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Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10

77 ALJR 768; 196 ALR 257
Gleeson CJ, McHugh, Kirby, Hayne, Callinan JJ
Date: 11 Mar 2003 Case Number: P60/2001
Damages – Breach of contract - Proof of damage - Calculation of damages - Joint venture mining contract - Respondent carried out mining operations for appellant - Rates based on genuine estimates of cost of operations - Respondent inflated cost estimates - Whether breach of contractual obligation of good faith - Whether sufficient evidence from appellant to prove damage - Whether sufficient evidence for trial judge to make a calculation of damages on proper principles - Significance of respondent's admission that cost estimates exceeded actual bona fide estimates of costs - Continuing obligation during litigation to correct fraudulent conduct.

Plaintiff B15a v Minister for Immigration and Border Protection [2015] HCA 24

Kiefel J
Date: 19 Jun 2015 Case Number: B15/2015
Migration – Unauthorised maritime arrivals – Section 5AA(1A) of Migration Act 1958 (Cth) provides that person is an unauthorised maritime arrival if "a parent of the person is, at the time of the person's birth, an unauthorised maritime arrival" – Whether s 23 of Acts Interpretation Act 1901 (Cth) required "a parent" to be read as "both parents".

Practice and procedure – Summary determination of action without trial – Whether affidavit evidence sufficient to create controversy which should be resolved by litigation – Where there would be no utility in a trial.

Words and phrases – "unauthorised maritime arrival".

Acts Interpretation Act 1901 (Cth) – s 23.

Migration Act 1958 (Cth) – ss 5AA(1A), 46A(1).

Plaintiff M13/2011 v Minister for Immigration and Citizenship [2011] HCA 23

85 ALJR 740; 277 ALR 667
Hayne J
Date: 23 Jun 2011 Case Number: M13/2011
Immigration – Refugees - Well-founded fear of persecution - Relocation - Plaintiff applied for and delegate of defendant refused to grant Protection (Class XA) visa - Delegate found plaintiff's fear not well-founded due to possibility of relocation within country of residence - Delegate made no finding of where plaintiff had been resident or to where plaintiff could relocate - Delegate did not consider whether relocation was reasonable or practicable for plaintiff - Whether delegate required to consider particular circumstances of plaintiff and impact upon plaintiff of relocation.

Practice and procedure – High Court of Australia - Original jurisdiction - Extension of time for commencing proceeding - Plaintiff sought writ of certiorari to quash decision of delegate of defendant - Proceeding commenced outside period prescribed by s 486A(1) of Migration Act 1958 (Cth) and r 25. 06. 1 of High Court Rules 2004 - Section 486A(2) of Act allowed extension of time where "necessary in the interests of the administration of justice" - Whether time for commencing proceeding should be extended.

Words and phrases – "jurisdictional error", "necessary in the interests of the administration of justice", "particular circumstances", "relocation".

Migration Act 1958 (Cth) – ss 48B, 486A(1), (2).

High Court Rules 2004 – r 25. 06. 1.

Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25

88 ALJR 735; 309 ALR 225
French CJ, Hayne, Crennan, Kiefel, Bell, Gageler, Keane JJ
Date: 20 Jun 2014 Case Number: M150/2013
Migration – Refugees – Protection visas – Power of Minister under s 85 of Migration Act 1958 (Cth) to determine maximum number of visas of specified class granted in specified financial year, in circumstances where s 65A imposed time limit in which protection visa applications must be decided – Minister signed instrument limiting number of protection visas granted in current financial year – Plaintiff's protection visa application not determined by Minister pursuant to that determination – Whether power under s 85 extended to protection visas – Whether instrument valid.

Words and phrases – "harmonious construction", "implied repeal", "leading provision", "legislative instrument", "subordinate provision".

Legislative Instruments Act 2003 (Cth) – s 56.

Migration Act 1958 (Cth) – ss 36, 39, 65, 65A, 84, subdiv AH.

Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 27

88 ALJR 775; 311 ALR 154
French CJ
Date: 3 Jul 2014 Case Number: M150/2013 S297/2013
Practice and procedure – Court ordered writs of mandamus issue directing Minister to consider and determine plaintiffs' protection visa applications – Minister sought extension of return date to consider criterion for grant of protection visa in cl 866. 226 of Sched 2 to Migration Regulations 1994 (Cth).

