Federal Court of Australia

HBMH v Commonwealth of Australia [2023] FCA 1527

ORDERS

THE COURT ORDERS THAT:

1.    For the purposes of today's hearing, and pursuant to s 47B of the Federal Court of Australia Act 1976 (Cth), counsel for the parties are permitted to deliver oral submissions by way of video link.

2.    Until 5 pm AWST on 22 December 2023, the respondents are restrained by themselves or by their department, officers, agents, delegates or servants from removing the prospective applicant from Australia.

3.    Costs reserved.

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

REASONS FOR JUDGMENT

JACKSON J:

1    On 4 December 2023, I granted an injunction restraining the prospective respondents, the Commonwealth of Australia and the Secretary of the Department of Home Affairs, from removing the prospective applicant from Australia until 22 December 2023. These are my reasons.

2    The prospective applicant filed an urgent application before the start of a proceeding, being a procedure for which r 7.01 of the Federal Court Rules 2011 (Cth) provides. Broadly speaking, that rule permits a person who intends to start a proceeding to apply for an injunction (among other orders) before commencement of a substantive proceeding. While that rule contemplates the making of such an application without notice, the prospective respondents were served and appeared by counsel at yesterday's hearing. As required by r 7.01(3), the prospective applicant has undertaken to the Court to start a proceeding in relation to the subject matter of the application within 14 days after the urgent application has been determined. (It will be convenient for the rest of these reasons to refer to the parties simply as the applicant and the respondents.)

Background

3    The applicant is a 72-year-old man. He is a citizen of the United Kingdom. He came to Australia when he was 9 years old, and save for one relatively brief trip back to the United Kingdom, has lived here ever since. He never became an Australian citizen.

4    The applicant's visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) because he was sentenced to a term of imprisonment of more than 12 months. That was as a result of convictions for child sexual offences which took place in 2018 and 2019. In August 2022 the Administrative Appeals Tribunal affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke that mandatory cancellation.

5    On 8 September 2023, solicitors acting for the applicant wrote to the Minister seeking the favourable exercise of the Minister's power under s 195A of the Migration Act to grant a visa to the applicant if the Minister thinks it is in the public interest to do so. This is one of the powers, personal to the Minister, non-delegable and non-compellable, that was the subject of the decision in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180. That decision confirmed that when a request for the exercise of such a power is made (and indeed even where such a request has not been made) there are two decisions that the Minister may make, but need not make: a procedural decision as to whether to consider exercising the power and then, if the Minister does decide to consider it, a substantive decision as to whether to exercise the power favourably to the person who has made the request: at [53].

6    It is common ground that the request of 8 September 2023 has not been referred to the Minister, so that the Minister is not yet in a position to make either a procedural decision or a substantive decision in respect of it.

7    On Tuesday, 28 November 2023, the Australian Border Force notified the applicant that arrangements had been made for his removal from Australia and that it was anticipated that he would be removed on Tuesday, 5 December 2023. The applicant filed his urgent application before the start of a proceeding on Friday, 1 December 2023. The application was heard on Monday, 4 December 2023 and an order restraining the applicant's removal from Australia until 22 December 2023 was made.

The basis of the proposed application

8    It is convenient to start by setting out the two statutory provisions on which the application turned, in so far as they are relevant:

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

Persons to whom section applies

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

Minister may grant visa

(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).

…

Minister not under duty to consider whether to exercise power

(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.

Minister to exercise power personally

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

…

198    Removal from Australia of unlawful non-citizens

…

(2B)    An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a)    a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and

(b)    since the delegate's decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and

(c)    in a case where the non-citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate's decision - either:

(i)    the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or

(ii)    the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate's decision.

Note: The only visa that the non-citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).

…

9    It is common ground that the applicant is both a person who is in detention under s 189, and an unlawful non-citizen to whom all the conditions in s 198(2B)(a) to (c) apply.

