AOZ23 v Commonwealth of Australia [2023] FCA 1312

AOZ23 v Commonwealth of Australia [2023] FCA 1312

Because the compellability of non-statutory executive action is an issue on which there is diverging Federal Court opinion, there was a prima facie case to be ventilated; the balance of convenience favoured a short injunction to preserve the subject matter of the prospective judicial review proceeding and because of the potential harm to the Prospective Applicant if removed to Sri Lanka. The injunction restraining removal was therefore granted.

Jurisdiction
Australia
Judgment Date
25 October 2023
Procedural Posture
Urgent Application for Interlocutory Injunction in a Migration Matter / Interlocutory Application Before Commencement of Foreshadowed Judicial Review Proceeding
Outcome
Injunction granted; removal restrained until 4.00 pm on 15 November 2023; matter listed for interlocutory hearing; costs reserved.
Legal Topics
['interlocutory Injunction' 'removal From Australia' 'ministerial Intervention Request Under S 48 B of the Migration Act 1958 (cth)' 'non Statutory Executive Power' 'mandamus' 'prima Facie Case' 'balance of Convenience']
['migration' 'administrative Law' 'constitutional Law and Human Rights'] ['interlocutory Injunction' 'removal From Australia' 'ministerial Intervention Request Under S 48 B of the Migration Act 1958 (cth)' 'non Statutory Executive Power' 'mandamus' 'prima Facie Case' 'balance of Convenience']

Case Brief

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Procedural Posture

Urgent Application for Interlocutory Injunction in a Migration Matter / Interlocutory Application Before Commencement of Foreshadowed Judicial Review Proceeding

Legal Issues

  1. 1 ['Whether the Prospective Respondents should be restrained from removing the Prospective Applicant from Australia pending commencement of judicial review proceedings.' "Whether there is a prima facie case concerning the availability of mandamus to compel a departmental officer to bring a s 48B intervention request to the Minister's attention where no referral decision has been made." 'Whether the balance of convenience favours a short injunction to preserve the subject matter of the prospective proceeding and avoid potential harm to the applicant if removed to Sri Lanka.']

Ratio Decidendi

Because the compellability of non-statutory executive action is an issue on which there is diverging Federal Court opinion, there was a prima facie case to be ventilated; the balance of convenience favoured a short injunction to preserve the subject matter of the prospective judicial review proceeding and because of the potential harm to the Prospective Applicant if removed to Sri Lanka. The injunction restraining removal was therefore granted.

Court Disposition

Injunction granted; removal restrained until 4.00 pm on 15 November 2023; matter listed for interlocutory hearing; costs reserved.

Orders

  • ['The name of the Second Prospective Respondent be amended to the "Secretary, Department of Home Affairs".' 'Until 4.00 pm on 15 November 2023, the Prospective Respondents, including by their servants and agents, be restrained from removing the Prospective Applicant from Australia.' 'The matter be listed for...