High Court Rules 2004 (Cth) – rr 25. 08. 3, 25. 08. 4.

Migration Regulations 1994 (Cth) – Sched 2, cl 866. 226.

Plaintiff M168/10 v The Commonwealth [2011] HCA 25

85 ALJR 790; 279 ALR 1
Crennan J
Date: 19 Jan 2011 Case Number: M168/2010 M172/2010 M173/2010 M170/2010 M169/2010 M171/2010 M174/2010 M175/2010
Injunctions – Interlocutory injunctions - Migration - Detention under Migration Act 1958 (Cth) ("Act") - Plaintiffs arrived in Australian waters by boat and treated as unlawful non-citizens under Act - Plaintiffs detained on Christmas Island and transported to mainland to be placed in immigration detention - Plaintiffs sought interlocutory injunctions restraining detention or effecting release, claiming that detention on Christmas Island and subsequent detention on mainland unlawful - Whether prima facie case that continuing detention of plaintiffs on mainland unlawful.

Words and phrases – "prima facie case".

Migration Act 1958 (Cth) – ss 189(1), 189(3).

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 18 Apr 2018 Case Number: M174/2016
Migration – Pt 2 Div 3 subdiv AB of Migration Act 1958 (Cth) – Where plaintiff applied for protection visa – Where plaintiff claimed real chance of harm due to being Christian – Where plaintiff claimed to attend church regularly – Where delegate of Minister for Immigration and Border Protection called reverend of church and reverend provided information on plaintiff's attendance at church – Where delegate did not provide plaintiff with information provided by reverend or invite plaintiff to comment on it – Where delegate refused to grant protection visa to plaintiff – Whether delegate failed to comply with s 57(2) of Migration Act.

Migration – Pt 7AA of Migration Act 1958 (Cth) – Where plaintiff "fast track review applicant" within meaning of Migration Act – Whether decision affected by jurisdictional error because of failure to comply with s 57(2) a "fast track reviewable decision" within meaning of Pt 7AA – Where "new information" defined as documents or information not before Minister when deciding to refuse to grant protection visa that Immigration Assessment Authority considers may be relevant – Power of Authority to get new information – Power of Authority to consider new information – Obligation of Authority to invite applicant to comment on new information – Nature of review by Authority – Whether Authority's decision not to interview plaintiff and certain other persons or to have regard to certain information provided by plaintiff legally unreasonable.

Words and phrases – "condition of valid performance", "decision", "decision that is made in fact", "de novo consideration of the merits", "exceptional circumstances", "fast track reviewable decision", "jurisdictional error", "legally effective decision", "legally unreasonable", "new information", "not a valid decision", "not previously known", "personal information", "relevant information", "review material", "unreasonable failure to exercise power", "would be the reason, or part of the reason for refusing to grant a visa".

Migration Act 1958 (Cth) – ss 5, 46A, 54, 55, 56, 57, 69, Pt 7AA.

Migration Regulations 1994 (Cth) – reg 4. 43.

Plaintiff M47/2012 v Director General of Security [2012] HCA 46

86 ALJR 1372; 292 ALR 243
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 5 Oct 2012 Case Number: M47/2012
Citizenship and migration – Migration – Refugees – Protection visas – Inconsistency between Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) – Plaintiff found to be a refugee but refused protection visa due to adverse security assessment by Australian Security Intelligence Organisation – Clause 866. 225(a) of Sched 2 to Regulations prescribes public interest criterion 4002 as criterion for grant of protection visa – Public interest criterion 4002 requires that applicant not be assessed by Australian Security Intelligence Organisation to be risk to security – Whether prescription of public interest criterion 4002 as criterion for grant of protection visa beyond power conferred by s 31(3) of Act.

Administrative law – Procedural fairness – ASIO interviewed plaintiff – ASIO issued adverse security assessment in relation to plaintiff – Plaintiff therefore did not meet requirements for protection visa – Whether ASIO denied plaintiff procedural fairness.