10    The application foreshadowed to be made will have two bases. The primary basis is that the Secretary of the Department of Home Affairs and other officers of the Department (all of whom, for convenience, I will refer to compendiously as 'the Secretary') have a compellable, non-statutory duty to refer the request under s 195A to the Minister so that the Minister is in a position to make, at least, the procedural decision. This duty is said to be compellable by the issue of mandamus to the Secretary. An injunction restraining the removal of the applicant from Australia is said to be necessary to preserve the subject matter of that application.

11    The path of reasoning which, the applicant submits, leads to that conclusion may be summarised as follows:

(1)    If a request for the exercise of the power under s 195A is made (or a request under similar personal, non-delegable powers, such as s 48B), there is a duty on the Secretary to bring it to the Minister's attention. That is because, in the absence of any procedural decision made by the Minister in relation to a class of cases, giving the Secretary a lawful basis to determine not to refer the request to the Minister (as to which see Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10 (Davis HCA) at [16]-[19]), if the Secretary intercepts the request, that amounts to a purported exercise of the Minister's discretion not to consider the request. That would be impermissible when the making of the procedural decision adversely to the applicant is the province of the Minister alone, acting personally. These propositions rely on Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213; (2022) 288 FCR 23 (Davis FCAFC) at [259]-[261] (Charlesworth J, Griffiths J agreeing, Besanko and Mortimer JJ disagreeing but on a qualified basis, Kenny J not deciding - the appeal having been allowed on different grounds in Davis HCA).

(2)    There was no relevant procedural decision made by the Minister here permitting the Secretary not to bring the request to the attention of the Minister. (In fact, it emerged that the Secretary had made a request for intervention under s 195A and s 197AB of their own motion before the applicant made his own request, but while the applicant pointed to this as apparent inconsistency in the Secretary's conduct, it did not appear to form part of his claim for mandamus.)

(3)    That being so, the duty of the Secretary to bring the applicant's s 195A request to the Minister's attention is enforceable by mandamus: see Davis FCAFC at [262].

(4)    In those circumstances, no duty to remove the applicant arises under s 198(2B). The duty to remove an unlawful non-citizen under s 198(2B) must be read as permitting the executive to genuinely consider alternative possibilities permitting the person to remain in Australia: see WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463 at [107] (Kenny and Mortimer JJ).

(5)    The obligation in s 198(2B) to remove an unlawful non-citizen as soon as reasonably practicable should be read as accommodating the taking of steps for the purpose of informing the Minister of matters relevant to the possible exercise of power under s 195A: see Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [35].

(6)    It follows from these aspects of s 198(2B) that the duty to remove the applicant does not arise at least until the request under s 195A has been brought to the Minister's attention.

(7)    An injunction may issue in order to preserve the subject matter of the proposed proceeding, that is, the applicant's asserted right to obtain mandamus. If the injunction is not granted, and the applicant is removed from Australia, that right will become nugatory.

(8)    That injunction will not purport to compel the Secretary to disobey a duty to remove the applicant from Australia because, for the reasons given, on the proper construction of the Migration Act that duty does not arise until, at least, the request under s 195A has been brought to the Minister's attention.

12    The other basis of the proposed application is that the applicant suffers from medical and psychological ailments that provide an independent reason as to why it is not reasonably practicable to remove him from Australia. However since, as will be explained, I determined here that the primary basis of the application was reasonably arguable, it is not necessary to deal with that further basis or the evidence in support of it in these reasons.

Jurisdiction

13    Were it not for s 476A of the Migration Act, it would have been plain that this Court has jurisdiction to determine the proposed application. It will be an application for a writ of mandamus, and an injunction, against officers of the Commonwealth so that jurisdiction is conferred, at least, by s 39B(1) of the Judiciary Act 1903 (Cth).

14    Section 476A(1), however, provides that despite any other law, including s 39B of the Judiciary Act, the Federal Court has original jurisdiction 'in relation to a migration decision' if and only if the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) has transferred a proceeding pending in that court to the Federal Court, or the decision is a decision of a kind described in s 476A(1)(b), (c) or (d). The applicant accepted that none of those conditions for the Court to have jurisdiction are satisfied in this case.

