Federal Court of Australia

HBMH v Commonwealth of Australia (No 2) [2024] FCA 8

ORDERS

THE COURT ORDERS THAT:

1.    The Minister for Immigration, Citizenship and Multicultural Affairs be joined as the third respondent.

2.    The applicant have leave to amend the originating process in the form of Annexure LO-2 to the affidavit of Lester Eng Seong Ong sworn 22 December 2023.

3.    Until final orders are made on the originating process in these proceedings and in proceedings WAD 338 of 2023 or further order of the Court, the respondents whether by themselves, their officers, employees or agents or otherwise, be restrained and an injunction be granted restraining them from removing the applicant from Australia.

4.    The parties may apply on 48 hours’ written notice to vary or discharge the injunction granted in paragraph 3 of these orders.

5.    Costs be reserved.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    On 4 December 2023 Jackson J made orders restraining the first respondent (Commonwealth) and second respondent (Secretary) from removing the applicant from Australia until 5.00pm (AWST) on 22 December 2023. The orders were made upon the applicant’s undertaking to commence these proceedings and on the applicant’s (then prospective applicant’s) interlocutory application for urgent injunctive relief before the start of a proceeding filed on 1 December 2023.

2    On 15 December 2023 the applicant filed an originating application for relief under s 39B of the Judiciary Act 1903 (Cth). On 22 December 2023 the applicant filed an interlocutory application for orders extending the interlocutory injunction Jackon J ordered until 28 days after final judgment in the proceedings. The applicant also sought leave to join the Minister for Immigration, Citizenship and Multicultural Affairs as the third respondent and to amend his originating process in the proceedings. The respondents do not oppose the joinder of the Minister or amendment of the originating process. Hence, orders will be made in terms of the application for the orders sought in respect of those two matters. The respondents oppose an order extending the injunction any later than 25 January 2024.

3    On 22 December 2023 I made an interim order extending the injunction to 4.15pm (AWST) on 8 January 2024 and listed the applicant’s interlocutory application for hearing at 10.15 (AWST) on that day. On 28 December 2023 the applicant filed an originating process in the Federal Circuit and Family Court of Australia (Division 2) under s 476 of the Migration Act 1958 (Cth) in which he requested essentially the same relief on the same grounds as the relief and grounds in his amended originating process in these proceedings. On 29 December 2023 Alstergren CJ made an order transferring that proceeding to this Court pursuant to s 153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). On 3 January 2024 I made an order pursuant to s 32AD(1) of the Federal Court of Australia Act 1976 (Cth) confirming the transfer of the Federal Circuit Court proceedings to this Court. It is evident that the applicant commenced proceedings in the Federal Circuit Court to avoid any issue arising to the effect that this Court does not have jurisdiction to deal with the relief sought in the proceedings. Accordingly, it was appropriate to make the order confirming transfer of the proceedings. The transferred proceedings (WAD 338 of 2023) were also listed for directions on 8 January 2024. For the purposes of the applicant’s interlocutory application for the continuation of the injunction order Jackson J made, I take as a basis for that application that the Court has jurisdiction to grant the relief sought in either these proceedings or the transferred proceedings.

4    On 3 January 2024 the applicant served on the respondents a notice to produce a document referred to in one of the affidavits the respondents had filed in opposition to the interlocutory application. That document was produced shortly before the hearing commenced on 8 January 2024 and tendered by the respondent. Given the late production of the document and its evident importance, as described later in these reasons, I reserved my decision and directed the parties to provide further written submissions on the question of whether that document evidences a procedural decision of the Minister to consider the exercise of his powers under s 195A or 197AB of the Act. I also made an interim order further extending the injunction to 4.15pm (AWST) on 11 January 2024.

5    On 11 January 2024 I made an interlocutory order restraining the respondents from removing the applicant from Australia until final determination of the originating process in these proceedings and the transferred proceedings. The orders were made because I am satisfied that there is a serious question to be tried and the balance of convenience weighs in favour of restraining the respondents from removing the applicant from Australia. These are my reasons for being so satisfied.

Background

6    The applicant is a 72-year-old citizen of the United Kingdom. He entered Australia at the age of nine with his parents and siblings through the ‘Assisted Passage Migrant Scheme’ and has resided in Australia ever since. He has siblings, children and grandchildren in Australia. For a brief period, he served as a regular in the Australian Army. After an honourable discharge, he also served for a short time as a member of the Australian Army Reserve. Evidently, by reason of that service, he is entitled to and in receipt of a Veteren Services Pension. The Australian Electoral Commission evidently considered he has (or had) a right and obligation to vote in Australian elections. In short, to all external appearances the applicant is ‘Australian’, however, by dint of happenstance, he has not been naturalised and is not an Australian citizen.

7    In December 2020 the applicant was convicted of three offences for indecently dealing with a child (his granddaughter), which took place in 2018 and 2019, and sentenced to terms of imprisonment of 12 months, 15 months and six months to be served concurrently. As a consequence, in April 2021, the applicant’s Class BB (subclass 155) Five Year Resident Return visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth). In May 2022 a delegate of the Minister made a decision not to revoke the cancellation of the visa under s 501CA(4) of the Act. In August 2022, a member of the Administrative Appeals Tribunal affirmed the delegate’s decision upon review under s 500(1)(ba) of the Act. In March 2023 Katzmann J made orders dismissing an application for judicial review of the Tribunal’s decision. In August 2023 the applicant was granted leave to discontinue an appeal from the orders of Katzmann J.

8    As a result of the cancellation of his visa, the applicant became an unlawful non-citizen. Pursuant to s 189 of the Act, if an officer (as defined in s 3) knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen the officer must detain the person. Accordingly, upon completion of the applicant’s terms of imprisonment he was taken into immigration detention where he remains. Pursuant to s 196(1) an unlawful citizen detained under s 189 must be kept in immigration detention until, amongst other things, he or she is removed from Australia under s 198 or granted a visa. Pursuant to s 198(2B), in the circumstances described in para [7], an officer must remove the applicant from Australia (as an unlawful non-citizen) as soon as reasonably practicable.

9    Notwithstanding s 198 of the Act, where a person is in detention under s 189, if the Minister thinks that it is in the public interest to do so, the Minister may grant that person a visa under s 195A (whether or not the person has applied for the visa) or may make a residence determination to the effect that the person is to reside at a specific place instead of being detained in immigration detention under s 197AB. The Minister’s powers under each of s 195A and s 197AB must be exercised by the Minister personally and are non-delegable and non-compellable (the Minister has no duty to consider whether to exercise the power irrespective of whether or not a person has requested the Minister to do so).