Citizenship and migration – Mandatory detention – Plaintiff held in detention as unlawful non-citizen – No third country currently available to receive plaintiff – Whether ss 189 and 196 of Act authorise plaintiff's detention.

Words and phrases – "character test", "decision . . . relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2)", "inconsistent", "protection obligations", "security".

Australian Security Intelligence Organisation Act 1979 (Cth) – ss 4, 37.

Migration Act 1958 (Cth) – ss 31(3), 36(2), 65, 189, 196, 500, 501, 504(1).

Migration Regulations 1994 (Cth) – Sched 2, cl 866. 225(a), Sched 4, item 4002.

Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41

243 CLR 319; 85 ALJR 133; 272 ALR 14
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 11 Nov 2010 Case Number: M61/2010 M69/2010
Administrative law – Procedural fairness - Error of law - Refugees - Migration - Offshore processing - Plaintiffs were "offshore entry persons" under Migration Act 1958 (Cth) ("Migration Act") - Plaintiffs detained under s 189(3) of Migration Act - Each claimed Australia owed him protection obligations under Refugees Convention as amended by Refugees Protocol - Each plaintiff precluded from making valid visa application unless Minister decided in public interest to allow s 46A of Migration Act - Minister had power to grant visa in absence of valid application s 195A of Migration Act - Each plaintiff subject to "Refugee Status Assessment" by departmental officer and subsequent "Independent Merits Review" by independent contractor - Each departmental officer and independent reviewer concluded plaintiff not a person to whom Australia had protection obligations - Powers under ss 46A and 195A "may only be exercised by the Minister personally" - Minister not under duty to consider whether to exercise power under s 46A or s 195A - Whether continuing detention lawful because assessment and review were steps taken under and for purposes of Migration Act - Whether Minister had decided to consider exercising power under s 46A or s 195A of Migration Act in every case where an offshore entry person claimed to be owed protection obligations - Whether those who conducted assessment and review bound to afford procedural fairness to plaintiffs and act according to law - Whether each review procedurally fair and undertaken in accordance with law.

Constitutional law (Cth) – Validity of Commonwealth laws - Section 75(v) of Constitution - Whether s 46A of Migration Act invalid because consideration of exercise of power could not be enforced - Whether Minister's power arbitrary.

High Court – Original jurisdiction - Constitutional writs and orders - Minister not bound to consider exercising powers under s 46A or s 195A of Migration Act - Whether mandamus available - Whether certiorari would have practical utility - Whether declaration would produce foreseeable consequences for the parties.

Words and phrases – "Carltona principle", "excised offshore place", "Independent Merits Review", "offshore entry person", "Pacific Strategy", "Refugee Status Assessment", "unlawful non-citizen".

Constitution – s 75(v).

Migration Act 1958 (Cth) – ss 46A, 189(3), 193(1)(c), 195A, 196(1), 198(2), 198A.

Migration Amendment (Excision from Migration Zone) Act 2001 (Cth).

Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth).

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50

French CJ, Bell, Gageler, Keane, Gordon JJ
Date: 17 Dec 2015 Case Number: M64/2015
Migration – Visa application – Clause 202. 222(2) of Sched 2 to Migration Regulations 1994 (Cth) provides for grant of Refugee and Humanitarian (Class XB) (Subclass 202) visa if Minister satisfied there are compelling reasons for giving special consideration to granting visa – Where applications for Subclass 202 visas refused by delegate of Minister – Where delegate considered capacity of Australian community to permanently settle visa applicants – Where delegate considered departmental policy that established priorities to be accorded to visa applications – Construction of cl 202. 222(2) – Whether decision affected by jurisdictional error.

Words and phrases – "capacity", "compelling reasons", "irrelevant considerations", "jurisdictional error", "priorities policy", "special consideration".

Migration Regulations 1994 (Cth) – Sched 2, cl 202. 222(2).

Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1

French CJ, Kiefel, Bell, Gageler, Keane, Nettle, Gordon JJ
Date: 3 Feb 2016 Case Number: M68/2015
Migration – Regional processing – Where plaintiff was "unauthorised maritime arrival" upon entry into Australian migration zone – Where plaintiff was removed to regional processing centre on Nauru pursuant to s 198AD of Migration Act 1958 (Cth) – Where Commonwealth entered into arrangement in relation to regional processing functions – Whether plaintiff was detained by Commonwealth at Nauru Regional Processing Centre – Whether principles in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 apply.