15    The question, then, was whether, by proposing to invoke the Court's jurisdiction on the basis outlined above, the prospective applicant sought to invoke the Court's original jurisdiction 'in relation to a migration decision'.

16    A 'migration decision' means (s 5):

(a)    a privative clause decision; or

(b)    a purported privative clause decision; or

(c)    a non-privative clause decision; or

(d)    an AAT Act migration decision.

17    Under s 474(3) the word 'decision' is defined widely to include, among other things:

…

(b)    granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

…

(g)    doing or refusing to do any other act or thing;

(h)    conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

…

(j)    a failure or refusal to make a decision.

18    A 'privative clause decision' relevantly means 'a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act' (s 474(2)). A 'purported privative clause decision' relevantly means (s 5E):

… a decision purportedly made, proposed to be made, or required to be made, under this Act … (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:

(a)    a failure to exercise jurisdiction; or

(b)    an excess of jurisdiction;

in the making of the decision.

19    A 'non-privative clause decision' is a decision of a kind listed in s 474(4) or regulations made as contemplated in s 474(5), and need not be considered further. The term 'AAT Act migration decision' is also not presently relevant.

20    I was initially concerned that each of any decision made under s 195A of the Migration Act (including a procedural decision not to consider the exercise of the power), or the act of removing the applicant on the ground that his removal is required by s 198(2B), may have been a decision of an administrative character proposed to be made under the Migration Act, and so a privative clause decision or, if affected by jurisdictional error, a purported privative clause decision: see Davis HCA at [15]. Any application in the nature of judicial review that directly challenges the lawfulness of either decision may, therefore, be an application purporting to invoke the jurisdiction of the Court in relation to a migration decision, a jurisdiction which, by reason of the implied exclusion to be found in s 476A, the Court does not have.

21    But in view of the primary basis on which the application was put as outlined in the previous section, the applicant submitted that the decision he seeks to challenge is, in fact, not a decision under the Migration Act, and so not made 'under this Act' for the purposes of the definition of 'privative clause decision' in s 474(2). There were two apparent grounds for that submission.

22    First, the applicant submitted that mandamus to enforce the performance of a duty to bring a matter to the Minister's attention does not involve a decision, as that word is understood in ordinary English. That is because what the applicant sought was, primarily, mandamus to compel the exercise of what he submitted was a 'non-statutory' power on the part of the executive to bring the request under s 195A to the attention of the Minister. I had doubts about the correctness of that submission in view of the expanded definition of 'decision' in s 474(3).

23    However, secondly, counsel for the applicant drew my attention to part of the reasons of Charlesworth J in Davis FCAFC in which her Honour considered the provisions of the Migration Act that exclude the Court's jurisdiction which I have just outlined, and referred without apparent disapproval to the parties' joint position as follows (at [234]):

At first instance in both cases it was common ground that a Departmental officer's decision not to refer a relevant request to the Minister was not a migration decision and so was not affected by the ouster of jurisdiction in s 476A of the Act. More specifically, it was not disputed that the relevant act of non-referral was done in the exercise of non-statutory executive power and so did not amount to a decision made, proposed to be made or required to be made 'under' the Act. The respondents did not object to the competency of the applications for judicial review, premised as they were on the jurisdiction conferred under s 39B(1) of the Judiciary Act in relation to decisions or actions that did not fall within the definition of a 'migration decision'.

24    Then, after passages in which Charlesworth J outlined and considered the argument that provides the starting point for the applicant's case here (see [11(1)] above) her Honour said (at [291]):

The question of this Court's jurisdiction to grant the claimed relief is not without its conceptual difficulties. I am nonetheless satisfied that the assessments in the present cases did not, of themselves, constitute a decision 'under the Act', including by reference to the expanded definition of a 'decision'. In particular, I do not consider the assessments to have been preparatory or otherwise advisory to a substantive decision under s 351 of the Act. Nor do I consider the assessments to have been preparatory to the exercise of any personal procedural power to decide whether or not to consider the requests. That is because of the distinction to be drawn between the role of the Department in bringing the existence of requests to the Minister's attention, and the Minister's discretion to give the content of the request no consideration at all.

