FEDERAL COURT OF AUSTRALIA

XAD by her Litigation Guardian XAE v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1550

SUMMARY

In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of the application in these proceedings and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at www.fedcourt.gov.au together with this summary.

The applicant is a two year old girl born to Sri Lankan parents. Despite having been born in Australia, she is designated to be an “unauthorised maritime arrival” under the Migration Act 1958 (Cth). On 29 August 2019, the applicant as well as her parents and sister, were in the process of being removed from Australia by an officer of the Second Respondent (“the Commonwealth”) purportedly pursuant to the removal power in s 198 of the Migration Act. The applicant’s removal was halted by an order made by a judge of the Federal Circuit Court. That restraint was continued by orders made by this Court in order that the interlocutory relief claimed by the applicant could be properly considered.

In the absence of a further restraint upon the respondents, the applicant is threatened with removal from Australia. Broadly stated, her case is that there is currently no power to remove her from Australia under s 198 of the Migration Act. Through her legal representatives, the applicant says that s 198 of the Migration Act is not available as a source of power to remove her from Australia for one of two alternative reasons. First, because she has made a valid application for a visa and until that application is finally determined, there is no power to remove her from Australia. Second, that a statutory process in which an assessment is being made as to whether Australia’s international obligations would be infringed by her removal to Sri Lanka was commenced but has not been lawfully completed. The applicant contends that whilst that process remains afoot, the power to remove her under s 198 is not available.

In that context, the applicant seeks an interlocutory injunction restraining her removal from Australia until her proceedings in this Court have been finally heard and determined at trial. The reasons published with this Summary address that claim for interlocutory or interim relief.

Such a claim is assessed by reference to well-established principles in which two questions are considered. First whether the applicant has demonstrated a prima facie case or, in other words, a serious question to be tried. That involves the applicant establishing a sufficient likelihood of success at the final trial of her proceedings to justify the grant of interlocutory relief. The second question is whether the inconvenience or injury the applicant is likely to suffer if the injunction is refused outweighs or is outweighed by the injury which the respondents would suffer if the injunction were granted; this is called the balance of convenience.

The respondents have conceded, and I have found, that the balance of convenience is in the applicant’s favour. The applicant has established a prima facie case that the power under s 198 of the Migration Act is not available to the respondents to remove her from Australia. That prima facie case has been established on the basis of each of the alternative reasons relied upon by the applicant and described above. Other contentions made by the applicant to demonstrate a prima facie case have failed.

Given that the balance of convenience is in the applicant’s favour and that she has established a prima facie case, an interlocutory injunction restraining the respondents from removing the applicant from Australia until the hearing and determination of her proceeding at trial has been justified.

The basis for that justification is detailed in the reasons for judgment published with this Summary.

BROMBERG J

19 SEPTEMBER 2019

MELBOURNE