AUR23 v Commonwealth of Australia [2023] FCA 1394

AUR23 v Commonwealth of Australia [2023] FCA 1394

The Court granted a short interlocutory injunction because, taking the prospective applicant's case at its highest, there was an open prima facie question whether a compellable duty existed to refer the ministerial intervention request to the Minister and whether the s 198 removal obligation allowed reasonable time for that duty to be performed. Removal before the filing of judicial review proceedings would negate the asserted right and duty, and the serious consequences of removal meant the balance of convenience favoured preserving the subject matter for a short period despite practical concerns about Jordanian travel documents.

Jurisdiction
Australia
Judgment Date
10 November 2023
Procedural Posture
Migration Application for Interlocutory Injunction to Restrain Removal From Australia / Urgent Interlocutory Application Before the Victorian General Duty Judge
Outcome
Interlocutory injunction granted; costs reserved.
Legal Topics
['interlocutory Injunction' 'removal From Australia' 'ministerial Intervention Requests Under Ss 46 a and 48 B of the Migration Act 1958 (cth)' 'mandamus' 'prima Facie Case' 'balance of Convenience']
['migration' 'administrative Law'] ['interlocutory Injunction' 'removal From Australia' 'ministerial Intervention Requests Under Ss 46 a and 48 B of the Migration Act 1958 (cth)' 'mandamus' 'prima Facie Case' 'balance of Convenience']

Case Brief

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Procedural Posture

Migration Application for Interlocutory Injunction to Restrain Removal From Australia / Urgent Interlocutory Application Before the Victorian General Duty Judge

Legal Issues

  1. 1 ["Whether the prospective applicant had a prima facie case for judicial review seeking mandamus to compel departmental staff to bring his ss 46A and 48B request to the Minister's attention." 'Whether the statutory removal duty under s 198 of the Migration Act 1958 (Cth) precluded interlocutory relief restraining removal while the prospective applicant sought to commence judicial review proceedings.' 'Whether the balance of convenience favoured restraining the prospective respondents from removing the prospective applicant from Australia for a short period.']

Ratio Decidendi

The Court granted a short interlocutory injunction because, taking the prospective applicant's case at its highest, there was an open prima facie question whether a compellable duty existed to refer the ministerial intervention request to the Minister and whether the s 198 removal obligation allowed reasonable time for that duty to be performed. Removal before the filing of judicial review proceedings would negate the asserted right and duty, and the serious consequences of removal meant the balance of convenience favoured preserving the subject matter for a short period despite practical concerns about Jordanian travel documents.

Court Disposition

Interlocutory injunction granted; costs reserved.

Orders

  • ['The prospective respondents, including by their servants and agents, be restrained from removing the prospective applicant from Australia until 4.00 pm on 20 November 2023, or, if the prospective applicant files an originating application in relation to the subject matter of this application on or before 4.00 pm...