10    On 8 September 2023 the applicant, through his solicitors, wrote to the Minister seeking the favourable exercise of the Minister’s power under s 195A. The power in s 195A was the subject of the judgment of the High Court in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180. The reasons for decision confirm that the power is personal to the Minister, non-delegable and non-compellable and that there are two decisions that the Minister may make, but need not make, in the exercise of the power. First, the Minister may make a procedural decision as to whether to consider exercising the power in respect of a person in immigration detention. Second, if the procedural decision is made, the Minister may make a substantive decision whether or not to exercise the power favourably to that person: SZSSJ at [53].

11    In November 2023 the applicant was provided with written notice of an intention to remove him from Australian under s 198(2B) of the Act on 5 December 2023. On 1 December 2023 the applicant applied for urgent injunctive relief to restrain his removal from Australia and, as noted earlier, Jackson J made orders for such relief on 4 December 2023. An interim restraint was ordered until 22 December 2023 as later extended by my orders of 22 December 2023 and 8 January 2024 to 4.15pm (AWST) on 11 January 2024.

12    At the time the applicant was given notice of the intention to remove him from Australia and of the hearing before Jackson J, the Secretary (or the Department) had received the applicant’s request for the Minister to exercise the power under s 195A, but that request had not been referred to the Minister. Therefore, at those times, the Minister had not been placed in a position to make a procedural or substantive decision with respect to the applicant’s request.

13    In substance, Jackson J made orders for an interim injunction because he was satisfied that it was reasonably arguable or there was a serious question to be tried to the following effect: HBMH v Commonwealth of Australia [2023] FCA 1527 at [8]-[12], [30], [46]-[48].

(1)    If a request for the exercise of the power under s 195A is made and received by the Secretary, in the absence of any procedural decision of the Minister giving the Secretary a lawful basis not to do so, the Secretary is under a duty to refer the request to the Minister. Otherwise, if the Secretary intercepts the request and does not refer it to the Minister that would amount to an unauthorised purported exercise of the Minister’s personal power to make a procedural decision not to consider the request: Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213; (2022) 288 FCR 23 at [259]-[261] (Charlesworth J, Griffith J agreeing, Besanko and Mortimer JJ disagreeing, subject to qualifications, and Kenny J not deciding). An appeal from Davis FCAFC was allowed by the High Court on a different basis in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; (2023) 408 ALR 381.

 (2)   The Minister had not made any procedural decision that would provide the Secretary with a lawful basis not to refer the applicant’s request to the Minister.

 (3)  The Secretary was under a duty, enforceable by mandamus, to bring the applicant’s request to the Minister’s attention.

 (4)  In the circumstances, no duty to remove the applicant from Australia under s 198(2B) arises because that duty 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 a 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].

Further, other decisions of the Court in which injunctions to restrain the removal of unlawful non-citizens in circumstances in which requests for the Minister to exercise personal, non-delegable and non-compellable powers of intervention were refused because the possibility of the exercise of a power of intervention was not a sufficient basis for deferral of the obligation to remove the non-citizen from Australia (see, 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)) were arguably distinguishable and not inconsistent with a finite deferral to accommodate prompt performance of the Secretary’s duty to refer the request to the Minister: HBMH at [31]-[45].

14    On or about 14 December 2023 the Department provided a submission to the Minister by which the applicant’s request of 8 September 2023 for the Minister to exercise power under s 195A was brought to the attention of the Minister. On 18 December 2023 the Minister made a decision not to consider exercising power under s 195A or s 197AB in response to the applicant’s request.

15    In the meantime, as noted earlier, on 15 December 2023, the applicant filed his originating process in the proceedings. Plainly, there was a significant change of circumstances between the order of Jackson J for an interim injunction to restrain the removal of the applicant from Australia and commencement of the proceedings. Those circumstances were further changed by 22 December 2023 when the period of restraint was due to end. Self-evidently, the foundation for any continuation of the injunction and restraint had been removed. Accordingly, as noted earlier, the applicant filed an interlocutory application for leave to join the Minister and amend the originating process. The continuation of the injunction is now requested on the basis that the amended originating process and grounds set out in an affidavit of Mr Lester Eng Seong Ong sworn 22 December 2023 raise a serious question to be tried such that the balance of convenience favours the grant of an interlocutory injunction.

Applicable principles for interlocutory injunctive relief

16    The Court has power to grant an interlocutory injunction restraining the respondents from removing the applicant from Australia until his application for judicial review is heard and determined under s 23 of the Federal Court of Australia Act 1976 (Cth). Section 23 confers a broad power on the Court to make orders of such kinds, including interlocutory orders, as it ‘thinks appropriate’.

17    In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 at 33 the plurality said: ‘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 proceedings against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked (See Tait v The Queen [1962] HCA 57; (1962) 108 CLR 620).’ The reference to Tait would appear to be a reference to the observation of Dixon CJ (at 623) in that case to the effect that: ‘I have never had any doubt that the incidental powers of the Court can preserve any subject matter, human or not, pending a decision.’

18    The principles upon which a court will grant such an injunction are well-established. The Full Court set out the ‘correct approach’ in Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [52]-[74]. Applicants must first show that they have a prima facie case in the sense of ‘a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial’: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65] (Gummow and Hayne JJ, Gleeson CJ and Crennan J agreeing at [19]). This is commonly referred to as a serious question to be tried. What will be sufficient will depend on ‘the nature of the rights [the applicant] asserts and the practical consequences likely to flow from the order he seeks’: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 at 622. These same considerations apply in public law cases: Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu [2000] HCA 23; (2000) 171 ALR 341 at [7] (Gleeson CJ).

19    These two questions are not entirely distinct. To the contrary, as the Full Court emphasised in Samsung Electronics, the strength of an applicant’s case is a factor to be considered in determining where the balance of convenience lies. Consequently, as Woodward J observed in Bullock v The Federated Furnishing Trades Society of Australasia [1985] FCA 48; (1985) 5 FCR 464 at 472 (Smithers and Sweeney JJ agreeing at 467 and 469 respectively):

… [A]n apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises "a serious question to be tried") may still attract interlocutory relief if there is a marked balance of convenience in favour of it. …

20    In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199, however, Gleeson CJ observed at [18]:

The extent to which it is necessary, or appropriate, to examine the legal merits of a plaintiff’s claim for final relief, in determining whether to grant an interlocutory injunction, will depend upon the circumstances of the case. There is no inflexible rule. …

Grounds of review

21    The applicant’s grounds of review, as amended in the proceedings, and as set out in the originating process in the transferred proceedings, are as follows:

1.    informed the Minister of allegations against the Applicant which were untested and not known to the applicant;

2.    informed the Department of its desire to ‘overturn’ cases of this Court, and that requests of the type the Applicant made were being made simply to ‘frustrate’ removal from Australia;

3.    intended to defeat or attempt to the Applicant’s claim that is the subject of this proceeding.

(d)     For at least so long as the duty to bring the Applicant's request to the attention of the Minister remains constructively unperformed, it is not 'reasonably practicable', within the meaning of s 198(2B) of the Act, for the Applicant to be removed from Australia.