25    The assessments to which her Honour referred were assessments conducted by departmental officers under guidelines issued by the Minister which resulted in requests under s 351 (which confers a personal, non-compellable power similar in that respect to that conferred by s 195A) not being referred to the Minister for consideration. It appears to me that the same conclusion must follow in respect of an application to compel the performance of the asserted duty to refer a request to the Minister in the absence of any such guidelines.

26    Counsel for the respondents in this case conceded that the applicant had an arguable basis to bring the matter within the Court's jurisdiction under s 39B(1) of the Judiciary Act. For the reasons articulated by Charlesworth J, I was persuaded that this concession was correct.

27    It also appeared to me to be at least arguable that the other claims advanced by the applicant fall within the jurisdiction of the Court because they form part of the same 'matter' as the primary claim for mandamus: see National Australia Bank Limited v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543 at [81]; Fencott v Muller (1983) 152 CLR 570 at 603. No submission was advanced that the ouster of jurisdiction in s 476A cuts across that.

Why the interlocutory injunction was granted

28    There is no need to rehearse the well-established principles on which interlocutory injunctions may be granted. As is about to be described, the submissions of counsel for both parties helpfully distilled the issue for determination down to one question.

29    The applicant submitted that the balance of convenience in this case strongly favoured him and the respondents did not take issue with that for the purposes of the urgent application. I accept the submission; to return a 72-year-old man with apparent health issues to a country in which he has not lived since he was 9 years old will drastically affect his life, and no apparent countervailing interest of the respondents outweighs that.

30    As to whether there is a serious question to be tried, the argument outlined at [11] above has recently found sufficient favour with two other judges of this Court to result in interlocutory injunctions: AOZ23 v Commonwealth of Australia [2023] FCA 1312 (Rofe J); AUR23 v Commonwealth of Australia [2023] FCA 1394 (Hespe J). In addition, counsel for the respondents properly conceded that in light of Charlesworth J's reasons in Davis FCAFC, the applicant has a reasonably arguable case for mandamus to compel the exercise of the alleged duty to bring the s 195A request to the Minister's attention.

31    When asked why, then, an injunction should not issue to preserve the applicant's claimed right to mandamus, counsel for the respondents relied on three other judgments of this Court. Those, he submitted, meant that it was not reasonably arguable, as a matter of construction of s 198(2B), that the duty of the Secretary to remove the applicant from Australia had not arisen. That being so, an injunction should not issue because it would, in effect, be a command to the Secretary to disobey his statutory duty to remove the applicant from Australia. The three decisions on which the respondents relied were: MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 877 (Colvin J); BJM16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 995 (Rares J); and ASU22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1326 (Wigney J). It is not necessary to refer to that last decision further as in it, Wigney J relevantly simply relied on BJM16.

32    The judges in each of AOZ23 and AUR23 did have MZAPC and BJM16 referred to them, but did not consider that the argument now relied on was ruled out. However, counsel for the respondents here submitted that neither Rofe J nor Hespe J dealt in any detail with the true effect of the construction of s 198 considered in MZAPC and BJM16. It was therefore appropriate for me to consider the latter cases in a little more detail.

33    In MZAPC, the applicant submitted that it would be unlawful for him to be removed from Australia while he had 'pending' requests for the favourable exercise of the Minister's powers under s 48B, s 195A, s 351 and s 417 of the Migration Act. Relying on Davis HCA, Colvin J held (at [9]-[11]) that these powers were only exercisable by the Minister personally and could not be delegated, and that the Minister could not be compelled to consider exercising them. His Honour further held that the Minister could not be compelled even to decide to consider whether to exercise them, that is, could not be compelled to make the procedural decision. It followed that there could be no obligation on the Minister to do something in respect of the request within a reasonable time. It was therefore not possible to determine whether, and if so when, a request made by a person such as MZAPC may be attended to by the Minister.

