FEDERAL COURT OF AUSTRALIA

Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC [2024] FCAFC 34

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the first, second and third appellants be granted leave to appeal.

2.    The appeal be dismissed.

3.    The first appellant pay the costs of the appeal to be taxed, if not agreed.

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

REASONS FOR JUDGMENT

SARAH C DERRINGTON

INTRODUCTION

1    By application filed on 7 September 2023, the Minister for Immigration, Citizenship and Multicultural Affairs, together with the Secretary of the Department of Home Affairs and the Relevant Officer under s 198 of the Migration Act 1958 (Cth), seek leave to appeal from the orders of the primary judge in MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 989 (J), restraining the Minister, the Department, the Relevant Officer, and their officers, employees or agents (together, the Commonwealth parties) from removing the respondent, MZAPC, from Australia until final orders are made in the originating process or further order of the Court.

2    By his originating application in the original proceeding, filed on 8 August 2023, MZAPC seeks declarations, pursuant to s 39B of the Judiciary Act 1903 (Cth), that the decision on, or finalisation of, (alleged) requests for ministerial intervention pursuant to ss 195A and 417 of the Migration Act in relation to his circumstances involved an error of law; exceeded the executive power of the Commonwealth; and that the requests were not finalised. Further, he seeks a writ of certiorari quashing the decision; a writ of mandamus compelling the referral of (alleged) ministerial intervention requests to the Minister; and an injunction restraining the Commonwealth parties from removing him from Australia while the ministerial intervention requests are pending, or until the Minister has had a reasonable time to consider such requests, if he wishes to do so.

3    The Minister contends that leave to appeal ought to be granted for two reasons. First, relying on the Minister’s proposed grounds of appeal, the decision of the primary judge to grant an interlocutory injunction is attended by sufficient doubt to warrant the decision being considered by the Full Court. Second, refusal to grant leave would cause substantial injustice to the Commonwealth parties. This is said to be because the errors will not be able to be corrected in the substantive proceeding because the grant of an interlocutory injunction will not fall for determination in that proceeding. Further, the decision concerns the proper administration of the Migration Act and has consequences beyond this proceeding.

4    The Minister raised three proposed grounds of appeal:

1.    In determining there was a serious question to be tried as to the grant of declaratory relief, the primary judge failed to have regard to the fact that MZAPC’s requests made in June and July 2023 had not been finalised by the Department.

2.    In determining the balance of convenience, the primary judge erred in describing the subject matter of the proceedings as MZAPC’s interest in remaining in Australia.

3.    In determining the balance of convenience and/or the exercise of discretion, the primary judge failed to have regard to:

(a)    the fact that MZAPC’s requests made in June and July 2023 had not been finalised by the Department;

(b)    the existence of an undetermined request that the Minister exercise power under ss 48B, 195A, 351 or 417 of the Migration Act does not provide a basis not to comply with the duty to remove under s 198(6); and

(c)    the declaratory relief sought by MZAPC would not, even if granted, create any legal right, entitlement or interest to provide a basis not to comply with the duty to remove under s 198(6).

5    At the crux of this application is the legitimacy of the remedy of an interlocutory injunction in the circumstances of this case. Since the decision in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; 97 ALJR 214, it cannot be gainsaid that, if successful at trial, MZAPC would have a sufficient material interest to seek a declaration in relation to the ‘decisions’ he impugns. As was said in Davis (at [62] per Kiefel CJ, Gageler and Gleeson JJ; [289] per Jagot J), the sufficiency of that interest arises from the fact that a declaration of right that MZAPC’s request for ministerial intervention under one or more of ss 48B, 195A, 351 or 417 of the Migration Act, as pleaded, is yet to be lawfully finalised. Such a declaration may well produce foreseeable consequences for the Commonwealth parties, including consideration by the Minister of any of MZAPC’s requests for intervention that are determined to have exceeded the executive power of the Commonwealth.

6    The question before this Court is whether, additionally, MZAPC has a sufficient material interest to seek an interlocutory injunction to restrain the Commonwealth parties from complying with their statutory duty under s 198 of the Migration Act.

7    I regret that I have formed a view that differs from the learned judges who form the majority. For the reasons that follow, I consider that the answer to the question before the Court must be ‘No’. Consequently, I would grant the application for leave to appeal and allow the appeal.

BACKGROUND

8    MZAPC is an Indian national who entered Australia on a student visa in January 2006, which expired in March 2008. He has been in immigration detention since June 2016, when he was released from prison after serving a six-month custodial sentence for drug-related offences. MZAPC has spent the better part of two decades litigating to stay in Australia despite a series of decisions which, ordinarily, would have seen him returned to India much earlier. There is no explanation as to why that did not happen.

9    Prior to the expiration of his student visa, MZAPC applied, on 30 August 2007, for a General Skilled Migration visa, but that was refused on 18 April 2012. He applied to the Migration Review Tribunal on 16 May 2012 to challenge that refusal. The application was out of time and the Migration Review Tribunal dismissed the application in September 2013. In October 2013, he applied for a protection visa, but that application was refused. A further application for a protection visa made on 21 January 2014 was also refused and the refusal was subsequently affirmed on review by the Refugee Review Tribunal. MZAPC then applied to the then Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia), who dismissed his application: MZAPC v Minister for Immigration [2016] FCCA 1414. His appeal to this Court was also dismissed: MZAPC v Minister for Immigration and Border Protection [2019] FCA 2024 (Mortimer J). The High Court dismissed his appeal from that decision on 19 May 2021: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506.

10    Since his first visa refusal, MZAPC had held a bridging visa. That visa was, however, cancelled in November 2015 following his conviction in November 2015 for drug-related offences, pursuant to s 116(1)(g) of the Migration Act and reg 2.43(1)(p)(ii) of the Migration Regulations 1994 (Cth). He received re-notification of that cancellation in May 2022 and sought review of that decision in the Administrative Appeals Tribunal. In July 2022, the Tribunal affirmed the cancellation decision. He appealed to the Federal Circuit and Family Court of Australia in August 2022, but discontinued those proceedings in February 2023.

11    As at this time, MZAPC has exhausted all possible avenues of review and appeal from the refusal to grant him another visa and the decision to cancel his bridging visa.

12    Nevertheless, MZAPC remains optimistic that the Minister may exercise his personal powers of intervention to grant him a visa. In the original proceeding, MZAPC deposed to having sought to have the Minister exercise his powers under ss 195A, 197AB, 351, 417 or 48B, albeit the originating application seeks relief only in respect of requests said to have been made under ss 195A, 197AB (albeit erroneously referring to s 195AB) and 417. Those requests span the period between November 2016 and July 2023.

13    Each of the powers in ss 195A, 197AB, 351, 417 and 48B (or “[liberties]”, as Edelman J has more properly characterised them: Davis at [123]) are reposed in the Minister personally and are exercisable in a manner favourable to a non-citizen. The powers in ss 351 and 417 are exercisable after an adverse decision of the Tribunal – in the case of s 417, in respect of protection visas, and in the case of s 351, in respect of other visas. Those powers enable the Minister to substitute a more favourable decision than that made by the Tribunal. Section 195A empowers the Minister to grant a visa to a person in detention if the Minister thinks it is in the public interest to do so. Subject to the same public interest requirement, the Minister is similarly empowered under s 197AB to make a residence determination and, under s 48B, to permit a person to make a further application for a protection visa where one has already been cancelled or refused.

14    In the circumstances, where MZAPC has exhausted his avenues of review and appeal, s 198(6) of the Migration Act compels his removal from Australia as soon as reasonably practicable. The injunction granted by the primary judge prevents the Relevant Officer from so complying.

RELEVANT LEGISLATIVE PROVISIONS

15    It is necessary to consider the relevant provisions of the Migration Act. Section 4(1) provides that the object of the Act is to “regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”. Section 4(2) provides that, to “advance its object”, the Act “provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain”. Further, to “advance its object”, s 4(4) states that the Act, “provides for the removal … from Australia of non-citizens whose presence in Australia is not permitted by this Act”.

16    The status of “lawful” and “unlawful” “non-citizens” is dealt with in ss 13 and 14 respectively. Section 14 provides that an “unlawful non-citizen” is a non-citizen who is “in the migration zone” (for present purposes, Australia: s 5(1)). Section 13 provides that a “lawful non-citizen” is a non-citizen who is “in the migration zone” and holds an effective “visa”. By these provisions, a clear line is drawn between those non-citizens who are entitled to remain in Australia in accordance with any visa requirements, and those who are not so entitled, and who must therefore be removed as soon as reasonably practicable: Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; 251 CLR 1 at [178] per Hayne J.

17    The statutory obligation to detain an unlawful non-citizen is contained in s 189. Relevantly for present purposes, it provides:

189 Detention of unlawful non-citizens

(1)    If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

18    Section 196 is concerned with the duration of detention. It provides:

196 Duration of detention

(1)    An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

(a)    he or she is removed from Australia under section 198 or 199; or

(aa)    an officer begins to deal with the non-citizen under subsection 198AD(3); or

(b)    he or she is deported under section 200; or

(c)    he or she is granted a visa.

