Federal Court. Should the Court withhold the grant of constitutional relief, for instance on the basis that the applicant’s case before the Minister was founded on the premise that Al-Kateb correctly represented the law and that the Minister should apply such law in making his decision, even though NZYQ subsequently overruled Al-Kateb?
In making a decision under s 501A(2) of the Migration Act 1958 (Cth) to set aside a Tribunal decision, the Minister proceeded on the belief that in accordance with the law as then understood, the applicant faced the prospect of indefinite detention, when as the High Court subsequently made clear in NZYQ, ss 189 and 196 of the Act did not authorise the continuing detention of unlawful non-citizens where there was no real prospect of their removal becoming practicable in the reasonably foreseeable future.
The Minister accepted on judicial review that he made a jurisdictional error. However, he invited the Federal Court (FCA) to exercise its discretion to withhold the grant of the constitutional writs sought by the applicant, on the following basis:
13 First, that the applicant’s case before the Minister was founded on the premise that Al-Kateb correctly represented the law and that the Minister should apply such law in making his decision. Secondly, that Al-Kateb being re-opened and overruled by the High Court in NZYQ was “unknown, and unknowable, to the Minister” at the time of making his decision (using the words of the Full Court in AJN23 at [30]). Thirdly, that the applicant’s position is unjust and inconsistent, in the sense that he was able to procure a favourable s 501(1) decision from the Tribunal on the very basis that he now contends the Minister was in error to accept. Fourthly, that accepting the applicant’s position may prejudice a third party, namely the Tribunal, as it would mean that the Tribunal’s decision might be liable to be set aside for jurisdictional error.
The FCA answered that question as follows: