JZQQ v. Minister for Immigration, Citizenship and Multicultural Affairs & Anor
Case No.
B15/2024
Case Information
Lower Court Judgment
19/10/2023 Federal Court of Australia (Katzmann, Derrington, Kennett JJ)
Catchwords
Constitutional law – Judicial power of Commonwealth – Direction principle – Where appellant born in Somalia and granted refugee status in New Zealand – Where appellant convicted of intentionally causing injury and making threats to kill and sentenced to aggregate term of 15 months imprisonment – Where appellant's Australian visa cancelled on basis he failed character test in s 501 of Migration Act 1958 (Cth) – Where Administrative Appeals Tribunal ("Tribunal") affirmed non-revocation decision and concluded appellant did not pass character test – Where appellant lodged originating motion in Federal Court seeking judicial review – Where appellant released from immigration detention following Pearson v Minister for Home Affairs (2022) 295 FCR 177 ("Pearson") – Where Full Federal Court in Pearson held aggregate sentence does not fall within s 501(7)(c) – Where appellant amended originating application raising Pearson ground – Where Migration Amendment (Aggregate Sentences) Act 2023 (Cth) ("Amending Act") amended Migration Act with retrospective effect to treat aggregate sentence as equivalent to sentence for single offence for purposes of s 501(7)(c) – Where appellant re-detained under Amending Act – Where Full Court held Tribunal's decision and Amending Act valid – Whether Amending Act beyond legislative power of Commonwealth Parliament by directing courts as to conclusions they should reach in exercise of their jurisdiction – Whether Amending Act denies court exercising jurisdiction under, or derived from, s 75(v) of Constitution, ability to enforce limits which Parliament has expressly or impliedly set on decision-making power.
Immigration – Visas – Cancellation – Application for judicial review – Whether decision made by Tribunal under s 43 of Administrative Appeals Tribunal Act 1975 (Cth) capable of meeting Amending Act’s description of decision made "under" Migration Act – Whether appellant's aggregate sentence of 15 months’ imprisonment is "term of imprisonment of 12 months or more" within meaning of s 501(7)(c) of Migration Act 1958.
Documents
07/03/2024 Determination
15/03/2024 Notice of appeal
24/04/2024 Written submissions (Appellant)
24/04/2024 Chronology (Appellant)
22/05/2024 Written submissions (First Respondent and Attorney-General of the Commonwealth of Australia, intervening)
05/06/2024 Written submissions (Attorney-General for the Northern Territory, intervening)
05/06/2024 Written submissions (Attorney-General of the State of Queensland, intervening)
05/06/2024 Written submissions (Attorney-General for the State of Western Australia, intervening)
12/06/2024 Reply
09/10/2024 Hearing (Full Court, Canberra) (Audio-visual recording)
09/10/2024 Outline of oral argument (Appellant)
09/10/2024 Outline of oral argument (First Respondent and Attorney-General of the Commonwealth of Australia, intervening)
10/10/2024 Hearing (Full Court, Canberra) (Audio-visual recording)
10/10/2024 Outline of oral argument (Attorney-General for the Northern Territory, intervening)
10/10/2024 Outline of oral argument (Attorney-General of the State of Queensland, intervening)
10/10/2024 Outline of oral argument (Attorney-General for the State of Western Australia, intervening)
04/12/2024 Judgment (Judgment summary)
Tapiki v. Minister for Immigration, Citizenship and Multicultural Affairs
Case No.
P10/2024
Case Information
Lower Court Judgment
19/10/2023 Federal Court of Australia (Katzmann, Derrington, Kennett JJ)
Catchwords
Constitutional law – Judicial power of Commonwealth – Usurpation or interference with Commonwealth judicial power – Where appellant New Zealand national – Where appellant's Australian visa purportedly cancelled under s 501(3A) of Migration Act 1958 (Cth) – Where appellant sentenced to 12 months' imprisonment imposed in September 2020 – Where delegate considered appellant had "been sentenced to a term of imprisonment of 12 months or more" within meaning of s 501(7)(c) – Where appellant unsuccessfully sought revocation of cancellation – Where Administrative Appeals Tribunal ("Tribunal") affirmed non-revocation decision – Where appellant released from immigration detention following decision in Pearson v Minister for Home Affairs (2022) 295 FCR 177 ("Pearson") – Where appellant succeeded in Full Federal Court on appeal and in original jurisdiction, declaring Tribunal's decision and cancellation decision invalid – Where following Pearson, Migration Amendment (Aggregate Sentences) Act 2023 (Cth) ("Amending Act") enacted – Where appellant taken back into immigration detention after commencement of Amending Act – Where appellant commenced proceedings in original jurisdiction of Federal Court for declaration items 4(3), 4(4) and 4(5)(b)(i) of Amending Act invalid, and writ of habeas corpus – Where Full Court dismissed application – Whether Full Court erred in not finding relevant items of Amending Act invalid usurpation or interference with judicial power of Commonwealth by reversing or dissolving effect of orders made by Chapter III court.