Constitutional law (Cth) – Executive power of Commonwealth – Whether conduct of Commonwealth authorised by s 61 of Constitution – Whether conduct of Commonwealth authorised by s 198AHA of Migration Act.

Constitutional law (Cth) – Legislative power of Commonwealth – Whether s 198AHA of Migration Act is a law with respect to aliens – Whether s 198AHA of Migration Act is a valid law of Commonwealth.

Procedure – Standing – Whether plaintiff has standing to challenge lawfulness of conduct of Commonwealth with respect to plaintiff's past detention.

Private international law – Act of State doctrine – Where plaintiff's detention imposed by laws of Nauru – Whether Australian court should pronounce on constitutional validity of legislation of another country.

Words and phrases – "aliens power", "constraints upon the plaintiff's liberty", "control", "detention", "effective control", "memorandum of understanding", "non-statutory executive power", "regional processing country", "regional processing functions".

Constitution – ss 51(xix), 61.

Migration Act 1958 (Cth) – ss 198AB, 198AD, 198AHA

Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32

244 CLR 144; 85 ALJR 891; 280 ALR 18
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 31 Aug 2011 Case Number: M106/2011 M70/2011
Citizenship and migration – Migration - Refugees - Plaintiffs "unlawful non-citizens" and "offshore entry persons" under Migration Act 1958 (Cth) - Plaintiffs detained under s 189(3) - Each plaintiff claimed asylum under Refugees Convention - Section 198(2) required officer to remove from Australia unlawful non-citizen in detention where no successful visa application made - Section 198A(1) empowered officer to take offshore entry person from Australia to country declared under s 198A(3) - Section 198A(3) empowered Minister to declare that specified country provides access for asylum-seekers to effective procedures for assessing protection needs, provides protection for asylum-seekers and refugees, and meets relevant human rights standards in providing protection - Whether s 198A only source of power to remove plaintiffs from Australia when asylum claims not assessed in Australia - Whether s 198(2) supplied power to remove plaintiffs from Australia.

Citizenship and migration – Migration - Refugees - Minister declared Malaysia under s 198A - Whether criteria in s 198A(3)(a)(i)-(iv) jurisdictional facts - Whether declared country must provide access and protections as matter of domestic or international legal obligation - Whether Minister's declaration valid.

Citizenship and migration – Migration - Refugees - Children - Second plaintiff entered Australia as unaccompanied minor and "non-citizen child" under Immigration (Guardianship of Children) Act 1946 (Cth) - Section 6 had effect that Minister guardian of second plaintiff - Section 6A provided that non-citizen child could not leave Australia except with consent in writing of Minister - No consent given - Whether taking of second plaintiff to another country lawful.

Words and phrases – "declare", "meets relevant human rights standards", "non-citizen child", "offshore entry person", "provides access", "provides protection", "Refugees Convention", "unaccompanied minor", "unlawful non- citizen".

Immigration (Guardianship of Children) Act 1946 (Cth) – ss 4AAA, 6, 6A.

Migration Act 1958 (Cth) – ss 189, 198, 198A.

Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53

88 ALJR 324; 304 ALR 135
French CJ, Hayne, Crennan, Kiefel, Bell, Gageler, Keane JJ
Date: 12 Dec 2013 Case Number: M76/2013
Migration – Refugees – Protection visas – Offshore entry persons – Power of Minister to permit valid application for protection visa – Plaintiff assessed to be refugee – Plaintiff subject of adverse security assessment by Australian Security Intelligence Organisation – Minister's department did not refer plaintiff's case for Minister's consideration – Minister's department acted upon invalid regulation – Whether Minister's exercise of power attended by error of law.

Migration – Unlawful non-citizens – Immigration detention pending removal from Australia – Minister's consideration of whether to permit plaintiff to make valid application for visa not completed – Not established that no realistic prospect of removal from Australia in reasonably foreseeable future – Whether appropriate to re open Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 – Whether plaintiff's detention authorised.