(e)     For so long as the Applicant continues to have the medical conditions identified in the medical report at Annexure LO-5 of the affidavit of Lester Eng Seong Ong sworn 1 December 2023, it is not 'reasonably practicable', within the meaning of s 198(2B) of the Act, for the Applicant to be removed from Australia.

(f)     For so long as the Third Respondent has not made a decision whether to consider exercising his power under s 195A of the Act, pursuant to the Ministerial intervention case initiated by the Third Respondent’s department on 18 July 2023, it is not ‘reasonably practicable’, within the meaning of s 198(2B) of the Act, for the Applicant to be removed from Australia.

(g)     The Minister’s purported decision of 19 December 2023 not to consider whether to exercise his power under s 195A:

i. was a denial of procedural fairness;

ii. was affected by apprehended bias;

iii. took into account irrelevant considerations; and/or

iv. was made for an improper purpose.

22    Although ground (f) is framed as, in effect, a deferral of the obligation of an officer to remove the applicant from Australia for so long as the Minster has not made a decision ‘whether to consider exercising his power under s 195A of the Act’ it became evident from the applicant’s written and oral submissions that he contends that, on 14 November 2022, the Minister made a procedural decision to consider exercising his power under s 195A or 197AB with respect to a cohort of persons detained under s 189 that include persons in the position of the applicant. In accordance with that procedural decision the Minister directed the Secretary to identify persons within that cohort for him to consider the substantive exercise of the powers. On 18 July 2023 the Secretary made a submission to the Minister by which the applicant was identified as a person within an applicable cohort. The Minister has not yet made a substantive decision with respect to the applicant. For so long as a substantive decision is pending, the duty of an officer to remove the applicant under s 198(2B) is deferred because, in effect, he is being held in detention pending the determination of whether or not to grant him a visa.

No substantive decision to consider exercise of power under s 195A or s 197AB

23    It is convenient to start with a consideration of ground (f).

Applicable principles for detention, removal and exercise of powers of intervention

24    There have been a number of decisions in the High Court and this Court that have considered the construction and application of s 195A and other similar provisions of the Act that involve personal, non-delegable and non-compellable powers of the Minister to grant a visa. These may broadly be described as ministerial powers of intervention. A number of decisions have also considered the interaction between an officer’s obligation or duty of detention, release and removal contained in s 189, s 196 and s 198 of the Act and the ministerial powers of intervention.

25    In SZSSJ (at [53]-[55]) the Court summarised the applicable principles concerning s 48B, s 195A and s 417 (these principles would apply equally to s 197AB) as follows:

53     First, each section confers a non-compellable power that is exercised by the Minister personally making two distinct decisions: a procedural decision, to consider whether to make a substantive decision; and a substantive decision, to grant a visa or to lift the bar. The Minister has no obligation to make either decision, and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness.

54    Secondly, processes undertaken by the Department to assist in the Minister’s consideration of the possible exercise of a non-compellable power derive their character from what the Minister personally has or has not done. If the Minister has made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department to assist the Minister’s consideration has a statutory basis in that prior procedural decision of the Minister. Having that statutory basis, the process attracts an implied statutory requirement to afford procedural fairness where the process has the effect of prolonging immigration detention. If the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department on the Minister’s instructions to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness.

55    Thirdly, the question whether the Minister personally has made a procedural decision to consider whether to grant a visa or to lift a bar in a particular case or class of cases is a question of fact.

26    Sections 189, 196 and 198 of the Act confer upon the executive a power of administrative detention. Subject to the constitutional limitation that detention of a non-citizen is limited to a period that is ‘reasonably capable of being seen as necessary’ for one or other of two legitimate and non-punitive purposes (removal or enabling application for and consideration of the grant of a visa), executive detention of a non-citizen is lawful. Thus, the constitutionally permissible period of detention of a non-citizen who has failed to obtain a visa comes to an end if there is no real prospect of removal of the non-citizen from Australia becoming practicable in the reasonably foreseeable future: NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 at [55], see, also, [25]-[54].

27    The lawfulness of continued executive detention must have a foundation in the performance of a legitimate and non-punitive statutory purpose. Therefore, continued detention for the purposes of the Secretary undertaking non-statutory inquiries even if, ultimately, for the purpose of informing the possible exercise of one of the Minister’s powers of intervention under the Act is not legitimate. On the other hand, detention for the purpose of the Secretary undertaking inquiries at the direction of the Minister after the Minister had made a decision to consider the exercise of a power of intervention would have a statutory and, therefore, legitimate purpose and be lawful: Plaintiff M61/2010E at [62]-[65], [70]-[71].

28    It is implicit from the lawfulness of continued detention while inquiries are undertaken that the time for performance of the obligation or duty under s 198 is deferred or has not arisen because the non-citizen is then subject to statutory consideration for the grant of a visa. As Kenny and Mortimer JJ observed in WKMZ (at [115]) the differences in the repositories of the powers and obligation to remove (an officer) and the ministerial powers of intervention (Minister) ‘should be read as allowing the executive to, in effect, communicate to an officer that the time has not yet come to perform the duties imposed by s 198 unless and until [relevantly, the executive has completed its consideration of the exercise of one of the ministerial powers of intervention]’.

29    There are other consequences that flow from the Minister providing instructions to the Secretary to undertake inquiries for the purpose of the Minister considering whether to exercise a power of intervention. As undertaking the inquiries has the effect of lawfully prolonging the duration of the non-citizen’s period of detention the process of inquiry must be procedurally fair and address relevant legal questions: Plaintiff M61/2010E at [76]-[78].

30    It follows that the proper characterisation of the nature of any inquiry undertaken by the Secretary for the purpose of informing the Minister’s possible exercise of a power of intervention is important to determining the question of whether the inquiry is statutory or non-statutory and the extent to which it has the effect of legitimately or lawfully prolonging the period of a non-citizen’s detention.

Is it reasonably arguable that the Minister has made a procedural decision?

31    On 14 November 2022 the Minister made a decision by which he agreed ‘to consider individual detainees in … cohorts through streamlined group first stage Ministerial intervention submissions under … section 195A and section 197AB powers’ that included ‘Detainees in Tier 4 health related specialised held detention placement and/or with complex care needs’. This decision was contained in a submission by the Department marked MS22-002407 and was tendered by the respondent at the hearing on 8 January 2024.

32    The submission sets out the key issues. These included challenges resolving the caseload concerning persons held in long-term detention. The purpose of the submission was to seek the Minister’s agreement ‘to a proposed streamlined approach to reviewing persons in immigration detention for possible Ministerial intervention through [the Minister’s] powers under section 195A and section 197AB of the Act.’ The Department had identified cohorts assessed as ‘low risk of harm to the community’ or ‘that present other compelling or compassionate circumstances which may justify consideration of the use of [the Minister’s] public interest powers’.