Constitutional law – Powers of Commonwealth Parliament – Acquisition of property on just terms – Whether Full Court erred in not finding relevant item of Amending Act effectuated acquisition of property other than on just terms contrary to s 51(xxxi) of Constitution by extinguishing cause of action for false imprisonment..
Documents
07/03/2024 Determination
15/03/2024 Notice of appeal
24/04/2024 Written submissions (Appellant)
24/04/2024 Chronology (Appellant)
22/05/2024 Written submissions (Respondent and Attorney-General of the Commonwealth of Australia, intervening)
05/06/2024 Written submissions (Attorney-General for the Northern Territory, intervening)
05/06/2024 Written submissions (Attorney-General of the State of Queensland, intervening)
05/06/2024 Written submissions (Attorney-General for the State of Western Australia, intervening)
19/06/2024 Reply
09/10/2024 Hearing (Full Court, Canberra) (Audio-visual recording)
09/10/2024 Outline of oral argument (Appellant)
09/10/2024 Outline of oral argument (Respondent and Attorney-General of the Commonwealth of Australia, intervening)
10/10/2024 Hearing (Full Court, Canberra) (Audio-visual recording)
10/10/2024 Outline of oral argument (Attorney-General for the Northern Territory, intervening)
10/10/2024 Outline of oral argument (Attorney-General of the State of Queensland, intervening)
10/10/2024 Outline of oral argument (Attorney-General for the State of Western Australia, intervening)
04/12/2024 Judgment (Judgment summary)
The King v. Hatahet
Case No.
S37/2024
Case Information
Lower Court Judgment
29/11/2023 Supreme Court of New South Wales (Court of Criminal Appeal) (Basten AJA, Davies, Cavanagh JJ)
Catchwords
Criminal law – Sentencing – Terrorism offences – Parole only available in exceptional circumstances – Manifestly excessive – Crimes Act 1914 (Cth), s 19ALB – Where respondent sentenced to imprisonment of 5 years with non-parole period of 3 years for engaging in hostile activity in foreign country – Where respondent successfully appealed sentence on basis aggregate sentence manifestly excessive – Where Court of Criminal Appeal resentenced respondent to imprisonment of 4 years with non-parole period of 3 years – Where s 19ALB inserted into Crimes Act by Counter-Terrorism Legislation Amendment (2019 Measures No 1) Act 2019 (Cth) – Where s 19ALB provides "the Attorney-General must not make a parole order... unless the Attorney-General is satisfied that exceptional circumstances exist to justify making a parole order" – Whether in sentencing for offence to which s 19ALB applies court should or may take into account effect of s 19ALB and unlikelihood of parole – Whether Court of Criminal Appeal erred in concluding sentencing judge committed error in principle in not considering s 19ALB of Crimes Act in sentencing respondent – Whether Court of Criminal Appeal erred in concluding expectation and/or fact parole would be refused due to s 19ALB of Crimes Act warranted imposition of lesser sentence than imposed by sentencing judge.
Documents*
07/03/2024 Determination
20/03/2024 Notice of appeal
03/04/2024 Written submissions (Appellant)
03/04/2024 Chronology (Appellant)
23/04/2024 Written submissions (Respondent)
29/04/2024 Reply
14/05/2024 Hearing (Full Court, Canberra) (Audio-visual recording)
14/05/2024 Outline of oral argument (Appellant)
14/05/2024 Outline of oral argument (Respondent)
12/06/2024 Judgment (Judgment summary)
Audio-visual recordings of Full Court hearings heard in Canberra
Case: OBIAN V THE KING
Date: 15 March 2024
Transcript: Hearing
AV time: 2h 02m
You accept the terms of use (below) by playing this audio-visual recording.
Terms of use
Access to the audio-visual recordings of the Court is subject to the following conditions:
(1) You will not record, copy, modify, reproduce, publish, republish, upload, post, transmit, broadcast, rebroadcast, store, distribute or otherwise make available, in any manner, any proceeding or part of any proceeding, other than with prior written approval of the Court. However, schools and universities may broadcast/rebroadcast proceedings in a classroom setting for educational purposes without prior written approval.
(2) The audio-visual material available via our web-site of Court proceedings does not constitute the official record of the Court.
(3) Copyright of the footage of the proceedings is retained by the Court.
By clicking "play" (the triangle controls on the video player), you agree to be bound by these terms of use.
Audio-visual recordings of Full Court hearings heard in Canberra
Case: BIRD V DP (A PSEUDONYM)
Date: 14 March 2024
Transcript: Hearing
AV time: 3h 12m
You accept the terms of use (below) by playing this audio-visual recording.
Terms of use
Access to the audio-visual recordings of the Court is subject to the following conditions:
(1) You will not record, copy, modify, reproduce, publish, republish, upload, post, transmit, broadcast, rebroadcast, store, distribute or otherwise make available, in any manner, any proceeding or part of any proceeding, other than with prior written approval of the Court. However, schools and universities may broadcast/rebroadcast proceedings in a classroom setting for educational purposes without prior written approval.
(2) The audio-visual material available via our web-site of Court proceedings does not constitute the official record of the Court.
(3) Copyright of the footage of the proceedings is retained by the Court.
By clicking "play" (the triangle controls on the video player), you agree to be bound by these terms of use.