Administrative law – Non-compellable power – Remedies – Declaration – Plaintiff has real interest in raising question of error – Whether declaration appropriate remedy.

Words and phrases – "adverse security assessment", "declaration", "error of law", "executive detention", "harmless error", "lift the bar", "real interest".

Migration Act 1958 (Cth) – ss 46A(2), 189, 196, 198.

Migration Regulations 1994 (Cth) – Sched 2, cl 866. 225(a), Sched 4, cl 4002.

Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24

87 ALJR 682; 298 ALR 1
French CJ, Hayne, Crennan, Bell, Gageler JJ
Date: 29 May 2013 Case Number: M79/2012
Administrative law – Migration – Refugees – Minister exercised power under s 195A(2) of Migration Act 1958 (Cth) to grant plaintiff temporary safe haven visa permitting stay of seven days and bridging visa permitting stay of six months – Temporary safe haven visa granted to engage bar imposed by s 91K of Act on making valid application for protection visa – Whether decision to grant temporary safe haven visa made without power – Whether decision to grant temporary safe haven visa made for improper purpose – Whether plaintiff's application for protection visa valid.

Migration Act 1958 (Cth) – ss 29, 31, 37A, 46A, 65, 91H, 91J, 91K, 91L, 195A.

Words and phrases – "improper purpose", "offshore entry person", "public interest", "temporary safe haven visa".

Plaintiff M96A/2016 v Commonwealth of Australia [2017] HCA 16

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 3 May 2017 Case Number: M96/2016
Migration – Unlawful non-citizens – Power to detain – Where plaintiffs unauthorised maritime arrivals – Where plaintiffs brought to Australia from regional processing country for temporary purpose of medical treatment – Where plaintiffs detained under ss 189 and 196 of Migration Act 1958 (Cth) until removal from Australia – Whether ss 189 and 196 validly authorise detention while in Australia for temporary purpose – Whether plaintiffs detained for lawful purpose – Whether duration of detention capable of objective determination.

Words and phrases – "detention of non-citizen", "duration of detention", "opinion, satisfaction or belief of officer", "purpose of detention", "temporary purpose", "transitory person", "unauthorised maritime arrival", "unlawful non-citizen".

Constitution – s 51(xix).

Migration Act 1958 (Cth) – ss 189, 196, 198, 198AD, 198AH, 198B.

Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31

246 CLR 636; 86 ALJR 1019; 290 ALR 616
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 7 Sep 2012 Case Number: S10/2011 S43/2011 S49/2011 S51/2011
Administrative law – Procedural fairness – Migration – Refugees – Review by Refugee Review Tribunal and Migration Review Tribunal – Ministerial discretion – Migration Act 1958 (Cth) confers powers upon Minister to dispense with statutory requirements for visa if "in the public interest to do so" – Dispensing powers must be exercised personally and are non-compellable – Plaintiffs refused visas and unsuccessfully sought merits review of those refusals – Plaintiffs requested Minister to consider exercising and to exercise dispensing powers – Requests by three plaintiffs refused by departmental officers pursuant to guidelines issued by Minister not forwarded to Minister – Request by one plaintiff refused by Minister – Whether statutory provisions conferring dispensing powers apt to affect adversely the sufficient interest of a party seeking exercise of those powers – Whether statutory provisions conferring dispensing powers excluded any obligation of Minister to accord plaintiffs procedural fairness.

Words and phrases – "dispensing provision", "guidelines", "legitimate expectation", "procedural fairness", "public interest", "sufficient interest".

Migration Act 1958 (Cth) – ss 48B, 195A, 351, 417.

Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22

88 ALJR 690; 309 ALR 29
French CJ, Hayne, Crennan, Kiefel, Bell, Keane JJ
Date: 18 Jun 2014 Case Number: S156/2013
Constitutional law (Cth) – Legislative power of Commonwealth – Constitution, s 51(xix) – Aliens power – Section 198AB of Migration Act 1958 (Cth) provides that Minister may designate country as regional processing country – Section 198AD(2) provides that unauthorised maritime arrival ("UMA") must, as soon as reasonably practicable, be taken from Australia to regional processing country – Section 198AD(5) provides that, if there are two or more regional processing countries, Minister must, in writing, direct an officer to take UMA, or class of UMAs, to regional processing country specified in direction – Whether ss 198AB and 198AD laws with respect to aliens – Whether ss 198AB and 198AD valid.