33    The submission then sets out the substance of the proposal. It is prefaced with a statement that the Department sought the Minister’s ‘agreement to a streamlined approach to review of the immigration detention population and referral of individual cases for [the Minister’s] consideration under [his] section 195A and section 197AB ministerial intervention powers via group submissions’ to ‘give the most immediate effect to the Australian Government’s commitment on immigration detention’. The Department indicated that many persons in long-term immigration detention would not meet the existing guidelines for referral and that it proposed temporarily streamlining the existing mechanisms through removing the guidelines assessment step for ‘agreed cohorts of individuals whose cases as a whole could be considered to represent compelling or compassionate circumstances.’ The submission then indicated:

10.    … The Department would provide case summaries for individuals in each cohort and refer them on first stage group submissions, seeking your decision on whether you wish to consider intervening in any individual’s case under either your section 195A or section 197AB power. If you agree to consider intervening, the Department would refer individuals on group second stage submissions to you for your final decision. Progressing to the first stage submission process (to indicate if you wish to consider intervening) and the use of group submissions with case summaries detailing the circumstances of each individual, rather than individual submissions will reduce the processing times for the agreed groups.

11.    The proposed approach would enable the Department to more quickly review and prepare cases and support your consideration of more cases. However the Department will still provide a consistent and comprehensive set of key facts and information about individuals to enable you to determine whether to consider intervening in these case would be in the public interest. …

(Emphasis added.)

34     The submission then sets out a description of the proposed cohorts and then indicates that in ‘each individual’s case the Department will provide a recommendation regarding whether the individual should be subject to a Residence Determination or [a] visa’. The submission then deals with a number of other matters not presently relevant.

35    In an affidavit of Ms Georgina Ellis affirmed 4 December 2023 she deposes that she received certain information from the Department concerning ministerial intervention with respect to the applicant. Ms Ellis deposes to the substance of the Department’s recommendation and submission and the Minister’s agreement set out above. She also deposes that the applicant has been the subject of first and second stage submissions of the kind referred to in the Minister’s decision of 14 November 2022 with respect to the exercise of the power under s 197AB made between 8 May and 13 July 2023. Ms Ellis also deposes that on 18 July 2023 a first stage submission was referred to the Minister under s 195A and 197AB of the Act in respect of the applicant. The status of these submissions is not clear on the evidence. None of the submissions or response, if any, of the Minister was in evidence on the application.

36    The respondents contend that it is clear from the Department’s submission that accompanied that decision that the nature of the Minister’s agreement was to a recommendation that he consider, in the first instance through a first stage submission, making a procedural decision to consider whether or not to exercise the power under s 195A or s 197AB for a given individual. Then, if a procedural decision were made in an individual’s favour, consideration would be given to making a substantive decision in an individual’s favour through a second stage submission. The respondent relies on the first emphasised passage in para [10] of the submission quoted above and context drawn from the balance of the submission.

37    While the construction for which the respondents contend is open, the recommendation and submission and the Minister’s decision based upon them are open to reasonable and competing interpretations. It is reasonably arguable that the effect of the decision of the Minister agreeing to the recommendation and submission was that the Minister made a procedural decision to consider the exercise of the powers of intervention for individuals falling within the cohorts described in the recommendation and submission. Further, the substantive decision would be made in two stages based upon: a first stage submission; and a second stage submission. The Department’s indication that it would provide a recommendation regarding whether the individual should be subject to a residence determination or a visa suggests that the information to be provided to the Minister would be for the purpose of considering a substantive not procedural decision. Likewise, the description of a decision after a second stage submission as ‘final’ suggests that consideration of a substantive decision would take place in stages. Namely: (1) a preliminary decision at which a substantive decision may be made not to exercise the power or not to progress the consideration further, or a decision may be made to continue the consideration of the matter through a second stage submission; and (2) after receipt of a second stage submission, a final decision.

38    As the Court observed in Plaintiff M61/2010E at [78]:

The Minister having decided to consider the exercise of power under either or both of ss 46A and 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead at some point to the result that further consideration of exercise of the power is stopped does not deny that the steps that were taken were taken towards the possible exercise of those powers. Nor does it deny that taking the steps that were taken directly affected the claimant’s liberty. There being no exclusion by plain words of necessary intendment, the statutory conferral of the powers given by ss 46A and 195A, including the power to decide to consider the exercise of power, is to be understood as “conditioned on the observance of the principles of natural justice” (69). Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.

39    Further, given that the question of whether the Minister personally made a procedural decision to consider whether to grant a visa or make a residence determination is a question of fact, evidence of the manner in which the proposal to which the Minister agreed on 14 November 2022 operates more broadly in relation to the various cohorts of persons may be of relevance and instructive of the nature and character of the decision the Minister, in fact, made. As already mentioned, the first and second stage submissions and communications between the Department and the Minister regarding the applicant were not in evidence on the interlocutory application. These documents may or may not assist the applicant, but in the absence of them and any evidence of the manner in which the ‘streamlined process’ described in the recommendation and submission is, in fact, administered there is a serious question of fact to be tried as to the nature and character of the Minister’s decision evidenced by his agreement to the Department’s recommendation and submission.

40    It follows that there is a serious question to be tried as to whether an officer is presently under any obligation to remove the applicant from Australia. Therefore, there is a serious question to be tried as to whether the duty to remove the applicant from Australia ‘as soon as reasonably practicable’ has been deferred to accommodate the Minister’s consideration of whether to exercise the power under s 195A or s 197AB with respect to the applicant. That conclusion is not affected by the Minister’s decision not to consider the exercise of the power under s 195A in response to the applicant’s request. That decision concerned the applicant’s request, not a decision relating to a first or second stage submission concerning the applicant.

Denial of procedural fairness, legal unreasonableness, apprehension of bias and improper purpose

41    It is convenient to deal with grounds (a), (d) and (g) together. These grounds raise similar issues which are of some legal and factual complexity.

42    The starting point of the applicant’s submissions regarding grounds (a) and (d) is a contention that the Secretary has a duty, compellable by a writ of mandamus, to refer a non-citizen’s request for the exercise of a power of intervention to the Minister. The applicant characterised the asserted duty as the ‘Davis duty’ as it is derived from the reasons of Charlesworth J in Davis FCFCA referred to earlier in these reasons. While the respondents made the formal submission that the reasons in Davis FCFCA are erroneous and the Secretary was not under the Davis duty or, if so, it was not a duty compellable by the issue of a writ of mandamus, the respondents accepted, in substance, that for the purposes of an interlocutory application for an injunction those propositions are reasonably arguable.

43    The applicant characterises the Davis duty is a non-statutory duty. However, he contends that a non-statutory duty is subject to common law principles to the effect that in the exercise of that duty a decision-maker must afford a person procedural fairness and the duty must be exercised reasonably. Amongst other things, the duty must be performed bona fide for a proper purpose; namely, to refer a non-citizen’s request to the Minister for the purpose of the Minister deciding whether to consider the exercise of a power of intervention in favour of the non-citizen.