34    Colvin J held that these aspects of the powers under s 195A and similar provisions were fatal to MZAPC's application to the FCFCOA for injunctive relief (at [12]). MZAPC sought to support that application (and thus obtain leave to appeal from the FCFCOA's decision) on two bases (at [25]-[27]). First, it was said that on the proper construction of s 198, it would not be 'reasonably practicable' to remove a person while a request for exercise of the relevant powers was 'pending'. Second, it was submitted that in order to read s 198 and the provisions conferring powers on the Minister like s 195A harmoniously with each other, s 198 should be read so that it does not require a person who has made a request for the exercise of one or more of those powers to be removed until it is clear whether or not the Minister was going to consider the request. Otherwise, the officer who decides to remove the applicant from Australia (and does so) will thereby pre-empt the Minister's personal non-delegable power to decide whether to consider the request, and so interfere with the Minister's personal non-delegable power.

35    Colvin J disposed of these arguments in the following way (at [30]):

I am not satisfied that the decision of the primary judge was attended with sufficient doubt to justify leave to appeal. The principal difficulty with the characterisation of the legal contentions advanced by the applicant as being sufficiently arguable to support a grant of leave to appeal is that they seek to give some legal consequence to the fact that the applicant has made requests for the Minister to consider the exercise of the personal powers. The error lies in the notion that a request might be 'pending' in some sense. The description of a request as 'pending' ascribes to the request some characteristic that requires a decision or determination at some future time such that the request awaits some subsequent event that is to occur. However, as has been explained, the nature of the relevant powers is such that they are both personal and non-compellable. It 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.

See also MZAPC at [40].

36    It may be seen then that the arguments before Colvin J in MZAPC, and therefore the manner in which his Honour determined the question before him, were based on the proposition that until the Minister had either determined that he would not consider a request, or had determined that he would consider a request and then rejected the request, the duty to remove under s 198 would not arise. It is that proposition which his Honour rejected, on the ground that since the Minister has no obligation to ever make either a procedural decision or substantive decision, the request could not be considered 'pending' in the sense that it would necessarily be resolved at some later time. It would be consistent with the Migration Act for the Minister never to make either kind of decision under, say, s 195A. In light of that, and in light of the way the arguments were put to Colvin J, it is easy to see why his Honour did not consider it reasonably arguable that s 198 should be read so as to mean that the duty to remove did not arise until the Minister made the decision.

37    The argument that the prospective applicant has put in this case was not put to Colvin J. It is not inconsistent with MZAPC to say that it is reasonably arguable that under s 198, it does not become 'reasonably practicable' for an officer of the Department to remove a person at least until a compellable non-statutory duty on the part of the Secretary to refer a request under s 195A to the Minister has been exercised. For it was the non-compellable aspect of the Minister's powers that Colvin J found to be especially relevant in the question put to him. The Minister might never exercise the powers, and the Migration Act could not reasonably be understood to defer the duty to remove indefinitely: see also MZAPC at [41].

38    The other case on which the respondents principally relied was BJM16. Yet, there too the arguments put to Rares J were materially different to the argument put in this application. In BJM16, the appellant had made a request under s 48B of the Migration Act. Ministerial guidelines about the exercise of that power that were in evidence. They set out principles on which officers of the Department were to determine, in particular, whether the request was likely to engage Australia's protection obligations and so should be referred to the Minister personally (see [11]). Relevantly, the injunction sought was to prevent the removal of the appellant from Australia until the Minister made either the procedural decision not to consider exercising the power under s 48B or the substantive decision not to exercise that power (at [25]).

39    The appellant in BJM16 submitted that the duty imposed on an officer under s 198(6) to remove him as soon as reasonably practicable had to be postponed while there was a realistic possibility that the Minister would consider exercising his discretion under s 48B favourably towards the appellant. However, the appellant also submitted, relying on Plaintiff M61/2010E, that the obligation to remove did not arise until the Minister made a decision not to consider the request, by means of the officers of the Department following the guidelines, and so determining that the Minister would not consider the request (at [27]-[28]).

