Jason Donnelly and Chris Honnery

Plaintiff S15/2025 concerned an application in the High Court’s original jurisdiction brought on behalf of a Syrian refugee who was refused a resident return visa under s 501(1) of the Migration Act 1958 (Cth).

Shortly before the final hearing, the Minister for Immigration and Citizenship conceded that the decision to refuse the Plaintiff’s visa was affected by jurisdictional error. Consequently, the matter was resolved by consent, such that the High Court will not deliver a judgment that would have considered the Executive’s responsibilities in respect of refugees permanently residing in Australia who seek to re-enter the country following a temporary departure. This post unpacks the central issues in the case, including the scope of Australia’s non-refoulement obligations and potential 'constructive refoulement', considers the implications of the Minister’s concession, and analyses the impugned decision to identify lessons for practitioners.

Douglas McDonald-Norman

In order to determine whether a decision is affected by jurisdictional error, a court must ask two questions. Has an error occurred, in breach of the statutory conferral of power to make that decision? And, if so, was that error material to the decision-maker’s ultimate exercise of power? For an error to be material, an applicant for review must establish that there is a realistic possibility that, if not for the error, the decision-maker’s ultimate exercise of power could have been different.

David Hume

In SDCV v Director-General of Security [2022] HCA 22, the High Court held, 4:3, that it was constitutionally-permissible for the Federal Court to have regard to 'closed' information, which was known to the Court and the Government’s lawyers, and was the subject of 'closed' submissions involving the judges and the Government’s lawyers but was not disclosed to SDCV or his lawyers. The key issue in the case was whether the statutory scheme established by the Administrative Appeals Tribunal Act 1975 (Cth) – which permitted the Federal Court to rely on closed information, while prohibiting it from being disclosed to SDCV – required or permitted the Federal Court to act in a procedurally unfair way.

In this post, I first address the factual and procedural background (which are interesting in and of themselves); secondly, I address some key aspects of the majority’s reasoning; and, thirdly, I make some observations on the reasoning and outcome.

Alan Robertson SC

Dr Amanda Sapienza’s Judicial Review of Non-Statutory Executive Action is an important work because it has as its centre of attention non-statutory executive action, rather than dealing with it, however well, in a more general context of public law. In this second category I would include, for …

Sangeetha Pillai

It’s coming up to the 30th birthday of Australia’s policy of mandatory immigration detention for non-citizens who do not hold a visa. Throughout its lifetime, the policy has remained a controversial cornerstone of Australia’s migration law framework, facing – and withstanding – multiple High Court challenges.