(2)    To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.

(3)    To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa.

(4)    Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.

(4A)    Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.

(5)    To avoid doubt, subsection (4) or (4A) applies:

(a)    whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and

(b)    whether or not a visa decision relating to the person detained is, or may be, unlawful.

(5A)    Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.

(6)    This section has effect despite any other law.

(7)    In this section:

visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).

19    The authority and duty to detain an unlawful non-citizen in accordance with s 189(1) comes with a correlative obligation in s 198 to remove an unlawful non-citizen from Australia “as soon as reasonably practicable”. Relevantly, it provides:

198 Removal from Australia of unlawful non-citizens

…

(6)      An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a)      the non-citizen is a detainee;

(b)     the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(c)      one of the following applies:

(i)      the grant of the visa has been refused and the application has been finally determined;

(ii)      the visa cannot be granted; and

(d)      the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.

(Emphasis added.)

20    MZAPC’s requests for ministerial intervention were made pursuant to ss 48B, 195A, 197AB, 351 and 417 of the Migration Act.

21    Having applied for and been refused a protection visa, s 48A prevents MZAPC from making a further application for a protection visa while he is in the migration zone. Section 48B provides, relevantly:

(1)     If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.

(2)     The power under subsection (1) may only be exercised by the Minister personally.

…

(6)     The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.

22    Section 195A confers power on the Minister to grant a detainee a visa. It provides, relevantly:

195A Minister may grant detainee visa (whether or not on application)

…

(1)    This section applies to a person who is in detention under section 189.

…

(2)    If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

…

(4)    The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.

…

(5)    The power under subsection (2) may only be exercised by the Minister personally.

23    Section 351 relates to decisions made by the Tribunal under Part 5. The refusal of MZAPC’s application for a General Skilled Migration was a decision made under Part 5. So, too, was the decision to cancel his bridging visa following his conviction. It provides, relevantly:

351 Minister may substitute more favourable decision

(1)     If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

…

(3)     The power under subsection (1) may only be exercised by the Minister personally.

…

(7)    The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

24    Section 417 relates to decisions made by the Tribunal under Part 7, and is in counterpart terms to s 351. The refusal of MZAPC’s application for a protection visa was a decision made under Part 7. It provides, relevantly:

417 Minister may substitute more favourable decision

(1)     If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

…

(3)     The power under subsection (1) may only be exercised by the Minister personally.

…

(7)    The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

SHOULD THE COMMONWEALTH PARTIES BE RESTRAINED?

25    Although s 23 of the Federal Court of Australia Act 1976 (Cth) empowers the Court to make “orders of such kinds, including interlocutory orders … as the Court thinks appropriate”, it does not authorise the granting of an injunction where, whether under general law or statute, there is otherwise no basis for the grant of injunctive relief: Cardile v LED Builders Pty Ltd [1999] HCA 18; 198 CLR 380 at [33].

26    The circumstances which are said by MZAPC to entitle him to injunctive relief are not derived from any relief sought in respect of s 198; rather, they arise from a parallel process which does not derogate from the duty to remove, once that duty is established.

Was there a serious question to be tried?

27    The primary judge concluded there was a serious question to be tried in respect of how MZAPC’s requests for the exercise of power by the Minister under ss 195A and 417 had, in reliance on “Guidelines on Minister’s detention intervention power (s 195A of the [Act]) (November 2016)” (2016 Ministerial Guidelines), been “decided” by officers of the Department not to be referred to the Minister, ultra vires of the relevant power: J[8], [49].

28    In respect of each of these powers:

a.    they are exercisable by the Minister personally;

b.    they are exercisable in the public interest;

c.    the Minister has no duty to consider whether to exercise the power; and

d.    they are privative clause decisions and therefore not reviewable (Migration Act ss 476A, 474(7)).

29    In relation to the asserted requests for ministerial intervention made by MZAPC, or on his behalf, prior to 2023, the evidence before the primary judge disclosed that decisions of the Department relating to the powers contained in, inter alia, s 417, were made in purported compliance with the “Minister’s guidelines on ministerial powers (s 351, s 417 and s 501J of the [Act]) (March 2016)” (2016 Ministerial Instructions): J[8]. Similarly, decisions of the Department relating to the powers contained in s 195A were made in purported compliance with the 2016 Ministerial Guidelines: J[8].

30    In Davis, the High Court explained the transgressions of the statutory limitation on executive power perpetrated by the 2016 Ministerial Instructions (at [33]-[42] per Kiefel CJ, Gageler and Gleeson JJ; [170]-[172] per Edelman J; [315]-[318] per Jagot J; contra at [202]-[219] per Steward J). By the 2016 Ministerial Guidelines, the Minister instructed as to the circumstances in which he wished to be put in a position to consider making a decision under s 351: Davis at [19]. Only if the Department assessed the case to have “unique or exceptional circumstances” was it to be brought to the Minister; otherwise, the Department was to finalise it: Davis at [35]-[38]. Similarly, “repeat requests” were not to be brought to the Minister unless the Department assessed that there had been a significant change in circumstances raising new substantive issues which had unique or exceptional features: Davis at [35]. “[U]nique or exceptional” circumstances were described non-exhaustively in a manner described by Kiefel CJ, Gageler, and Gleeson JJ as “an approximation of the public interest”: Davis at [36], [38]. Consequently, their Honours said, at [38]:

By instructing that those cases assessed by the Department not to have unique or exceptional circumstances were to be finalised by the Department without referral, the Minister purported to entrust the dispositive evaluation of the public interest to departmental officers. The Minister thereby exceeded the statutory limit on executive power imposed by s 351(3).

31    Those same transgressions pertain to the 2016 Ministerial Guidelines.

32    As to the requests made under ss 48B, 351 and 417 on 18 June 2023, under ss 195A and 197AB on 3 July 2023, and again under ss 351 and 417 on 4 July 2023, there was unequivocal hearsay evidence before the primary judge that the Department had not finalised these requests: J[36]. The primary judge found that there was no serious question to be tried on the question of whether an officer of the Department had made a decision in respect of these requests in purported compliance with the 2016 Ministerial Instructions or the 2016 Ministerial Guidelines: J[37].

33    There remained, however, a serious question regarding the “decisions” made by officers of the Department on the asserted requests prior to 2023: J[49]. Those findings could not be criticised if the cause of action relied upon to support the injunction depended on whether those “decisions” were an exercise of power in excess of jurisdiction. The resolution of that question must be determined at trial. If MZAPC is successful at trial, he will, prima facie, be entitled to the declarations and writs of certiorari and mandamus sought in his originating application. This was explained by the High Court in Commonwealth of Australia v AJL20 [2021] HCA 21; 273 CLR 43, at [51]-[52]:

[51]    The duty imposed upon officers of the Executive by ss 189(1) and 196(1) of the Act is to detain the unlawful non-citizen until the occurrence of one of the events referred to in s 196. The duty so imposed by the Act is neither conditional upon, nor co-extensive with, the intents or purposes of officers of the Executive towards the detainee.

[52]    Where the Executive is dilatory in performing the hedging duties imposed upon it, as French J observed, the remedy of mandamus is available to compel the proper performance of those duties. It is precisely because the hedging duties may be enforced so as to bring the detention of the unlawful non-citizen to an end that the executive detention authorised and required by ss 189 and 196 can be seen to be within the Parliament's power under s 51(xix) of the Constitution as limited by the implications of Ch III. These hedging duties are not things written in water. A failure on the part of the responsible officers of the Executive to comply with an order of the court mandating performance of their statutory duties may result in those officers being committed to prison for contempt of court. By this means, judicial power is exercised to give effect to the scheme of the Act, enforcing the supremacy of the Parliament over the Executive.

(Emphasis in original).

34    Whether he would also be entitled to final injunctive relief is doubtful, not merely because of the form in which it has been sought, but because the practical consequence of granting an injunction to restrain MZAPC’s removal pending the exercise of a personal, non-compellable power is likely to result in his remaining, impermissibly, in indefinite detention: NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005.

35    The issue which arises in the proposed appeal, however, is not whether there is a serious question to be tried in relation to the alleged exercise of power in excess of jurisdiction by officers of the Department. So much can be accepted. What is at issue is whether MZAPC has identified the existence of a legal or equitable right sufficient to support the interlocutory injunction: Cardile at [31] per Gaudron, McHugh, Gummow and Callinan JJ. This question was not put squarely to the primary judge. The Minister says none has been identified; MZAPC contends that there is a serious question to be tried as to whether injunctive relief lies, in circumstances such as these to postpone removal pending undetermined requests, for the purpose of preserving the life of a party.