40    Putting this a different way, the submission was that the duty to remove under s 198(6) did not arise until the Minister had made the procedural decision adversely to the appellant, by way of the application (by officers of the Department) of the guidelines to the appellant's case. It was submitted to Rares J that, unless s 198(6) were construed to contain the implication that the duty to remove does not arise until there is no realistic possibility that the Minister will make the procedural decision in the appellant's favour, then the removal of the appellant from Australia would defeat the purpose of conferring the power to make the procedural decision on the Minister personally. So while the factual background was different, the construction argument was similar to that made in MZAPC.

41    After discussion of relevant cases, including MZAPC, Rares J dealt with the appellant's construction as follows:

42    It can be seen that, as in MZAPC, it was important to the outcome in BJM16 that the consequence of the asserted construction of s 198 would be that removal from Australia could be postponed indefinitely by the making of a request under s 195A or similar powers. It was important in that regard that the exercise of the Minister's powers was non-compellable.

43    It seemed arguable to me that the same problem does not arise on the case proposed to be presented by the applicant here. As Kenny and Mortimer JJ noted in WKMZ (at [116]):

the composite statutory phrase in s 198 has two aspects - 'as soon as' and 'reasonably practicable', both of which indicate that the executive is not afforded unlimited time to consider alternative options but rather is to act promptly, and is obliged to act reasonably in the way it considers those alternative options.

44    It is reasonably arguable that to understand s 198 as deferring the duty to remove at least until the Secretary has referred an extant s 195A request to the Minister is not to invite indefinite deferral, in view of the compellable nature of the Secretary's obligation and the implicit requirement for the Secretary to act promptly.

45    I acknowledge that in addition, the respondents here made the same argument that found favour with Rares J at [44]-[45] above (and with Colvin J in MZAPC at [43]-[44]), that it is inconsistent with the prescriptive nature of s 197C to read an implied limitation into s 198 so as to accommodate what might be required to give effect to the powers under s 195A and similar provisions. However that textual indication did not seem to me to be so obviously compelling as to render the construction outlined at [11(4)-(6)] above less than reasonably arguable.

46    The respondents also submitted that Plaintiff M61/2010E and WKMZ and did not go as far as they need to in order to support the applicant's case. In Plaintiff M61/2010E, the steps which the High Court said s 198 must be taken to accommodate, were steps taken by the Minister. Here, no steps by the Minister are in issue, because the s 195A request has not been brought to the Minister's attention. And in WKMZ, it was submitted, there was nothing that suggests that the removal duty under s 198 was qualified by the Minister's non-compellable powers under s 195A or similar provisions. But while those submissions may turn out to be correct, I did not consider that it was possible or appropriate for me to make a firm determination about them in the time permitted by the urgency of the matter: see e.g. OD Transport Pty Ltd v Western Australian Government Railways Commission (1986) 13 FCR 270 at 274 (French J). Full consideration of the context of and reasoning in Plaintiff M61/2010E and WKMZ was not possible in the time available.

47    In addition, it was said from the bar table without objection that the case of AOZ23 is due to be heard by a Full Court exercising original jurisdiction in February 2024. While not determinative, that appeared to me to be an additional reason in favour of exercising the discretion to grant an injunction. If the issues raised are to be determined by a Full Court reasonably soon, it would arguably pre-empt that result (in so far as it may affect the applicant here) to permit his removal from Australia in the meantime.

48    However, it did not necessarily follow from this that the injunction to be granted yesterday should be in force until the Full Court determines the case of AOZ23. Overriding that was the basic consideration that all that was before the Court was an urgent application before the start of a proceeding, in pursuance of which the applicant has undertaken to commence a substantive proceeding within 14 days of determination of the urgent application. I determined that granting the injunction until 22 December 2023 would provide adequate time for the applicant to commence that proceeding, and for any question of further interim relief to be determined in the context of that proceeding.

Associate:

Dated:    6 December 2023