ASU22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1326

ASU22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1326

The applicant had no arguable basis for injunctive relief because the Minister was under no duty to consider or determine the applicant's s 48B request before removal, the request did not qualify or restrict the statutory duty under s 198(6) to remove him as an unlawful non-citizen, and his factual claims of feared harm did not justify revisiting or delaying removal after his protection visa claim and review and appeal rights had been exhausted.

Jurisdiction
Australia
Judgment Date
18 October 2023
Procedural Posture
Migration Application for Injunctive Relief Under S 39 B of the Judiciary Act 1903 (cth) Restraining Removal From Australia / Urgent Interlocutory Injunction Application Heard by Duty Judge After Refusal of Protection Visa, Unsuccessful Tribunal Review and Judicial Review, and Request for Ministerial Intervention Under S 48 B of the Migration Act 1958 (cth)
Outcome
Application dismissed with costs.
Legal Topics
['removal of Unlawful Non Citizen' 'protection Visa Refusal' 'ministerial Intervention Under S 48 B' 'interlocutory Injunction' 'non Refoulement Obligations']
['migration Law' 'administrative Law'] ['removal of Unlawful Non Citizen' 'protection Visa Refusal' 'ministerial Intervention Under S 48 B' 'interlocutory Injunction' 'non Refoulement Obligations']

Case Brief

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Procedural Posture

Migration Application for Injunctive Relief Under S 39 B of the Judiciary Act 1903 (cth) Restraining Removal From Australia / Urgent Interlocutory Injunction Application Heard by Duty Judge After Refusal of Protection Visa, Unsuccessful Tribunal Review and Judicial Review, and Request for Ministerial Intervention Under S 48 B of the Migration Act 1958 (cth)

Legal Issues

  1. 1 ['Whether the applicant had a prima facie case or serious question to be tried supporting an interlocutory injunction restraining removal from Australia.' 'Whether a request for Ministerial intervention under s 48B of the Migration Act 1958 (Cth) prevents or delays the duty to remove an unlawful non-citizen under s 198(6).' "Whether the applicant's claimed fears of harm in Malaysia provided a basis to restrain removal after exhaustion of review and appeal rights."]

Ratio Decidendi

The applicant had no arguable basis for injunctive relief because the Minister was under no duty to consider or determine the applicant's s 48B request before removal, the request did not qualify or restrict the statutory duty under s 198(6) to remove him as an unlawful non-citizen, and his factual claims of feared harm did not justify revisiting or delaying removal after his protection visa claim and review and appeal rights had been exhausted.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application be dismissed.' "The applicant pay the first respondent's costs of the application." 'The name of the first respondent be amended to the "Minister for Immigration, Citizenship and Multicultural Affairs".']