44    The respondent does not accept that the Davis duty is conditioned by an obligation to afford the applicant procedural fairness or legal reasonableness because it is merely a duty to refer (bring to the Minister’s attention) the applicant’s request. Otherwise, it was not entirely clear whether or not the Minister accepted that if the Secretary were subject to the Davis duty, that duty must be performed in good faith and for a proper purpose. The respondents’ submissions focussed on the limited nature of the duty and that, in substance, there was no real scope for an absence of good faith or proper purpose if the non-citizen’s request is, as a matter of fact, brought to the Minister’s attention.

45    For the purpose of an interlocutory application for an injunction, I am prepared to accept that the Secretary is subject to the Davis duty and that duty must be performed bona fide for a proper purpose. However, I am not satisfied that it is reasonably arguable that concepts of procedural fairness or legal reasonableness have any role to play in the discharge of the Davis duty. The duty as it is expressed in Davis FCAFC is to refer a non-citizen’s request to the Minister (that is, bring the request to the Minister’s attention). I am not able to conceive of the manner in which the performance of that duty would import a common law requirement of procedural fairness or legal reasonableness as explained in authorities such as Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332.

46    Separately, in the performance of non-statutory duties or functions (including the Davis duty) the Secretary or Departmental officers may undertake an administrative inquiry and provide a submission or advice to the Minister for the purposes of the exercise of a statutory power. I am prepared to accept for the purposes of the application that, if the Minister relies entirely upon a departmental submission or advice to make a statutory decision, the Minister’s decision may be infected by jurisdictional error if the submission or advice was proffered in disregard of any requirements that constrain the exercise of the applicable statutory power of the Minister: Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 at [48]. Therefore, if the Secretary (or Department) proffers a submission or advice to the Minister together with a referral of a non-citizen’s request, aspects of the submission or advice that are in disregard of any constraint on the exercise of the Minister’s procedural power to decide whether or not to consider the exercise of a power of intervention may infect the Minister’s decision with jurisdictional error. However, I do not accept that errors affecting the exercise of ministerial intervention powers would have any bearing on the proper discharge of the Davis duty itself except to the extent that the submission or advice reveals an absence of good faith or proper purpose in the performance of the duty.

47    The next step of the applicant’s submission regarding grounds (a) and (d) is a contention that, if the Davis duty has not been performed, removal of a non-citizen is not ‘reasonably practicable’ within the meaning of s 198 while the duty remains unperformed. In support of that proposition the applicant relies on AOZ23 v Commonwealth of Australia [2023] FCA 1312 (Rofe J), AUR23 v Commonwealth of Australia [2023] FCA 1394 (Hespe J) and HBMH (Jackson J). Again, for the purpose of an application for an interlocutory injunction, it is reasonably arguable that the obligation or duty to remove is deferred for the period between an applicant making a request and the Secretary referring that request to the Minister. In this regard, I respectfully and gratefully adopt the reasoning and analysis of Jackson J in HBMH at [11], [30]-[46].

48    The last step of the applicant’s submission regarding grounds (a) and (d) is an allegation that the Secretary’s referral of the applicant’s request to the Minister was not a proper performance of the Davis duty because the referral was not for the bona fide purpose of the Minister making a procedural decision whether or not to consider exercising power under s 195A of the Act, but for the improper purpose of implementing a ‘strategy’ to circumvent the effect of recent decisions of this Court in which injunctions have been granted until those decisions could be overturned. The strategy involved referring requests for the exercise of a power of intervention to the Minister for the purpose of defeating the foundation for any injunction granted. Implicitly, the strategy also involves the Minister deciding not to consider whether or not to exercise the power of intervention so as to expedite or give effect to (that is not frustrate) the planned removal of the applicant from Australia. The applicant’s allegation of improper purpose is founded on inference. The inference is said to arise from the following facts and matters.

49    On 21 November 2023 judgment was delivered in AUR23 v Commonwealth of Australia (No 2) [2023] FCA 1440. In that case, Wheelahan J was dealing with an application by the respondents to discharge an order Hespe J had made on 10 November 2023 for an injunction on grounds similar to orders Jackson J made before the commencement of these proceedings: AUR23 at [1]. On 15 November 2023 AUR23 filed an originating process. On 16 November 2023 the Secretary referred AUR23’s request to the Minister. On 18 November 2023 (a Saturday) the Minister determined not to intervene. The Secretary’s submission to the Minister included the following statement under the heading ‘Litigation Concerns’:

28         …

Until these recent cases can be overturned, there is a concern that unresolved Ministerial Intervention requests can now be used to prevent involuntary removal. There could be a rolling series of requests to frustrate removal, and the backlog and volume of unresolved requests may impede orderly removal of some persons from Australia. For this reason, it is considered appropriate to escalate this request for your consideration.

50    The applicant submits that there have been a number of successful applications to restrain the removal of applicants from Australia based on contentions that the Secretary has an unfulfilled duty to refer a request for exercise of a power of intervention to the Minister. The Secretary (Department) in its submission in AUR23 (No 2) referred, in substance, to a desire to ‘overturn’ those decisions. The submission also indicates a concern that requests for exercise of the powers of intervention could be used to prevent removal.

51    The submission in AUR23 (No 2) also expresses a concern that there could be a ‘rolling series of requests to frustrate removal’. That implies that persons in detention will make requests for exercise of powers of intervention to frustrate removal. A purpose of making a request for exercise of a power of intervention may result in the grant of a visa. A grant of a visa would necessarily ‘frustrate removal’.

52    In AUR23 (No 2) Wheelahan J considered there was a serious question to be tried as to whether the decision of the Minster in that case, having regard to the timing of the request, the injunction, the commencement of the proceedings, the referral of the request, the decision of the Minister and the contents of the briefing note referred to above and other circumstances to support a claim that the purpose of the decision ‘was not a bona fide consideration of whether there were circumstances which would warrant lifting the bar in the public interest, but was made to expedite the applicant’s planned removal from Australia’: AUR23 (No 2) at [41].

53    The applicant submits that having regard to the similarities between the circumstance in AUR23 (No 2) and the applicant’s case, it may be inferred that the ‘strategy’ described in the submission in AUR23 (No 2) was also employed in the applicant’s case. Further, for similar reasons to those Wheelahan J articulated in AUR23 (No 2) at [41], it may be inferred that the Secretary’s referral of the applicant’s request was not bona fide, but for the purpose of expediting his planned removal.

54    Additionally, the Secretary’s submission to the Minister included prejudicial allegations of conduct of the applicant including conduct of a sexual and criminal nature. The applicant denies the allegations and asserts that he was not aware of them or that the allegations would be included in briefing material provided to the Minister. The applicant submits that it is yet a further reason for inferring that the referral was not bona fide, but for the purpose of obtaining a negative decision from the Minister so as to expedite his planned removal.