The existence of a legal or equitable right

36    MZAPC contends that the Court’s processes will be frustrated if he is removed to India because his life will be in peril if he returns, thereby undermining the integrity of the process once set in motion: CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; 189 CLR 345 at 391. He relies on the decision in Tait v The Queen; Scott v Chief Secretary [1962] HCA 57; 108 CLR 620, in which the High Court made an order staying the execution of Mr Tait pending disposal of his applications for special leave and of any appeal to the High Court. In Tait, the lawfulness of the execution was in issue. There was therefore a substantive connection between the interlocutory relief sought and the controversy between the parties. Similarly, as was pointed out by Mortimer J (as the Chief Justice then was) in CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [80], in the context of the interlocutory relief sought in relation to transfers from Nauru (see, for example, FRM17 v Minister for Home Affairs [2019] FCAFC 148; 271 FCR 254):

… interlocutory relief was … appropriate to preserve, or avoid further risks to, the health (and sometimes the lives) of the individuals who sought to bring proceedings where the cause of action was an allegation of negligence in relation to their physical health on Nauru. The very state said to have been neglected by the respondents was said to be at further risk without interlocutory relief.

37    Those cases are not analogous with the present. Whilst the Court accepts MZAPC holds genuine fears for his safety, that is not a circumstance alleged to have been created by the Minister (cf FRM17), nor is the validity of his removal pursuant to s 198(6) challenged (cf Tait). It has been determined that he is not entitled to a protection visa.

38    The primary judge approached the injunction in this case on the same basis as that described in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1; namely, whether failure to grant the injunction, despite the undoubted duty to remove the applicant, would frustrate the Court’s processes: J[16], [52]. The primary judge held, when weighing the balance of convenience, that granting the injunction “is the course that carries the lower risk of injustice” because “here, the countervailing and greater risk of injustice is that of frustrating the Court’s supervisory jurisdiction that entails ensuring that the exercise of executive power takes place within the legislative limits of that power”: J[75].

39    In Patrick Stevedores at [35], Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ said:

The powers of the Federal Court under s 23 of its Act are powers “to make orders of such kinds, including interlocutory orders, as it ‘thinks appropriate’”, as Deane J noted in Jackson v Sterling Industries Ltd. He added:

“Wide though that power is, it is subject to both jurisdictional and other limits. It exists only ‘in relation to matters’ in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to the making of the ‘kinds’ of order, whether final or interlocutory, which are capable of properly being seen as ‘appropriate’ to be made by the Federal Court in the exercise of its jurisdiction.”

One limitation on the powers of the Federal Court to grant interlocutory injunctions is that those powers must be exercised for the purpose for which they are conferred. In a later passage of the judgment of Deane J in Jackson v Sterling Industries Ltd, his Honour said a power to prevent the abuse or frustration of a court’s process should be accepted “as an established part of the armoury of a court of law and equity” and that “the power to grant such relief in relation to a matter in which the Federal Court has jurisdiction is comprehended by the express grant to that Court by s 23 of the Federal Court of Australia Act”. But, his Honour observed, orders must be framed “so as to come within the limits set by the purpose which [the order] can properly be intended to serve”. The Mareva injunction is the paradigm example of an order to prevent the frustration of a court’s process, but other examples may be found. The moulding of an interlocutory injunction must depend upon the circumstances of each case. As Brennan J observed in Jackson v Sterling Industries Ltd:

“A judicial power to make an interlocutory order in the nature of a Mareva injunction may be exercised according to the exigencies of the case and, the schemes which a debtor may devise for divesting himself of assets being legion, novelty of form is no objection to the validity of such an order.”

The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked. The Federal Court had jurisdiction to make interlocutory orders to prevent frustration of its process in the present proceeding.

(Footnotes omitted. Emphasis added.)

40    The circumstances of that case are very different from those currently being considered. In Patrick Stevedores, the facts underpinning the conduct sought to be restrained had not been determined and remained subject to trial and the exercise of the power to make final orders. The frustration of the Court’s process in that context, had the injunction not been granted, was obvious.

41    It was accepted that the Court has power in public law cases to grant an interlocutory injunction to restrain the performance of a statutory duty to preserve the status quo and to protect the integrity of its processes: Simsek v MacPhee (Minister for Immigration and Ethnic Affairs) (1982) 148 CLR 636 at 641. In Simsek, the applicant applied for an interlocutory injunction to restrain his deportation pending the determination of his refugee status. Stephen J said, at 641:

If the power of deportation which Parliament has given to the Minister is to be interfered with in a case such as the present, where the applicant neither denies that he was a prohibited immigrant nor contests the validity of the making of the deportation order itself, the applicant must in my view first make out a prima facie case for injunctive relief in accordance with the principles referred to in Beecham Group Ltd v Bristol Laboratories Pty Ltd.

42    The Minister contends that, rather than preserving the status quo pending the resolution of a substantive cause of action challenging the basis for the duty to remove (which could undoubtedly ground injunctive relief), the injunction directs the Commonwealth not to comply with a duty to remove that has crystallised. The Minister relies on a passage in The Attorney-General of the Corporation of Tamworth v Birmingham, Tame and Rea District Drainage Board [1912] AC 788 at 795, in which the Lord Chancellor stated that “[a] Court of law has no power to grant a dispensation from obedience to an Act of Parliament”.

43    MZAPC challenges the Minister’s contention on the basis that the injunction does not compel an unlawful act because, for so long as the injunction is in place, is it is not “reasonably practicable” for him to be removed, and so the associated duty has not yet crystallised.

44    MZAPC has not sought to impugn the underlying basis for his removal from Australia pursuant to s 198(6). Nor could he. The command is clear – an officer must remove as soon as reasonably practicable an unlawful non-citizen. There is no dispute that MZAPC is an unlawful non-citizen. There is also no dispute that MZAPC is a detainee (s 198(6)(a)), nor that he made a valid application for a substantive visa (see his application for a protection visa on 21 January 2014) which can be granted when an applicant is in the migration zone: Migration Regulations, Sch 1 item 1403(3)(b); Migration Act s 198(6)(b). Further, there is no dispute that the grant of the visa has been refused and that the application has been finally determined (s 198(6)(c)), MZAPC having exhausted all avenues of appeal, including to the High Court of Australia. The Tribunal found that he did not face a real chance of persecution in the reasonably foreseeable future and, consequently, was not entitled to a protection visa.

45    MZAPC has not made another valid application for a substantive visa (being one that is not a bridging visa, a criminal justice visa, or an enforcement visa: see Migration Act s 5) that can be granted when the applicant is in the migration zone: s 198(6)(d). “Requests” for more favourable decisions under ss 351 or 417 of the Migration Act, or for the Minister to exercise his power under ss 195A or 48B are not “applications for a substantive visa”. So much is made clear by the requirements for a valid visa application specified in s 46 of the Migration Act.

46    MZAPC did not challenge the construction of s 198(6) before the primary judge. The existence of a pending request cannot, on a proper construction of s 198(6) within the scheme of the Migration Act, postpone the duty to remove. The consequence of the grant of an injunction would be to “interrupt and override the course envisaged and required by the legislative scheme”: CPK20 at [80]. This is the risk of injustice to the repository of public power identified by Mortimer J (as the Chief Justice then was) in CPK20 at [15], in the context of an application for an injunction to prevent removal pending a request for ministerial intervention under s 351:

the ‘risk of injustice’ to the repository of a public power … may … relate to the frustration of legislative intention within a legislative scheme, or the interruption of the course otherwise contemplated by law.

47    Her Honour went on to say, at [80]:

Any grant of interlocutory relief by the Court will interrupt and override the course envisaged, and required, by the legislative scheme in the Migration Act. There must be a reasonable justification for the Court’s orders to interrupt the course which Parliament intends to occur, once a person has exhausted her or his avenues to secure a visa, including review and appeal. The purpose of the grant of interlocutory relief is to ensure that the Court can, at trial, do justice between the parties in the matter which is before it. As a Full Court of this Court explained, the nature and extent of interlocutory orders which might be made under s 23 of the Federal Court of Australia Act 1976 (Cth) may depend on what the controversy is between the parties: see Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] FCA 41; 34 FCR 169. This is not an application of that kind, because the interlocutory relief sought has no substantive connection with the controversy between the parties in the proceeding, nor with the final relief sought.

(Emphasis added.)

48    A request that the Minister exercise a personal and non-compellable power does not give rise to some form of requirement for the Minister to indicate whether or not the request was to be considered, nor does it require the mandatory terms of s 198(6) to be qualified by a further condition: MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 877 at [27], [30] per Colvin J. As his Honour said, at [40], it is a “false premise that any request for the exercise of the personal non-compellable powers may be ‘pending’”. His Honour continued, at [40]:

It seeks to give statutory significance to a request that the power be exercised in circumstances where the nature of the power is such that no person other than the Minister can make a procedural decision as to whether to consider exercising the power. An obligation to make a procedural decision as to whether to consider the exercise of the power cannot arise from the making of a request any more than it can arise from the formation of a judgment by departmental officers.

49    Further, even if the requests have not been brought to his attention because he has impermissibly fettered his power by the 2016 Ministerial Guidelines, by the terms of the statute, the Minister was under no duty to even (see, for example, s 351(7)):

consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

(Emphasis added.)