Administrative law – Judicial review of administrative decisions – Where Minister designated country as regional processing country under power conferred by s 198AB of Migration Act 1958 (Cth) – Where only condition for exercise of power is that Minister thinks it is in national interest to do so – Whether Minister was obliged to, but did not, take into account other relevant considerations – Whether designation valid.

Administrative law – Judicial review of administrative decisions – Where Minister made direction under s 198AD(5) of Migration Act 1958 (Cth) – Whether direction uncertain or vague – Whether direction valid.

Words and phrases – "aliens power", "national interest", "proportionality", "reasonably appropriate and adapted", "relevant considerations", "with respect to".

Constitution – s 51(xix).

Migration Act 1958 (Cth) – Pt 2, Div 8, subdiv B, ss 5(1), 5AA, 5E, 14, 36, 46A, 189, 198, 198AA, 198AB, 198AD, 198B, 474, 476, 476A, 476B, 494AA.

Judiciary Act 1903 (Cth) – s 44(1).

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

211 CLR 476; 77 ALJR 454; 195 ALR 24
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 4 Feb 2003 Case Number: S157/2002
Statutes – Construction - Privative clauses - Whether the decision by the Refugee Review Tribunal affirming the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing the plaintiff's application for a protection visa is a "privative clause decision" within s 474 of the Migration Act 1958 (Cth) ("the Act") - Whether s 474(1) of the Act is construed as ousting judicial review by the High Court.

Constitutional Law (Cth) – Whether s 474 and s 486A of the Act are invalid - Whether s 474(1)(c) of the Act is directly inconsistent with s 75 of the Constitution - Whether s 474(1)(a) and (b) of the Act are inseparable from s 474(1)(c) of the Act and are consequently invalid - Whether s 486A of the Act will apply to a "decision" when there has been jurisdictional error - Whether s 486A of the Act is a law incidental to the legislative power conferred by ss 51(xix), (xxvii), (xxix) of the Constitution - Whether s 486A of the Act is within the express incidental power conferred by s 51 (xxxix) of the Constitution - Whether s 486A of the Act is inconsistent with s 75(v) of the Constitution.

Immigration – Refugee Review Tribunal - Whether decision affirming the decision of a delegate of the Minister refusing application for a protection visa is a "privative clause decision" within s 474 of the Act - Whether s 474(1) of the Act ousts judicial review by the High Court pursuant to s 75 of the Constitution - Whether s 486A of the Act is constitutionally valid.

Words and Phrases "privative clause decision".

Constitution
– ss 51 (xix), (xxvii), (xxix), (xxxix), 75, 76.

Migration Act 1958 (Cth) – ss 5(1), 36, 474, 486A.

Judiciary Act 1903 (Cth) – ss 39B, 44.

Plaintiff S164/2018 v Minister for Home Affairs [2018] HCA 51

Edelman J
Date: 7 Nov 2018 Case Number: S229/2018
High Court – Appellate jurisdiction – Leave to appeal – Circumstances when leave necessary – Distinction between interlocutory and final judgment – Where Judiciary Act 1903 (Cth) s 34(2) requires leave to appeal from interlocutory judgment of High Court exercising original jurisdiction – Where single Justice dismissed application for order to show cause – Where appellant filed notice of appeal without seeking leave to appeal – Whether judgment appealed from interlocutory or final – Whether appeal incompetent.

Courts – Jurisdiction – Different dimensions of jurisdiction – Where respondent entered unconditional appearance to the appeal – Whether submission to personal dimension of jurisdiction precludes respondent from impugning competency of appeal based on lack of subject matter jurisdiction.

Words and phrases – "application for an order nisi", "application for an order to show cause", "finally determines", "incompetent", "interlocutory judgment", "leave to appeal", "personal dimension of jurisdiction", "subject matter dimension of jurisdiction".

Judiciary Act 1903 (Cth) – s 34(2).

High Court Rules 1952 (Cth) – O 55 r 1(2).