55    There is very little evidence to support the applicant’s allegation of improper purpose. Nonetheless, if the facts referred to in AUR23 (No 2) were proved at the final hearing those facts would support the inferences for which the applicant contends. There are, of course, other inferences that are open on the same facts which are consistent with the proper exercise of the Davis duty, including performing the very duty it is alleged should be compelled by a writ of mandamus. Avoiding the necessity for the claimed relief to be granted and the prolongation of costly litigation is an equally plausible explanation for the Secretary escalating or expediting referral of the applicant’s request to the Minister. If the evidence were to remain as it is on the interlocutory application, the applicant would have significant difficulty satisfying the Court that the inferences for which he contends are capable of excluding on the balance of probabilities the inference consistent with the proper exercise of the duty. However, the allegations are not so weak as to preclude the applicant having any real prospect of success.

56    Ground (g) builds on the allegations upon which grounds (a) and (d) are founded, but it deals with the Minister’s exercise of statutory power. As already mentioned, to the extent that the Minister’s decision was based entirely on the Department’s submission and that was proffered in disregard of a requirement that constrains the exercise of the statutory power, that decision may be infected by jurisdictional error. As also already mentioned, the Minister has no obligation to make either a procedural or substantive decision under s 195A and neither decision is conditioned by any requirement that the Minster afford procedural fairness.

57    The respondents submit that exclusion of procedural fairness means that neither the Secretary nor the Minister was obliged to give the applicant notice of the prejudicial matters included in the submission or afford him an opportunity to respond to them. The respondents also submit that bias is an aspect of procedural fairness that is excluded, by implication, from a decision of the Minister.

58    The applicant submits that while the hearing rule may be excluded, an implicit obligation of the Minister to exercise the powers impartially and without bias is not necessarily excluded. It is reasonably arguable, as Wheelahan J accepted in AUR23 (No 2), the circumstances that supply an arguable foundation for an allegation that the Secretary improperly performed the Davis duty also provide an arguable foundation for an allegation that the Minister’s decision was infected by a reasonable apprehension of bias. Accordingly, it might appear to a fair-minded lay observer that the purpose of the Minister’ decision was not a bona fide consideration of whether there were circumstances which would warrant exercising the power in the public interest, but that it was made to expedite the applicant’s planned removal from Australia: AUR23 (No 2) at [41]. Also, that the inclusion of prejudicial and unbalanced information about the applicant in the submission may also give rise to a reasonable apprehension of bias on the ‘double might’ test referred to in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.

59    Procedural fairness (or natural justice) requires that any decision of a Minister that affects a person’s rights, interests or legitimate expectations must be unbiased and free from any reasonable apprehension of bias. ‘Where an administrative decision is made in private, the test for apprehended bias is whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision [Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [28]]. In deciding the issue, the court determines the issue objectively.’: Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 at [68] (McHugh J).

60    I have considerable doubt that a procedural or substantive decision of the Minister concerning the exercise of a power of intervention requires the Minster to act fairly in the sense of impartially and without bias. A reason the High Court concluded that the Minister’s procedural and substantive decisions are not conditioned by procedural fairness was because such decisions do not relevantly affect a non-citizen’s rights, interests or legitimate expectations: Plaintiff M61/2010E at [74]-[79]; Plaintiff S10/2011 at [97]-[100] (Gummow, Hayne, Crennan and Bell JJ), see, also, [50] (French CJ and Kiefel J). Therefore, it is difficult to conceive of the manner in which a procedural or substantive decision could require the Minister to act impartially and without bias as regards any right, interest or legitimate expectation of a non-citizen.

61    The absence of a requirement to afford a person procedural fairness does not mean, however, that the Minister’s powers are unconstrained. An assertion of prejudgement, bias or apprehended bias may be characterised as acting for an improper purpose: Hot Holdings at [51] (Gummow J). Thus, while I do not regard the assertion of a reasonable apprehension of bias raises a serious question to be tried in the sense required to found an interlocutory injunction, the allegations upon which that assertion is based overlap with the applicant’s contention that the Minister’s decision was not made for a proper purpose. As to improper purpose, for the reasons already given, there is a serious question to be tried.

62    The applicant also submits that exclusion of procedural fairness does not exclude implication of a condition on the exercise of the power under s 195A whether the procedural decision or substantive decision that the power must be exercised reasonably. The applicant submits, relying on BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [34]-[35], [61], that there is an overlap between legal unreasonableness and procedural fairness and the absence of an obligation to afford procedural fairness does not mean that making a decision in the absence of a submission or information from a person affected by the decision would not result in a legally unreasonable decision. In Davis FCAFC all members of the Court accepted that s 351(1), which is to similar effect as s 195A(2), confers a discretion sufficient to attract the principle in Li. That is, the power must be exercised reasonably: Davis FCAFC at [25], [32]-[36] (Kenny J), [54] (Besanko J agreeing with Griffiths and Charlesworth JJ), [80]-[81], [83] (Griffiths J), [169], [174] (Mortimer J), [292], [293] (Charlesworth J).

63    For the purposes of an interlocutory application for an injunction, I consider it reasonably arguable that it would be legally unreasonable to make a decision not to consider the exercise of the power under s 195A in respect of a non-citizen based, in part, on accepting as true allegations of sexual and criminal conduct without giving notice of the allegations and an opportunity to provide information, explanation or submission about them. On the information available, it is reasonably arguable that the Minister made his decision not to consider the exercise of power under s 195A based entirely on the Department’s submission of 14 December 2023 and that submission was proffered without notice to the applicant of the prejudicial allegations or affording him an opportunity to respond to them. That was arguably unreasonable in a context in which the allegations were evidently included as relevant information upon which the Secretary intended the Minister to act and make a decision. Therefore, the Minister’s decision is arguably infected with jurisdictional error.

64    The respondent submits that, even if there is merit in the allegations of jurisdictional error, ultimately there is no merit in ground (g) of the amended application because the Minister cannot be compelled by a writ of mandamus to make a decision (procedural or substantive) under s 195A of the Act. That is, there is no utility to relief sought. While I accept that the Court will not issue writs of certiorari or mandamus in respect of the Minister’s decision, I do not accept that if the Minister’s decision was made beyond power (jurisdiction) that the applicant would not be entitled to any relief.

65    The question of what relief may be granted in circumstances in which a writ of mandamus could not issue was considered in Plaintiff M61/2010E. There the Court explained that the unavailability of mandamus entails that there is no utility in granting certiorari to quash recommendations made to the Minister that were founded on a process that infected the Minister’s decision with jurisdictional error. In that case, reviewers who made recommendations to the Minister had failed to afford the non-citizens procedural fairness in circumstances in which they were required to do so for the purpose of the inquiries that led to the recommendations to the Minister: Plaintiff M61/2010E at [99]-[100]. Likewise, there would be no utility in granting relief to set aside the original decision of the Minister if mandamus cannot issue to compel the Minister to reconsider the exercise of power: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134 [2003] HCA 1; (2003) 211 CLR 441 at [48].