50    In this respect, the circumstances of the present case are analogous to those in Simsek, in respect of which Stephen J refused relief. In that case, the applicant’s asserted material interest was an expectation that his application should be treated by the Minister, acting through the Committee, in a manner consistent with the Convention Relating to the Status of Refugees (the Geneva Convention of 28 July 1951) and the associated Protocol Relating to the Status of Refugees (the 1967 Protocol) which were not at that time part of Australia’s domestic law. Consequently, Stephen J held that even if the applicant had a right arising under the Convention, it would not have been enforceable in the High Court. Having no justiciable right, Stephen J held, at 644:

… the only possible legitimate expectation which might be said to have arisen was not that he would be granted refugee status but that the Committee would consider his application in conformity with its own established procedures and this it is now doing.

51    Similarly, in the present case, the only right that might be said to have arisen is not the right to have the Minister consider his requests, but only the right to seek declarations as to the lawfulness of the decisions made in purported compliance with the 2016 Ministerial Guidelines, and a writ of certiorari to quash those decisions. Contrary to the relief sought in his originating application, MZAPC does not have a right to a writ of mandamus “to require the Second Respondent to cause the requests to be referred to the Minister so that they can be considered and determined according to law” (emphasis added). That is because the Minister has no duty to consider any such requests nor to determine them. In circumstances where MZAPC does not have a right to have any request considered by the Minister, there can be no duty that gives rise to a sufficient material interest to ground an injunction.

52    Courts of equity have long held that an injunction will be refused where it is impossible or futile: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116; 154 FCR 425. It is both impossible and futile to enjoin the Commonwealth parties from removing MZAPC – the Court’s processes cannot be invoked as a circuitous means of compelling the Minister to consider and determine requests when he has no duty to do so.

53    Further, the consequence of the grant of the interlocutory injunction is that MZAPC remains in immigration detention pending the conclusion of the substantive proceedings, at which point he concedes it will be “reasonably practicable” to remove him. Accordingly, and as has already been observed, the consequence of a final injunction would likely be unlawful indefinite detention.

DISPOSITION

54    The preconditions specified in s 198(6) having been met, and there being no legal challenge to any of those preconditions which have engaged the Court’s processes, it cannot be correct that the interlocutory injunction sought by MZAPC is intended to prevent the abuse or frustration of the Court’s process, which has been engaged in relation to different provisions of the Migration Act that confer personal, non-compellable powers of intervention on the Minister. The relief sought by MZAPC is not connected to the preconditions for the exercise of the statutory duty in s 198(6).

55    To the contrary, the relief sought is consequential upon a finding that the officers of the Department acted beyond power in failing to bring MZAPC’s requests for intervention to the Minister’s attention, in circumstances where the Minister has no duty to consider whether he might decide to personally intervene. The Court’s processes in determining whether to grant relief in respect of this matter will not be frustrated by MZAPC’s removal. The Court will be able to exercise its supervisory power over decisions of the Executive made beyond power by declaration and a writ of mandamus, should MZAPC succeed at trial.

56    Whilst the Court is sympathetic to MZAPC’s fear of returning to India, his remedy is to make a request to the Minister under s 48B – something he has already done and which, on the evidence before the primary judge, has not yet been finalised. There is no evidence that that request has been the subject of a decision in purported compliance with the 2016 Ministerial Guidelines.

57    Leave to appeal should be granted and the appeal allowed. MZAPC should pay the costs of the appeal.

Associate:

Dated:        18 March 2024

REASONS FOR JUDGMENT

COLVIN AND JACKSON JJ:

58    Section 198(6) of the Migration Act 1958 (Cth) requires an officer of the Department of the Minister to remove from Australia as soon as reasonably practicable any person who is not a citizen and who is not lawfully in the 'migration zone' if that person has been taken into immigration detention and does not have a pending valid application for a visa.

59    The Migration Act also confers non-compellable powers upon the Minister personally which, if exercised in respect of a person who must be removed, would have the consequence that s 198 would no longer apply to that person (Powers): see s 48B, s 195A, s 351 and s 417. The Minister has no duty to consider whether to exercise any of the Powers each of which is to be exercised in the public interest as adjudged by the Minister: s 48B(6), s 195A(4), s 351(7) and s 417(7). The Powers arise in the various circumstances specified in the Migration Act.

60    In Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10, it was determined that the evaluation of the public interest for the purpose of determining whether to exercise the power conferred by s 351 of the Migration Act was entrusted to the Minister alone, thereby excluding the executive authority to entrust to officers of the Minister's department any aspect of the evaluation of that interest in a particular case. It was also determined that the Minister could make a procedural decision identifying, by particular characteristics, a class of requests in respect of which the Minister will consider exercising the power or a class of requests in respect of which the Minister will not consider exercising the power (or both). Further, officers of the department may give effect to that procedural decision by only bringing to the Minister those requests that are in the requisite class.

61    However, where guidelines had been issued by the Minister, which required officers of the Minister's department to assess whether particular requests to exercise the power had unique or exceptional circumstances, it was determined that those guidelines purported to confer upon those officers executive authority which exceeded that which was permitted by reason of the power being entrusted in the Minister personally.

62    The logic of the reasoning in Davis applies equally to the other Powers, each of which entrusts to the Minister a power to be exercised personally by the Minister in the public interest.

63    However, the decision in Davis did not consider whether the making of a request, of itself, had any consequence for the performance of the duty to remove under s 198. In particular, it did not consider whether the future possibility of the exercise of one of the Powers in favour of a person in respect of whom the duty to remove otherwise arose might require an officer to defer performance of the duty to remove or be a basis upon which an officer may defer the performance of that duty. It also did not consider whether an officer of the Minister's department who received a request for the exercise of the Power had a compellable duty to bring the request (or the fact that the request had been made) to the attention of the Minister.

64    In other cases in this Court, individuals to whom s 198(6) applies have raised issues as to whether the making of a request for the exercise of the Powers by the Minister or the pendency of the request or the manner in which it is dealt with by officers of the Minister's department are matters which may have consequences for the performance of the statutory duty to remove the person from Australia as soon as reasonably practicable. In particular, various arguments have been advanced as the basis upon which an extant request for the exercise of one of the Powers may form the basis for the grant of an interlocutory injunction restraining removal under s 198(6) of the Migration Act. As will emerge, those arguments have met with mixed success.

The nature of the present case

65    A citizen of India (who, in circumstances where his application has been anonymised, we will refer to as the requesting party) is being held in immigration detention. He was notified that it is intended that he be removed from Australia to India. He does not have a pending valid application for a visa. He made requests in June and July 2023 for the Minister to exercise certain of the Powers in his favour (Recent Requests). He also claims to have made other requests in the past (Past Requests). As to each of those Past Requests he says that he was informed by the person who was his case manager at the time that the request was refused by officers of the Minister's department without referring them to the Minister.

Application for relief by the requesting party

66    The requesting party commenced proceedings for relief under s 39B of the Judiciary Act 1903 (Cth). Broadly speaking, the relief he sought was in the following terms:

(1)    declarations that decisions had been made by officers of the Minister's department refusing his requests for the exercise of the Powers by the Minister which decisions exceeded the executive power of the Commonwealth;

(2)    declarations that his requests had not been finalised;

(3)    certiorari to quash the decisions made concerning the requests;

(4)    mandamus to require by the relevant officer to cause the requests to be referred to the Minister;

(5)    prohibition or an injunction to prevent the Minister and the officers of his department from giving effect to or relying upon the decisions made concerning the requests;

(6)    an injunction restraining his removal from Australia “while the requests are pending”;

(7)    alternatively to (6), an injunction restraining his removal from Australia “until the Minister has had a reasonable time to consider the requests if he wishes to do so”;

(8)    costs; and

(9)    such other order as the Court thinks appropriate.

67    In addition, the requesting party sought an interlocutory injunction restraining his removal from Australia pending the determination of his application and any related appeal. He relied upon the reasoning in Davis and asserted that decisions had been made by officers of the Minister's department in respect of requests by him for the favourable exercise of the Powers. It was alleged that those decisions had been made by giving effect to Ministerial guidelines in circumstances where the decisions exceeded executive authority. The Davis-type claim was the sole basis upon which relief was sought.

The reasoning of the primary judge

68    The application by the requesting party for an interlocutory injunction was successful: MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 989 (PJ). In deciding to grant the interlocutory injunction, the primary judge reasoned as follows:

(1)    In Davis the plurality found that the guidelines that had been in place by which instructions were given by the Minister to departmental officers as to how to deal with requests exceeded the executive power entrusted to the Minister personally by s 351 because the guidelines ‘purported to entrust the dispositive evaluation of the public interest to departmental officers’: PJ[11].

(2)    In consequence, the reasoning in Davis was a sound legal basis for the declaratory relief sought in the proceedings in respect of requests that were alleged not to have been referred to the Minister in compliance with guidelines the subject of the decision in Davis: PJ[14].

(3)    The extent to which the requesting party might be entitled to additional relief to compel the requests to be referred to the Minister was found to be ‘more problematic’ and a matter that ‘need not be explored’ on the application for interlocutory relief: PJ[14].

(4)    There was affidavit evidence that supported the factual claim that the Past Requests had been made and assessed by officers of the Minister's department against the guidelines that had been in place and there was a factual contest as to whether that was so which gave rise to a serious question to be tried as to that matter: PJ[48]-[49].

