HBMH v Commonwealth of Australia [2023] FCA 1527

HBMH v Commonwealth of Australia [2023] FCA 1527

It is reasonably arguable that the Secretary's failure to refer the applicant's s 195A request to the Minister may attract mandamus, and that until that occurs, the duty to remove under s 198(2B) does not arise. The balance of convenience overwhelmingly favours the applicant. On this basis, an interlocutory injunction restraining the applicant's removal is justified pending resolution of the substantive issues.

Jurisdiction
Australia
Judgment Date
04 December 2023
Procedural Posture
Urgent Interlocutory Application Before Commencement of Substantive Proceeding / Interlocutory Injunction Granted Pending Commencement of Substantive Proceeding
Outcome
Interlocutory injunction granted restraining removal pending commencement of substantive proceeding
Legal Topics
['interlocutory Injunctions' 'ministerial Powers Under Migration Act' 'jurisdiction of Federal Courts' 'immigration Detention' 'statutory Interpretation' 'mandamus' 'removal of Unlawful Non Citizens']
['migration Law' 'administrative Law' 'constitutional Law' 'human Rights'] ['interlocutory Injunctions' 'ministerial Powers Under Migration Act' 'jurisdiction of Federal Courts' 'immigration Detention' 'statutory Interpretation' 'mandamus' 'removal of Unlawful Non Citizens']

Case Brief

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Procedural Posture

Urgent Interlocutory Application Before Commencement of Substantive Proceeding / Interlocutory Injunction Granted Pending Commencement of Substantive Proceeding

Legal Issues

  1. 1 ['Whether the Secretary has a compellable, non-statutory duty to refer a s 195A Migration Act request to the Minister' "Whether an injunction can restrain removal pending the Minister's consideration of a s 195A request" 'Whether the Federal Court has jurisdiction under s 39B Judiciary Act 1903 (Cth) to entertain such application given s 476A Migration Act']

Ratio Decidendi

It is reasonably arguable that the Secretary's failure to refer the applicant's s 195A request to the Minister may attract mandamus, and that until that occurs, the duty to remove under s 198(2B) does not arise. The balance of convenience overwhelmingly favours the applicant. On this basis, an interlocutory injunction restraining the applicant's removal is justified pending resolution of the substantive issues.

Court Disposition

Interlocutory injunction granted restraining removal pending commencement of substantive proceeding

Orders

  • ['Counsel permitted to deliver oral submissions by video link for this hearing.' 'Respondents restrained until 5pm AWST on 22 December 2023 from removing the applicant from Australia.' 'Costs reserved.']