66    Notwithstanding that the Court in Plaintiff M61/2010E considered that the claims there for mandamus and certiorari should be rejected, they concluded that a declaration should be made to the effect that the processes undertaken to arrive at the reviewer’s recommendations were flawed: Plaintiff M61/2010E at [101]-[104]. It is, at least, arguable that if the applicant is successful in demonstrating that the process by which the Minister made his decision was flawed the applicant would be entitled to declaratory relief to that effect.

67    However, it is very doubtful that the Court would be persuaded to grant relief in the form of mandamus to compel the Secretary to perform the Davis duty according to law in circumstances in which the Court can neither compel the Minister to make a decision nor set aside the original decision based on a flawed purported exercise of the Davis duty. Accordingly, I consider that the prospect of the applicant obtaining any relief founded on grounds (a) and (d) speculative. In those circumstances, regarding grounds (a), (d) and (g), the foundation for restraining the respondents from removing the applicant from Australia would, in effect, be limited to preserving the subject matter of the proceedings – the applicant’s asserted entitlement to a declaration as to the flawed ministerial decision-making process. That is, I am not satisfied that based on these grounds there is a serious question to be tried to the effect that the obligation or duty under s 198 is deferred pending proper performance of the Davis duty.

Absence of jurisdictional fact

68    Ground (e) concerns a contention that the question of whether it is ‘reasonably practicable’ to remove a person from Australia is a ‘jurisdictional fact’. That is, a fact which must objectively exist for an ‘officer’ to have an obligation or duty to remove a non-citizen from Australia. On that hypothesis, an officer makes a provisional decision that it is reasonably practicable and that decision is subject to challenge and determination in a court of competent jurisdiction.

69    The applicant contends that it is not, as a matter of fact, reasonably practicable to remove him from Australia. The applicant relies on the report of an orthopaedic surgeon dated 26 September 2023. He examined the applicant on 9 September 2023. The effect of that report is that the applicant has a number of medical conditions. In August 2021 the applicant had a fall while at the Yongah Hill Detention Centre that resulted in him developing an ulcer on his right leg that required surgical intervention. Thereafter, he has required ongoing medical attention for a wound on his right leg. He has pain in his right knee with difficulty weight bearing. He has had total hip replacements in both hips. He developed an infection in his left total hip replacement arthroplasty and was admitted to Charles Gairdner Hospital. He underwent a revision of his hip replacement and appears to have ultimately had a satisfactory outcome. He has osteoarthrosis in his right shoulder girdle. He suffers from gout. He presently takes a number of medications.

70    The most significant ongoing medical condition concerns management of the breakdown/ulceration of his right leg. The wound presents an ongoing risk of sepsis and hazard for his hip replacement arthroplasties. Otherwise, he will require comprehensive management of multiple comorbidities. The orthopaedic surgeon ultimately opined that ‘[a]ll things considered, … his general medical status, including the Orthopaedic aspects thereof, contraindicate the advisability of airline, and possibly any other form of travel.’

71    Against the opinion of an orthopaedic surgeon who examined the applicant, the respondents have obtained assessments of the applicant’s fitness to travel from registered nurses on 14 November and 18 December 2023. These assessments indicate that, based on available information, the applicant is fit to travel. For the domestic leg of the flight, it is recommended that he travel with a registered nurse. For the international leg of the flight, it is recommended that he travel with a registered nurse and a doctor. These assessments were not based on the registered nurses’ medical examinations of the applicant, but examinations of the applicant’s medical records. The registered nurses expressed opinions that the applicant is fit to travel subject to considerations that include the availability of a row of economy seating for the domestic leg and a seat that can lie flat (i.e., business class) for the international leg and wheelchair transfers. Additionally, a doctor appears to have completed a Qantas group medical travel clearance form in which it is said that the doctor has assessed the applicant as fit to travel on the nominated flights. Otherwise, the applicant has not consented to a medical examination by a doctor nominated by the respondents for the purpose a assessing his fitness to travel.

72    I accept that on the affidavit material there are, at least, competing opinions of medical practitioners regarding the extent to which the applicant’s physical health renders him fit to be removed from Australia by air travel at the present time. Nonetheless, I infer that an officer formed the view, around 28 November 2023, based on the assessment available as at 14 November 2023, that the applicant was fit to travel and it was reasonably practicable to remove him from Australia at that time.

73    The question of whether ‘reasonably practicable’ is a jurisdictional fact was considered in Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368; (2006) 155 FCR 465. Besanko J concluded that it was not a jurisdictional fact reasoning as follows:

41     In my opinion, the question of reasonable practicability is not a jurisdictional fact. The question is whether “reasonable practicability” is to be finally determined by the officer or only provisionally determined by him or her and finally determined by the Court. As I understand the authorities, that question is ultimately one of statutory consideration. The authorities have identified a number of relevant considerations:

1.    If the factual reference (as it is sometimes called) is expressed in terms of the “opinion”, “belief” or “satisfaction” of the primary decision-maker then the factual reference is not a jurisdictional fact, although there will still be a jurisdictional fact, namely, the primary decision-maker’s state of mind. The contrary does not follow, in that the absence of reference to “opinion”, “belief” or “satisfaction” of the decision-maker does not mean the factual reference is a jurisdictional fact (Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (3rd ed, Lawbook Co., 2004) pp 227-239).

2.    The nature of the task is important. If the task is a difficult and complex one involving an assessment of complex facts and the forming of opinions on a wide range of matters then that suggests that the factual reference is not a jurisdictional fact because it is considered that Parliament intended that the decision be made by the primary decision-maker: Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 465-466 per Black CJ (High Court: Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297); Cabal v Attorney-General (Cth) (2001) 113 FCR 154.

3.    If inconvenience results from holding that a factual reference is a jurisdictional fact then that will be considered a reason not to hold that it is a jurisdictional fact: Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; Australian Heritage Commission v Mount Isa Mines Ltd 60 FCR at 465-466 per Black CJ; Cabal v Attorney-General (Cth) 113 FCR at [74] per Weinberg J. With respect, the clearest statement of the principle remains that of Dixon J (as he then was) in Parisienne Basket Shoes Pty Ltd v Whyte 59 CLR (at 391):

It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court’s opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.

4.    The importance of the decision in terms of the nature of the rights affected by it is a matter to be taken into account. If the rights at stake are fundamental or important rights then that may suggest that the factual reference is a jurisdictional fact: Buck v Comcare (1996) 66 FCR 359 at 364 per Finn J.