(5)    Taking into account the evidence for the Minister, there was no serious question to be tried as to whether officers of the Minister's department had refused the Recent Requests because of the unequivocal evidence to the effect that the department had not finalised those requests: PJ[36]-[37].

(6)    There was no challenge to the duty or power to remove the requesting party under s 198: PJ[52].

(7)    There was force in two submissions by the Minister which had been to the effect that (a) the requesting party could not obtain relief to prevent his removal or mandamus to compel his requests for the exercise of Powers (particularly the power under s 195A) to be referred to the Minister; and (b), therefore, the possibility of the grant of a visa consequent upon the exercise of any of the Powers by the Minister was not relevant to the balance of convenience: PJ[55]-[56].

(8)    Nevertheless, any possibility of the grant of a visa to the requesting party in the exercise of the Power under s 195A would be lost if he was removed from Australia: PJ[57].

(9)    The evidence of the personal circumstances of the applicant led to the conclusion that the requesting party ‘will face economic hardship and physical and mental health disadvantage if he were returned to India’ and that ‘he is likely to be subjected to harassment, intimidation and potentially violence in connection with debts he owes to money-lenders’: PJ[65].

(10)    The interruption to the course that Parliament intends by s 198 to occur was a factor that counted against the grant of the interlocutory injunction sought by the requesting party: PJ[72].

(11)    The grant of an interlocutory injunction carried the lower risk of injustice: PJ[75].

69    There are a number of significant aspects to this reasoning for present purposes.

70    First, it is clear that his Honour understood that the requesting party made no claim that the duty to remove him that arose from the terms of s 198 was deferred in some way. The primary judge proceeded on the basis that the duty applied.

71    Second, the reasoning by the primary judge excluded the possibility of a challenge based upon the reasoning in Davis as applied to the Recent Requests. That was because, there was no factual basis for a claim that officers of the Department had finalised the Recent Requests.

72    Third, there was no suggestion in the reasoning by the primary judge that the relief sought might be granted on the basis that the Recent Requests had not been finalised. Rather, his Honour approached the application for injunctive relief on the basis that the allegation was that they had been finalised in circumstances where executive authority had been exceeded by those officers involved in finalising them. That is to say, the case as considered by his Honour did not rely upon any claimed significance to the pendency of the Recent Requests for the relief that he sought.

73    There would have been difficulty for a claim that sought to give significance to the mere making of the Recent Requests because the requesting party had already sought relief separately on the basis that it was significant that those requests were ‘pending’ and the application had been refused: MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 877 (Colvin J). On that occasion the requesting party submitted that it would not be ‘reasonably practicable’ for a person to be removed whilst there was a ‘pending’ request for the Minister to exercise one of the Powers. It was held that to describe the Recent Requests as ‘pending’ was to ascribe some characteristic to those requests that required a decision or determination at some future time such that the requests await some subsequent event that is to occur. On the basis that the relevant powers were both personal and non-compellable, it was concluded that “[i]t would alter their character if the making of a request could give rise to some form of requirement for the Minister to indicate whether or not the request was to be considered”: at [30].

74    Fourth, his Honour recognised that the injunctive relief, if granted, would interrupt the course that s 198 required (namely the removal of the applicant from Australia) and would do so in circumstances where there was no claim that the duty to remove did not arise, but considered that, nevertheless, the Davis-type claim was a sufficient basis to grant relief restraining removal as required by s 198. On that basis, his Honour took into account the fact that the relief would interrupt the course that the statute required when evaluating the balance of convenience but, implicitly, found that such interruption may be justified by the Davis-type claim advanced by the requesting party (which his Honour found to be arguable).

75    It was not suggested on the present application for leave to appeal that the primary judge had misunderstood the nature of the case that had been put by the requesting party in support of his application for injunctive relief.

Other authorities

76    Subsequently to the decision in MZAPC [2023] FCA 877, in BJM16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 995, Rares J concluded as follows at [50] (after considering the reasoning of Colvin J):

… it is difficult to characterise the imperative duty of an officer under s 198(6) to remove an unlawful non-citizen who fulfils its criteria as somehow becoming an unlawful exercise of power in the event that the non-citizen chooses to seek an indulgence or permission by making an application under s 48B(1), whatever the good faith of such an application.

77    The reasoning of Rares J in BJM16 was followed by Wigney J in ASU22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1326.

78    Special leave to appeal against the decision in BJM16 was refused on the basis that the proposed appeal would not enjoy sufficient prospects of success to warrant a grant of special leave: BJM16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCASL 204 (delivered on 7 December 2023).

79    In the meantime, a different contention was advanced before Jackson J in HBMH v Commonwealth of Australia [2023] FCA 1527. It did not claim that the making of a request for the Minister to exercise one of the Powers meant that the duty to remove was deferred for so long as the request was pending. Rather, it focussed upon an alleged duty on the part of the Secretary of the Minister's department to bring any request to exercise one of the Powers to the Minister's attention: at [11]. Coupled with a further contention that the duty to bring the request to the Minister's attention was compellable by mandamus, the claim advanced before Jackson J was to the effect that the duty to remove as soon as reasonably practicable did not arise until at least the request had been brought to the Minister's attention. A case of that kind was found by Jackson J to be a sufficient foundation for seeking interlocutory injunctive relief, noting that similar conclusions had been reached by two other judges in recent decisions of this Court, namely AOZ23 v Commonwealth of Australia [2023] FCA 1312 (Rofe J) and AUR23 v Commonwealth of Australia [2023] FCA 1394 (Hespe J).

80    Significantly for present purposes, the reasoning in HBMH was to the effect that it was arguable that the Davis-type claim had consequences for the duty imposed by s 198 to remove the person concerned from Australia. As has been explained, no claim of that kind was advanced before the primary judge in the present case and there would have been real difficulties for raising a claim of that kind.

81    Further, it was not submitted to the primary judge that there had been a failure to bring requests made by the requesting party to the attention of the Minister in circumstances that had consequences for whether there was a statutory duty to remove. Nor had a claim of that kind been raised by the requesting party as a basis for the earlier application that had been dismissed by Colvin J. Rather, as has been explained, the case before the primary judge was confined to Davis-type arguments as to whether there had been a decision by officers of the Department that exceeded executive power.

82    However, as will emerge, on the Minister's application for leave to appeal, there was considerable focus upon the consequences for the relief that might be granted if a Davis-type argument was to succeed. In particular, the Minister contended that the primary judge was in error because even if the requesting party succeeded in demonstrating that his Davis-type claims were arguable, his Honour failed to recognise the consequences of the fact that the requesting party made no claim that the obligation to remove that was imposed by s 198(6) was affected. In short, so it was submitted, the primary judge failed to recognise that the grant of an injunction would not interfere with the course contemplated by s 198(6). Instead, it would restrain the performance of the statutory duty imposed by s 198(6) in circumstances where, so the Minister submitted, there was no claim advanced by the requesting party to the effect that the circumstances concerning the requests might have consequences for the statutory duty to remove.

83    Therefore, the Minister's case on the application for leave to appeal (and on the appeal if leave was given) was that the Davis-type claims could never support a final restraint on the removal of the requesting party from Australia (and therefore could not justify the grant of interlocutory relief in those terms). On the same basis, the Minister contended that it was wrong to view the interruption of the performance of the duty to remove as a matter to be weighed in the balance of convenience. Rather, it should have been viewed as a duty that had to be performed irrespective of the outcome of the adjudication of the Davis-type claims.

84    On the other hand, the requesting party maintained that even though there was no direct claim that the making of a request, of itself, supported the relief sought, there was a claim that the Past Requests had been invalidly rejected by officers of the Minister's department with the consequence that those requests had not been brought before the Minister. On that basis, it was claimed, in effect, that the invalid actions of the departmental officers had caused the requests to be diverted from the Minister. On that basis, it was said that it was appropriate to preserve the position concerning removal in circumstances where invalid actions had interrupted the course of the requests even though, ultimately, the requests may not result in a favourable exercise of power by the Minister. The submission relied upon a contention that the possibility that the power might be favourably exercised had been wrongly taken away by the invalid actions of departmental officers. If the power was to be favourably exercised in the future then that supervening event would change things and would mean that there was no longer a duty to remove. By that pathway of reasoning, which made no claim to the effect that there was no present duty to remove under s 198, the contentions advanced in opposition to the application for leave to appeal raised arguments of the kind that were accepted in HBMH to be arguable (but without relying upon them as a basis to claim that the duty to remove is qualified in some way).

Minister's application for leave to appeal

85    The Minister now seeks leave to appeal. The Minister seeks to raise three grounds to the following effect:

(1)    in determining whether there was a serious question to be tried, the primary judge failed to have regard to the fact that the Recent Requests had not been finalised by the Department;

(2)    in determining the balance of convenience, the primary judge erred in describing the subject matter of the proceedings as the requesting party's interest in remaining in Australia; and

(3)    in determining the balance of convenience or the exercise of discretion, the primary judge failed to have regard to:

(a)    the fact that the Recent Requests had not been finalised by the Department;

(b)    the existence of an undetermined request did not provide a basis not to comply with the duty to remove under s 198(6); and

(c)    the declaratory relief sought by the requesting party would not, even if granted, create any legal right, entitlement or interest to provide a basis not to comply with the duty to remove under s 198(6).

