 42 days – relief granted

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 42A, 42B, 42C, 43 Federal Court of Australia Act 1976 (Cth) ss 29, 38 Migration Act 1958 (Cth) ss 13, 14, 65, 189, 476A, 500, 501, 501CA Federal Court Rules 2011 (Cth) r 36.08 High Court Rules 2004 (Cth) rr 25.13.4, 42.09

Cases cited: FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 Obeid v The Queen [2016] HCA 9; 329 ALR 372