42    Applying these factors to the factual reference of “reasonable practicability” in s 198(6) of the Migration Act I have reached the conclusion that it is not a jurisdictional fact. It is true that two of the factors suggest that it should be characterised as a jurisdictional fact, but the other two factors speak so strongly against it being a jurisdictional fact that the first two factors are clearly outweighed. Weighing in favour of the factual reference being a jurisdictional fact is that there is no reference to the officer’s “opinion”, “belief” or “satisfaction” in s 198(6) of the Migration Act, although (as Gummow J noted in Al-Kateb 219 CLR at [121]) the use of the word “reasonably” suggests that there is an element of judgment or assessment in the criterion. Also weighing in favour of the factual reference being a jurisdictional fact is that important interests of the unlawful non-citizen are at stake, although it must be remembered that those interests are at most concerned with the applicant’s detention prior to his eventual deportation and the timing of that deportation, rather than any actual right to remain in Australia. On the other hand, the nature of the task may be a difficult and complex one and may involve a wide range of considerations; indeed, it may be impossible to come to any conclusion without a detailed consideration of a great deal of information, much of it of a political or diplomatic character. Whilst a Court may have little difficulty determining the unlawful non-citizen’s fitness to travel it would be ill-equipped to consider other matters such as conditions in other countries. Furthermore, circumstances may change very quickly and require constant monitoring. A decision that the factual reference is a jurisdictional fact would produce considerable inconvenience because it would mean that an officer’s decision that removal was reasonably practicable would be provisional until upheld by a court in a context where circumstances may change very quickly.

74    The applicant contends that the judgment of the High Court in NZYQ (at [64]-[70]) has undermined the reasoning of Besanko J in that the reasoning of the High Court demonstrates that the Court must, at least in the context of an application for a writ of habeas corpus, undertake the task of considering information, even of a diplomatic or political character, and come to a conclusion about the reasonable practicality of removing a person from Australia. Therefore, the reasoning of Besanko J must now be considered in light of the judgment in NZYQ and it is open to the Court to reach a different conclusion about the proper construction of s 198 of the Act.

75    The parties have not referred me to any binding authority to the effect that the question of ‘reasonably practicable’ is not a jurisdictional fact. Accordingly, in theory, it would be open to a judge of this Court to reach a different conclusion to that of Besanko J in Beyazkilinc. The judgment in NZYQ may, or may not, provide a sound basis for considering that Beyazkilinc should not be followed. Therefore, I accept for the purposes of the application that it is reasonably arguable that ‘reasonably practicable’ is a jurisdictional fact.

76    Nonetheless, it is doubtful that the reasoning of Besanko J is unsound even if it is accepted that the Court can and must, in other contexts, embark upon a factual enquiry into whether it is reasonably practicable to remove a person from Australia within the meaning of s 198. Put another way, there is good reason to consider that the factors which Besanko J considered ‘speak so strongly against it being a jurisdictional fact’ survive the reasoning of the High Court in NZYQ. Accordingly, I would not regard the applicant’s prospects of success on ground (e) as particularly strong at this early stage of the proceedings.

77    Although not expressed in the grounds, in written and oral submissions, the applicant also contends that even if not a jurisdictional fact it is reasonably arguable that a decision of an officer that it is reasonably practicable to remove the applicant from Australia was a legally unreasonable conclusion. The applicant submits unreasonableness is to be inferred because it would be legally unreasonable to prefer the opinions of a registered nurse who had not examined the applicant over the opinion of an orthopaedic surgeon who had examined him and prepared a medico-legal report. Alternatively, it is to be inferred that the officer had no regard to the orthopaedic surgeon’s opinion and, that too, was legally unreasonable.

78    I do not consider there to be any realistic prospect of the applicant establishing that a ‘decision’ of an officer to the effect that it is reasonably practicable to remove the applicant from Australia was legally unreasonable. I do not consider that it is open to infer unreasonableness from the information available and the decision made. It would be open to a decision-maker to prefer the opinions of the registered nurses given that these were qualified by travel subject to the conditions stipulated. The orthopaedic surgeon was not asked to opine and has not expressed an opinion on the applicant’s ability to travel in the company of a doctor and registered nurse and with special seating arrangements. Otherwise, as there are no reasons for the officer’s decision and there is no obligation to provide such reasons, identifying what the decision-maker has or has not taken into account in making the decision is mere speculation.

Balance of convenience

79    There was very little focus in the parties’ submissions on the question of balance of convenience. The respondents, in effect, accepted that if the Court were satisfied that there is a serious question to be tried then the balance of convenience favoured the grant of an injunction.

80    The respondents’ contention on the balance of convenience was, in substance, that while they did not submit the applicant’s proceedings were untenable, the merits of the grounds of review were so doubtful as to not warrant the grant of an injunction even though the balance of convenience would otherwise favour the applicant. Put another way, the respondents submit that there is no serious question to be tried as that expression is understood in the authorities to which reference has earlier been made.

81    As to the balance of convenience, in CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 (at [15]) Mortimer J observed that in public law evaluating the ‘risk of injustice’ may involve a different kind of evaluation to that which typically is undertaken in the private law context. ‘The risk of injustice may, in such circumstances, relate to the frustration of legislative intention within a legislative scheme, or the interruption of the course otherwise contemplated by law.’ To these observations I would add that restraining an officer from performing the obligation or duty under s 198 exposes the executive to the risk of unlawfully detaining a non-citizen beyond the period that is reasonably capable of being seen as necessary for the legitimate and non-punitive purpose of the Act. That is so, even if the non-citizen is content to remain in detention as the ‘price’ of interlocutory injunctive relief. Although the applicant in CPK20 had raised a serious question to be tried, Mortimer J considered there was ‘an insufficient prospect of injustice being caused to the applicant to justify interference with the lawful operation of the legislative scheme under the Migration Act, insofar as it requires the removal of person in the circumstances of the applicant “as soon as reasonably practicable”: [in accordance with s 198]’: at [80]-[81].

82    While I consider grounds (a), (d), (e) and (g) are of doubtful merit, I am satisfied that they raise a serious question to be tried. If these were the only grounds, having regard to the risk of unlawful detention and interference with the obligation or duty of an officer to remove a non-citizen as soon as reasonably practicable, I would have considerable hesitation in concluding that the balance of convenience is sufficiently in the applicant’s favour to grant the interlocutory injunctive relief he seeks. However, I consider ground (f) has sufficient merit and prospects of success to shift the risk of injustice and overall balance of convenience in the applicant’s favour. In the case of that ground, there is a serious question to be tried that includes deferral of the duty to remove the applicant from Australia under s 198 while the Minister considers making a substantive decision under s 195A or s 197AB of the Act.

Conclusion

83    An interlocutory injunction to restrain the respondents from removing the applicant from Australia pending final resolution of the proceedings should be made in the usual terms. Costs should be reserved.

Associate:

Dated: 11 January 2024