86    As presented orally, the principal contention for the Minister was that leave should be granted and the appeal allowed because any issue with the validity of the rejection of the Past Requests on the basis that it involved officers of the department exceeding their executive authority could not sustain final relief restraining the removal of the requesting party from Australia as required by s 198(6). In short, it was the Minister's case that it was fatal to the applicant's claim that he made no challenge to the existence of the duty to remove. The Minister relied upon authorities which were said to support the unqualified proposition that the Court had no jurisdiction to grant an injunction that restrained the performance of the statutory duty in circumstances where the existence or enforceability of that duty was not challenged. In short, the Court could not restrain the operation of a statute that was accepted to have a valid operation in the circumstances.

87    On the Minister's case, in order to sustain the claim to relief restraining his removal, the requesting party had to advance some claim as to why invalidity of decisions by officers of the Minister's department might mean that there was no duty to remove him. As the requesting party advanced no claim that s 198(6) did not require his removal, and instead only sought to allege that the Past Requests had been invalidly rejected, the Minister contended that the case alleged by the requesting party could not justify interlocutory injunctive relief restraining his removal. An injunction in those terms would restrain the performance of a statutory duty the existence of which was not challenged in any way by the requesting party. The Minister contended that in order to sustain relief of the kind given by the primary judge, the requesting party had to claim that s 198(6) did not apply, a claim that he disavowed (and which the Minister submitted had been rejected by Colvin J by reasoning which had been followed by Rares J, and in respect of which special leave had been refused on the basis that the appeal would not enjoy sufficient prospects of success).

88    In those circumstances, the Minister contended that the injunction granted by the primary judge simply restrained compliance with what the Migration Act commands and did so without calling into question the continuation of that command as applied to the requesting party. For the same reasons, so it was contended, the primary judge had been in error to treat the interruption to the course that Parliament intends by s 198 to occur as no more than a factor that counted against the grant of the injunction when it came to weighing the balance of convenience.

89    In particular, reliance was placed by the Minister upon the reasoning of Mortimer J (as the Chief Justice then was) in CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [80]. Her Honour there reasoned, correctly with respect, that interlocutory relief must have a substantive connection to the controversy between the parties. The concern in CPK20 was with whether the order was required to preserve the subject matter of the proceedings.

Leave to appeal and the substantive appeal

90    The Minister's application for leave and the substantive appeal if leave was given were listed to be heard together. The requesting party opposed leave and made submissions in support of the reasoning of the primary judge if leave were given.

The principal contentions of the requesting party

91    As to leave, the following were the principal contentions advanced by the requesting party:

(1)    there were conflicting authorities in the area;

(2)    there was no substantial injustice to the Minister if leave was refused;

(3)    the High Court in Davis granted a declaration, but did not determine whether it might be appropriate to grant other relief such as mandamus to require some form of action in relation to a request;

(4)    if injunctive relief was not granted then the requesting party could not pursue a request for exercise of the Power that depended upon him being in detention and would have considerable practical difficulty in being able to pursue his claim from India; and

(5)    the evidence in support of the application for an injunction demonstrated that the potential consequences for the requesting party were grave.

92    As to the substantive merits, emphasis was placed upon the jurisdiction of the court to preserve the subject matter of proceedings, particularly to preserve the life of a party while a dispute is pending: see Tait v The Queen (1962) 108 CLR 620.

93    As to whether there was a cause of action that would sustain the injunctive relief that had been granted by the primary judge to restrain the removal of the requesting party pending a final hearing, there appeared to be two substantive contentions as to how the Davis-type points advanced by the requesting party supported that relief, namely:

(1)    there was no dispute that the Davis-type points were arguable as to the Past Requests and if they were upheld then relief by way of mandamus might be granted as to the manner in which some form of action might be taken as to the Past Requests requiring them to be put before (or their existence notified to) the Minister; and

(2)    determination that the Past Requests had been invalidly rejected would have the consequence that the requesting party would not be viewed as making repeat requests when it came to the Recent Requests, a matter which might have significance for the way in which those requests were treated according to guidelines properly made by the Minister in accordance with Davis or by the Minister if and when considering those requests.

94    Inherent in both these submissions was an implied contention to the effect that there was a compellable obligation for departmental officers to ensure that the Past Requests were put before the Minister or that the fact of their existence was somehow notified to the Minister thereby opening up the possibility that the requests might be acceded to by the Minister (with the consequence that the duty to remove would cease).

95    Possibly, the personal nature of the Powers may mean that there is a responsibility on the part of an officer of the Minister's department to ensure that a request, when received, is put before the Minister (or, at least, the fact of the request is made known to the Minister personally). Further, the nature of that responsibility and the significance of its performance for the person making the request may mean that the responsibility is compellable and the person making the request has standing to seek public law relief on that basis. If, by excess of executive authority, those responsibilities have not been carried out then the consequence may be that such conduct is both invalid and has interfered with the course of events by which there was the possibility of the Powers entrusted personally to the Minister being exercised in the public interest (being powers which, if favourably exercised, would bring the person outside of the operation of s 198(6)). There is also the possibility that subsequent requests may be brought before the Minister on the basis that they are repeat requests because past requests have been validly rejected (when that is not the case).

96    It should be observed that the terms of a procedural decision by the Minister as to such matters may affect the circumstances in which there is any such responsibility. However, there was no suggestion that there was any such valid procedural decision by the Minister that affected the way in which the alleged Past Requests had been dealt with by departmental officers.

97    However, even so, the question remains whether a claim of that kind is a sufficient basis to support the grant of an interlocutory injunction. In terms of the contentions advanced by the Minister, was the primary judge in error in granting an injunction to restrain the performance of the statute when there was no challenge to the lawful operation of the statute (which requires the removal of the requesting party from Australia as soon as reasonably practicable)?

The authorities relied upon by the Minister

98    The Minister accepted that the primary judge had been correct to approach the application by the requesting party on the basis that the Court had power to grant interlocutory relief to ensure the effective exercise of the jurisdiction invoked by an applicant for relief or, put another way, to protect the integrity of its processes once put in motion: PJ[16]-[17].

99    Further, in Australia, ‘[t]he principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration’: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153. As was there noted by Mason ACJ, the High Court will protect an alleged constitutional right ‘by restraining the enforcement of a statute where the plaintiff would suffer irreparable injury without any countervailing detriment to the public interest’: at 154. However, in arriving at a balance of convenience in a case where it is claimed that a particular statute is beyond power ‘it is the duty of the Court to respect, indeed, to defer to, the enactment of the legislature until that enactment is adjudged ultra vires’. See also Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [66] (Gummow and Hayne JJ).

100    So, where, as in the present case, the relief sought is public law relief, the Court has power ‘in an appropriate case, to make an interim order which will, in practical effect, preserve the subject matter of a dispute pending its final resolution, or otherwise maintain the status quo so as to enable a court to do justice between the parties’: Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu [2000] HCA 23 at [7] (Gleeson CJ).

101    It may be accepted that, in determining whether to grant an interlocutory injunction, the Court does not act on the basis of an assessment of what may be thought to be fair or just of a kind that is unanchored from the existence of some claim or right recognised by the Court: Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380. There must be regard to the nature of the claim and the ultimate relief that might be granted if the claim was to be upheld when determining whether it is appropriate to grant an interlocutory injunction and, if so, in what terms.

102    However, the Minister claimed that there was neither any right to prevent removal (because it was accepted that there was a duty to remove) nor any claim to public law relief that might ‘impugn the duty to remove [the requesting party]’. On that basis it was said that the interlocutory injunction directed the Commonwealth not to comply with the law, something which the Court could not do in circumstances where there was no challenge to the validity of the law itself. It was said that authorities in which it had been said that a court has no power to grant dispensation from obedience to an Act of Parliament supported the broad terms in which the Minister advanced that submission.

103    As to the authorities, reliance was placed on what was said by Earl Loreburn LC in Attorney-General v Birmingham, Tame & Rea District Drainage Board [1912] AC 788 at 795, said to have been quoted in each of P v P (1994) 181 CLR 583 at 620 (Brennan J) and Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527 at 531-532 (Mason P; Sheller and Beazley JJA agreeing).

104    However, the relevant passage from the judgment of Brennan J in P v P was concerned with the circumstances in which the general jurisdiction by which orders may be made in respect of wards of the court (referred to by Brennan J as a transmogrification of parens patriae power into a prerogative jurisdiction of the Court) may be exercised contrary to statute. In that context, the reasoning of Earl Loreburn LC was cited to support the proposition that the Court's general jurisdiction might be constrained by the terms of legislative provisions. It was determined that the orders that may be made in the exercise of that particular jurisdiction did not extend to a power to grant dispensation from obedience to an Act of Parliament.

105    The claim in the present case depended upon the assertion of a public law right that was said to justify, if the claim was upheld, relief that required the Past Requests to be put before the Minister with the possibility that they may be acceded to by the Minister.