High Court Rules 2004 (Cth) – r 25. 03. 3(a).

Plaintiff S195/2016 v Minister for Immigration and Border Protection [2017] HCA 31

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 17 Aug 2017 Case Number: S195/2016
Migration – Regional processing – Where plaintiff "unauthorised maritime arrival" – Where plaintiff taken to regional processing centre in Papua New Guinea pursuant to s 198AD of Migration Act 1958 (Cth) – Where Commonwealth entered into arrangements with Papua New Guinea and took other actions in relation to regional processing functions – Where Supreme Court of Papua New Guinea held treatment of unauthorised maritime arrivals at Manus Island regional processing centre contrary to law of Papua New Guinea – Whether Commonwealth had power to enter into arrangements – Whether certain past and potential future actions of Commonwealth, its officers, and Minister invalid under Constitution or s 198AHA of Migration Act 1958 (Cth) by reason of Supreme Court decision – Whether arrangements entered into by Commonwealth not "arrangement[s]" for purpose of s 198AHA by reason of Supreme Court decision.

Constitutional law (Cth) – Legislative and executive power – Whether Constitution denies Commonwealth legislative or executive power to authorise or to take part in activity in another country that is unlawful under domestic law of that country.

Words and phrases – "domestic law of another country", "ministerial designation", "ministerial direction", "regional processing arrangements", "regional processing country", "regional resettlement arrangement", "unauthorised maritime arrival".

Migration Act 1958 (Cth) – ss 198AB(1), 198AD, 198AHA.

Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24

88 ALJR 722; 309 ALR 209
French CJ, Hayne, Crennan, Kiefel, Bell, Gageler, Keane JJ
Date: 20 Jun 2014 Case Number: S297/2013
Migration – Refugees – Protection visas – Power of Minister under s 85 of Migration Act 1958 (Cth) to determine maximum number of visas of specified class granted in specified financial year, in circumstances where s 65A imposed time limit in which protection visa applications must be decided – Minister signed instrument limiting number of protection visas granted in current financial year – Plaintiff's protection visa application not determined by Minister pursuant to that determination – Whether power under s 85 extended to protection visas – Whether instrument valid.

Words and phrases – "harmonious construction", "implied repeal", "leading provision", "legislative instrument", "subordinate provision".

Legislative Instruments Act 2003 (Cth) – s 56.

Migration Act 1958 (Cth) – ss 36, 39, 65, 65A, 84, subdiv AH.

Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 39

88 ALJR 964
French CJ
Date: 8 Sep 2014 Case Number: S297/2013
Practice and procedure – Writ of mandamus – Sufficiency of return – Court ordered writ of mandamus issue directing Minister to consider and determine plaintiff's protection visa application according to law – Minister refused plaintiff's application and certified compliance with writ – Plaintiff alleged Minister's decision not made according to law – Plaintiff sought to plead to return of writ.

High Court Rules 2004 (Cth) – rr 6. 01. 1, 25. 08. 5, 25. 08. 7.

Migration Regulations 1994 (Cth) – Sched 2, cl 866. 226.

Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3

French CJ, Hayne, Kiefel, Bell, Gageler, Keane JJ
Date: 11 Feb 2015 Case Number: S297/2013
Migration – Refugees – Protection visas – Power of Minister under Sched 2, cl 866. 226 of Migration Regulations 1994 (Cth) to decide application for protection visa if Minister satisfied that grant of visa "is in the national interest" – Whether cl 866. 226 invalid – Whether cl 866. 226 permitted Minister to refuse to grant protection visa solely on ground that application for visa made by unauthorised maritime arrival.

Administrative law – Judicial review – Mandamus – Return of writ insufficient – Plaintiff sought order issuing peremptory writ of mandamus – Reg 2. 08F of Migration Regulations 1994 (Cth) applied where court quashed decision of Minister in relation to application for protection visa and ordered Minister to reconsider application in accordance with law – Whether reg 2. 08F applied.

Words and phrases – "is in the national interest", "peremptory mandamus", "unauthorised maritime arrival".

Migration Act 1958 (Cth) – ss 45AA, 46A.

Migration Regulations 1994 (Cth) – reg 2. 08F, Sched 2, cl 866. 226.

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