CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825

CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825

The interlocutory injunction was refused because, although the applicant's challenge was arguable, the legal argument had real difficulties and the probability of obtaining final relief was low. The Guidelines required evaluative judgments about unique or exceptional circumstances, including a high threshold of serious, ongoing and irreversible harm and continuing hardship, and the detailed recommendation did not itself show legal error. The balance of convenience did not favour relief because the applicant would otherwise remain in immigration detention, his practical contact with his daughter was likely to remain by remote communication, he could prosecute the proceeding from the United...

Jurisdiction
Australia
Judgment Date
12 June 2020
Procedural Posture
Judicial Review Proceeding Concerning a Departmental Officer's Decision Not to Refer a Request for Ministerial Intervention Under S 351 of the Migration Act 1958 (cth) / Urgent Interlocutory Application for an Injunction Restraining Removal From Australia
Outcome
The applicant's claim for interlocutory relief was dismissed.
Legal Topics
['interlocutory Injunction' 'ministerial Intervention' 'legal Unreasonableness' 'migration Detention and Removal' 'departmental Referral Guidelines' 'balance of Convenience']
['administrative Law' 'migration Law' 'practice and Procedure'] ['interlocutory Injunction' 'ministerial Intervention' 'legal Unreasonableness' 'migration Detention and Removal' 'departmental Referral Guidelines' 'balance of Convenience']

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Procedural Posture

Judicial Review Proceeding Concerning a Departmental Officer's Decision Not to Refer a Request for Ministerial Intervention Under S 351 of the Migration Act 1958 (cth) / Urgent Interlocutory Application for an Injunction Restraining Removal From Australia

Legal Issues

  1. 1 ["Whether there was a serious question to be tried that the departmental determining officer's decision not to refer the applicant's s 351 request to the Minister was legally unreasonable or involved a misunderstanding of the Guidelines." 'Whether the balance of convenience favoured restraining the Minister from removing the applicant from Australia pending determination of the judicial review proceeding.' "Whether removal to the United Kingdom during the COVID-19 pandemic, and its effect on the applicant's relationship with his daughter and ability to conduct the proceeding, justified interlocutory relief."]

Ratio Decidendi

The interlocutory injunction was refused because, although the applicant's challenge was arguable, the legal argument had real difficulties and the probability of obtaining final relief was low. The Guidelines required evaluative judgments about unique or exceptional circumstances, including a high threshold of serious, ongoing and irreversible harm and continuing hardship, and the detailed recommendation did not itself show legal error. The balance of convenience did not favour relief because the applicant would otherwise remain in immigration detention, his practical contact with his daughter was likely to remain by remote communication, he could prosecute the proceeding from the United...

Court Disposition

The applicant's claim for interlocutory relief was dismissed.

Orders

  • ["The applicant's claim for interlocutory relief be dismissed." "The applicant pay the respondents' costs of the interlocutory application, to be fixed by way of a lump sum." 'In the absence of any agreement between the parties within 28 days of these orders, the question of an appropriate lump sum pursuant to...