ELM21 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 18 November 2021
• Neutral Citation: [2021] FCA 1604
• Court: Federal Court
• Date: 18 November 2021

FEDERAL COURT OF AUSTRALIA

ELM21 v Minister for Home Affairs [2021] FCA 1604

File numbers:	NSD 1261 of 2021NSD 1262 of 2021
Judgment of:	MURPHY J
Date of judgment:	18 November 2021
Catchwords:	PRACTICE AND PROCEDURE – applications for an interlocutory injunction to prevent the applicant’s removal from Australia pending determination of proceedings in the High Court and the Federal Court – provision of an undertaking not to remove the applicant pending determination of proceedings – proceedings determined – applications dismissed ; ADMINISTRATIVE LAW – application for judicial review of decision of the Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs that an Interim Measures Request made by the United Nations Office of the High Commissioner for Human Rights and the Committee Against Torture is unwarranted – whether the Court has jurisdiction to enforce obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – whether the Acting Minister’s decision is affected by jurisdictional error – whether the decision shows legal unreasonableness on the basis of faulty reasoning in the recommendation to the Acting Minister – whether the decision is affected by apprehended bias or actual bias in the recommendation – whether the decision is affected by jurisdictional error on the basis that the applicant was not afforded procedural fairness – whether the decision is affected by jurisdictional error because the recommendation to the Acting Minister failed to consider the evidence – application dismissed
Legislation:	Constitution ss 71, 75 Federal Court of Australia Act 1976 (Cth) s 19(1) Judiciary Act 1903 (Cth) ss 38, 39B(1), 39B(1A), 44 Migration Act 1958 (Cth) ss 36(2), 36(2A), 36(2B), 48A, 48B, 197C, 198, 198(2), 417
Cases cited:	Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 li v Minister for Home Affairs [2020] FCAFC 109; 278 FCR 627 ALZ15 v Minister for Immigration and Border Protection [2015] FCA 279 APE16 v Minister for Home Affairs [2020] FCAFC 93; 277 FCR 640 AVN20 v Federal Circuit Court of Australia [2020] FCA 584 [redacted] [redacted] [redacted] [redacted] [redacted] BWT16 v Minister for Immigration and Border Protection [2019] FCA 404 CGU Insurance Limited v Blakeley [2016] HCA 2; 259 CLR 339 Clarence City Council v Commonwealth of Australia [2020] FCAFC 134; 280 FCR 265 CMA19 v Minister for Home Affairs [2020] FCA 736 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576 Dietrich v The Queen [1992] HCA 57; 177 CLR 292 [redacted] [redacted] Fencott v Muller [1983] HCA 12; 152 CLR 570 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 In re Judiciary and Navigation Acts [1921] HCA 20; 29 CLR 257 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 Minogue v Williams [1999] FCA 1585 Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319 R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; 122 CLR 546 R v Cook; Ex parte Twigg [1980] HCA 36; 147 CLR 15 R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; 94 CLR 254 Re East; Ex Parte Nguyen [1998] HCA 73; 196 CLR 354 Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 SZTAL v Minister for Immigration [2017] HCA 34; 262 CLR 362 Tjandra v Minister for Immigration and Ethnic Affairs [1996] FCA 610; 67 FCR 577
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	184
Date of hearing:	7 October 2021
Solicitor for the Applicant in NSD1261/2021:	Mr D Taylor of Sydney West Legal and Migration
Counsel for the Applicant in NSD 1262/2021:	Mr J F Gormly
Solicitor for the Applicant in NSD 1262/2021:	Sydney West Legal and Migration
Counsel for the Respondents:	Mr P Knowles
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

		NSD 1261 of 2021
BETWEEN:	ELM21 Applicant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Second Respondent ; COMMONWEALTH OF AUSTRALIA (and another named in the Schedule) Third Respondent

order made by:	MURPHY J
DATE OF ORDER:	18 NOVEMBER 2021

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The Applicant pay the Respondents’ costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

NSD 1262...