106    The decision in Meggitt Overseas Ltd v Grdovic concerned the circumstances in which the Court may exercise its procedural jurisdiction to adjourn proceedings on the basis that there was the prospect that Parliament may enact a new law that would bring an end to the utility of the claim. Again, a claim of that kind does not depend upon the exercise of the Court's jurisdiction to grant an injunction to stop action being taken on the basis that it will preserve the status quo or to protect the integrity of the processes by which it may determine whether a party is entitled to the relief claimed.

107    Nor did the Birmingham, Tame & Rea District Drainage Board case itself deal with a question of the kind raised in this application/appeal. There, the Court of Appeal had dissolved a perpetual injunction restraining the respondents from discharging sewage into a river in breach of statute. The Court of Appeal had imposed a condition that the respondents undertook to use their best endeavours to prevent such a breach in future. The House of Lords held that this impermissibly changed a strict statutory obligation to one that only required best endeavours. Earl Loreburn LC's dictum (at 795) that a court ‘has no power to grant a dispensation from obedience to an Act of Parliament’ was said in that context. It sheds little light on the question of when a court, exercising its undoubted power to ensure the effective exercise of its jurisdiction, may grant an injunction pending that final exercise which restrains the performance of a statutory duty.

108    Reliance was also placed upon what was said in Hartnett t/as Hartnett Lawyers v Bell as Executor of Estate of late Deakin-Bell [2023] NSWCA 244 at [123(8)] (Bell CJ, Adamson JA and Griffiths AJA agreeing). It was a case concerned with the nature and extent of a court's inherent jurisdiction to make orders as to matters other than by way of adjudication of a controversy or cause. The proposition there expressed was as follows:

The inherent jurisdiction cannot authorise the making of orders excusing compliance with statutory obligations or preventing the exercise of authority deriving from statute.

109    The cases cited for that proposition included Commonwealth Trading Bank of Australia v Inglis (1974) 131 CLR 311 at 318-319 and Doyle v Commonwealth (1985) 156 CLR 510 at 518.

110    Inglis was concerned with the extent of the Court's inherent power to make orders on the basis that the conduct of a party might be said to be vexatious or an abuse of the Court's process where those orders, if made, would require a party to seek leave before instituting fresh proceedings or bringing applications in existing proceedings.

111    Doyle was concerned with the power to commit for contempt. An argument was put to the effect that the order to commit (made ex parte) in circumstances where a condition that was required by the Rules of Court before making such an order had not been satisfied, the order was sought to be supported by an inherent power or power to dispense with service and make an ex parte order for committal. It was within that context, that it was said that: ‘a judge cannot dispense with the requirements of the Rules of Court unless the Rules give him power to do so, and when a power is expressly conferred on the court subject to a condition, a judge cannot, by relying on inherent powers, escape from the necessity of ensuring that the condition has been fulfilled’: at 518.

112    Finally, in oral submissions senior counsel for the Minister also relied on Reid v Howard (No 2) (1995) 184 CLR 1. In that case, Toohey, Gaudron, McHugh and Gummow JJ held that the New South Wales Supreme Court had no power to detract from the appellant's privilege against self-incrimination by requiring him to make disclosure of certain matters to the respondents. In the course of so holding, their Honours said (at 16) that neither the Supreme Court's inherent jurisdiction nor the general conferral by s 23 of the Supreme Court Act 1970 (NSW) of ‘all jurisdiction which may be necessary for the administration of justice in New South Wales’ could ‘authorise the making of orders excusing compliance with obligations or preventing the exercise of authority deriving from statute’.

113    An analogy could be drawn between that and the general conferral of power in s 23 of the Federal Court of Australia Act 1976 (Cth) to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. It is well established that, wide though that power is, it is subject to jurisdictional and other limits: Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 622. But applied to this case, the analogy would be an imperfect one. The orders under appeal were not an exercise of the power in s 23, or any inherent power, to abrogate permanently a fundamental common law right, as was the situation in Reid v Howard. They were made so that the Court could do justice in a matter where one possible consequence of the final relief sought is that the duty to remove the requesting party would cease.

114    Also, the orders preserved the utility of a claim that officers of the Department had acted outside the bounds of executive authority derived from the Migration Act. It is not obvious that a claim of that kind should be subordinated to performance of an obligation imposed by a different provision of the Migration Act.

115    In short, none of these authorities are concerned with the circumstances in which a court may grant an interlocutory injunction to preserve the status quo or the subject matter of the proceedings or the integrity of its processes when put in motion by an order which would restrain performance of an undisputed statutory duty.

Other authorities and the nature and extent of the Court's jurisdiction

116    The real question is whether Court's jurisdiction to preserve the subject matter and the integrity of its own processes so that it may effectively exercise its jurisdiction to adjudicate a controversy and, by its judgment, grant orders that have efficacy is absolutely curtailed by a legislated command the validity of which is not challenged and which it is accepted must be performed in the circumstances then applying.

117    The point is exposed by the reasoning of Mortimer J (as the Chief Justice then was) in CPK20. In that case, the applicant sought an urgent interlocutory injunction restraining his removal from Australia. The relief was sought within proceedings in which the applicant sought review of the decision by an officer of the Department not to refer the applicant's request for the exercise of one of the Powers in his favour. The decision preceded Davis and no issue as to limits upon executive authority was raised. Rather, it was claimed that the decision not to refer the request to the Minister was a legally unreasonable decision because, so it was claimed, the applicant's case was so obviously one which should have been referred to the Minister under then applicable Guidelines that had been published by the Minister that the decision was infected with jurisdictional error: at [11].

118    Therefore, the claim to an interlocutory injunction was supported by a substantive claim challenging the decision not to refer the request to the Minister. It was said to be a sufficient foundation to restrain the applicant's removal pending the final adjudication of that substantive claim. The relief sought was confined to an order compelling reconsideration of the applicant's request. The applicant did not seek relief compelling his request to be referred to the Minister: at [12].

119    After noting that the Power that the applicant sought to have exercised was one which the Minister had no duty to consider whether to exercise, her Honour said: ‘That feature … affects the relief which can be granted by this Court on any judicial review, and affects the nature of the judicial review which can be undertaken’: at [5].

120    In those circumstances, like the present case, there was no claim that sought to question whether there was a duty to remove the applicant from Australia. Nevertheless, her Honour addressed the claim on the basis that a decision by an officer of the Department not to refer a request to the Minister for consideration could be the subject of an application for judicial review: at [43].

121    In that context, her Honour reasoned in the following way, at [80]:

Any grant of interlocutory relief by the Court will interrupt and override the course envisaged, and required, by the legislative scheme in the Migration Act. There must be a reasonable justification for the Court's orders to interrupt the course which Parliament intends to occur, once a person has exhausted her or his avenues to secure a visa, including review and appeal. The purpose of the grant of interlocutory relief is to ensure that the Court can, at trial, do justice between the parties in the matter which is before it. As a Full Court of this Court explained, the nature and extent of interlocutory orders which might be made under s 23 of the Federal Court of Australia Act 1976 (Cth) may depend on what the controversy is between the parties: see Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] FCA 41; 34 FCR 169. This is not an application of that kind, because the interlocutory relief sought has no substantive connection with the controversy between the parties in the proceeding, nor with the final relief sought. This is, rather, a Tait kind of application: see Tait v The Queen [1962] HCA 57; 108 CLR 620. It is not however the kind of Tait application which, for a period, became rather frequent in relation to the transfer of individuals from Nauru: see FRM17 v Minister for Home Affairs [2019] FCAFC 148. In those cases, interlocutory relief was found to be appropriate to preserve, or avoid further risks to, the health (and sometimes the lives) of the individuals who sought to bring proceedings where the cause of action was an allegation of negligence in relation to their physical and mental health on Nauru. The very state said to have been neglected by the respondents was said to be at further risk without interlocutory relief. That is also not this case. In my opinion the preservation of the subject matter of this proceeding does not require interlocutory relief to be granted.

122    In the present context, what is striking about the above reasoning is that there is no suggestion that the interlocutory relief sought might be required to be refused because of the course ‘envisaged and required’ by the Migration Act, namely the removal of the applicant as soon as practicable. Rather, the focus of the reasoning was upon the nature of the substantive claim, particularly whether there was a sufficient foundation in the nature of the substantive claim for the grant of the interlocutory relief sought - whether that foundation was on the basis that there was a substantive connection with the controversy or with the final relief or the subject matter of the proceedings.

123    If the Court is persuaded that the restraint of the performance of a statutory duty has a reasonable justification in the substantive claim then it may grant an interlocutory injunction restraining the performance of that duty provided it acts according to established principle, including the duty to respect the performance of the legislated public duty when it comes to balancing the competing considerations.

124    In Mastipour v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] FCA 1571; (2004) 140 FCR 137, Mansfield J considered a similar contention to that advanced in the present case. The substantive claims in the case were alleged breaches of duties of care arising from the circumstances in which the applicant had been detained. There was no extant proceeding in which the applicant sought a protection visa, but he claimed that if he was removed then he could not effectively prosecute his claims for breach of duty: at [6]. After a review of the authorities as to the Court's jurisdiction to grant interlocutory relief in such circumstances (at [17]-[31]), his Honour concluded (at [32]) that the powers of the Court extended at an interlocutory stage to the making of an order restraining the removal of the applicant notwithstanding the duty imposed by s 198(6). His Honour did so on the basis of a jurisdiction to protect the integrity of the Court's process in adjudicating serious allegations about the applicant's treatment in detention: at [35].

125    However, it must be recognised that his Honour's conclusion as to whether relief should be granted in that particular case appears to have been informed, to some extent, by a view as to the relative nature of the duty to remove: at [33].

126    As to the grant of injunctive relief to restrain removal in performance of the duty imposed by s 198(6), the mere fact that the person seeking interlocutory relief restraining removal is a litigant in the Australian courts would not be enough: P1/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1029 at [51] (French J); and Ex parte De Braic (1971) 124 CLR 162 at 167 (Windeyer J). That is not to say that the Parliament, by a legislated duty, may deprive the Court of its inherent jurisdiction to ensure that its processes are not frustrated by granting interlocutory relief to preserve the subject matter in dispute and to enable it to perform its function as a court. A court which lacked such power would not be a court. The power is inherent in its character: see the explanation by Lindgren J in Williams v Minister for the Environment and Heritage [2003] FCA 627 at [16]-[18].

127    Rather, in the face of such a statutory duty, the Court must recognise the seriousness of restraining the enforcement of a valid law in considering the balance of convenience (including by requiring a strong case in order to justify the balance supporting the grant of relief).

128    Indeed, the circumstances may need to have an exceptional quality: NAEX v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1633 at [28] (Lindgren J).

129    Nevertheless, the jurisdiction exists. Significantly, Stephen J in Simsek v MacPhee (Minister for Immigration and Ethnic Affairs) (1982) 148 CLR 636 at 640-641 recognised the availability of the jurisdiction in a case concerned with the power of deportation. His Honour said:

There is no doubt that our courts have wide inherent powers to ensure that justice is not denied to those who litigate before them: Dixon C.J. observed in argument in Tait v. The Queen that he had never had any doubt 'that the incidental power of the Court can preserve any subject matter, human or not, pending a decision' … However, such inherent power is not to be exercised as of course - see especially per Ormrod L.J. in Anton Piller: The jurisdiction provides no general substitute where application for injunctive relief would be the normal course nor should it be used to circumvent the safeguard which the requirement that a prima facie case be made out provides in ensuring that the potent weapon of interlocutory injunctive relief is not misused.

If the power of deportation which Parliament has given to the Minister is to be interfered with in a case such as the present, where the applicant neither denies that he was a prohibited immigrant nor contests the validity of the making of the deportation order itself, the applicant must in my view first make out a prima facie case for injunctive relief in accordance with the principles referred to in Beecham Group Ltd. v. Bristol Laboratories Pty. Ltd.

130    Therefore, an injunction may be granted by the Court to restrain the performance of a clear statutory duty (such as the duty to remove under s 198(6)), but it will only do so to preserve the subject matter of the proceedings and the integrity of its own procedures. In considering the balance of convenience it will have due regard to the statutory duty and will require a strong case or serious consequences or both in order to justify relief. This is to afford a deference of the same kind that causes the court to recognise that special considerations arise where injunctive relief is sought restrain the enforcement of a law. However, that deference does not extend to exclude from the established jurisdiction of the courts to protect the integrity of its processes and the subject matter of proceedings before those courts any authority to restrain the performance of an undisputed legislated duty.

Conclusion as to Minister's contention

131    For reasons that have been given, the point advanced by the Minister as being a matter of principle to the effect that the Court has no jurisdiction to grant an interlocutory injunction restraining the performance of a statutory duty (where its existence is not challenged) has not been demonstrated.

132    Like CPK20, the substantive cause of action advanced by the requesting party in the present case does not give rise to a Tait-kind of application in which the claim itself concerns the lawfulness of taking the life of the applicant (or some other serious thing being done or to be done personally to the party seeking relief). The requesting party seeks no relief on the basis that there is some right or duty not to remove him from Australia. However, significantly, unlike the applicant in CPK20, the requesting party seeks mandamus requiring his request to be put before the Minister. The claim made by him is that there was no executive authority for the requests (particularly the Past Requests) not to be put before the Minister.

133    The state of the authorities is such that even though the requesting party accepted that there is a present duty to remove him from Australia, interlocutory relief may be granted to restrain the removal of the requesting party from Australia pending the determination of claims to relief which, if granted, would require action to be taken which may give rise to the possibility of the Minister acceding to the request. This is not because of a claim that the making of a request of itself qualifies the duty imposed by s 198(6) to remove (a claim rejected by each of Colvin, Rares and Wigney JJ) but because of a claim that there has been a Davis-type excess of authority in rejecting a request which, if upheld, gives rise to the future possibility that relief may be granted that requires steps to be taken to reinvigorate that request and, consequently, the possibility of the request being acceded to thereby, at that time, bringing the party making the request outside of the operation of s 198(6).

134    In short, if the requesting party is successful in obtaining the relief that he seeks then the Court's ability to grant relief that he seeks (which would reinstate him to the position that he should have been if his Past Requests had not been dealt with in a manner that exceeded executive authority) will be frustrated if the statutory duty is performed in the interim. For reasons that have been given, the claim to that relief is arguable. Admittedly, that relief would only put the requesting party in the position where his request was before the Minister at a time when he had not been removed from Australia. However, it was not the case that there was no claim of a kind that might support the interlocutory injunction that was granted.

135    If follows that there is a foundation for the grant of interlocutory injunctive relief in the present case. In the language of Mortimer J (as the Chief Justice then was) in CPK20, the interlocutory relief granted by the primary judge had a substantive connection to the controversy between the parties.

136    Beyond the point raised by the Minister as to whether there was error by the primary judge in the approach to the significance of the concession by the requesting party that there was a present duty to remove him, there was no challenge to the rest of the reasoning to the effect that the balance of convenience favoured the grant of relief. In substance, any such challenge would be to cavil with the evaluative decision by the primary judge in applying established principles. It would not provide a basis upon which leave to appeal might be given.

137    To the extent that the application for leave sought to impugn the balancing exercise undertaken by the primary judge (or some aspect of discretion as to whether to grant the interlocutory injunction), the complaints reduced to an alleged failure to bring to account matters which were said to demonstrate the alleged absence of any substantive foundation for the relief.

138    For completeness, we note that the Minister raised no argument that s 474(1) of the Migration Act prohibited the injunction granted here. That section provides, that a “privative clause decision”:

(a)    is final and conclusive; and

(b)    must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)    is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

139    A decision to remove a person from Australia under s 198(6) of the Migration Act is a privative clause decision: see s 474(2). That being so, it might be thought that paragraph (c) of s 474(1), in particular, prohibits the grant of an injunction to restrain that removal.

140    It is well established, however, that as a privative clause provision, s 474(1) must be construed strictly: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [72]. Taking that approach, we do not consider that s 474(1) prohibits the injunction here. Read as a whole, the section seeks to render privative clause decisions immune from challenge. But the entire premise of this appeal is that the decision made under s 198(6) is not under challenge. The injunction is not granted in aid of any attempt to impugn that decision, it is made for the different purposes described in these reasons. While its effect may be to prevent the performance of the duty under s 198(6), it does not offend against the parliamentary intention that finds expression in s 474(1), construed strictly as it must be.

141    We reach that view noting that, if it is incorrect, there may remain a question whether s 474(1) would transgress constitutional limits by seeking to remove from this Court a power that is essential to its character as a Chapter III court.

The principles to be applied on an application for leave to appeal an interlocutory order

142    In the usual case, an applicant for leave to appeal must demonstrate both that the relevant decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice would result if leave were refused (assuming the decision to be wrong): Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398.

143    The Minister's case as to doubt concerning the correctness of the decision by the primary judge to grant the interlocutory injunction was that the requesting party had not advanced any contention which, if accepted, would mean that the duty imposed by s 198(6) did not apply to the requesting party. If accepted, it was a firm barrier to the grant of injunctive relief. Given the matters addressed in these reasons, it could not be said that there was insufficient doubt about the point to warrant leave to appeal being given.

144    As to substantial injustice, the Minister's case was to the effect that the interlocutory injunction restrained the performance of a statutory duty without any claim being advanced that would call into question the existence of that duty. If that was correct then, so the Minister submitted, there would be substantial injustice if leave were not given because it is a position that would not be vindicated by a determination at final hearing. That is to say, the requesting party would have obtained his injunction when, on the Minister's case, there was no basis upon which an injunction could have been granted. The real significance of the point from the Minister's perspective was that it was a fundamental reason why the injunctive relief should have been refused.

145    In those circumstances, we are satisfied that leave should be given.

Outcome and costs

146    However, for reasons that have been given, the appeal must be dismissed.

147    The appeal concerned a discrete point as to the extent of the Court’s jurisdiction to grant injunctive relief. The merit of that point having been determined in the appeal, it is appropriate for the Minister as the unsuccessful party to bear the costs of the appeal. There should be an order that the Minister pay the costs of the appeal to be taxed, if not agreed.

Associate:

Dated:    18 March 2024