HBMH v Commonwealth of Australia (No 2) [2024] FCA 8

HBMH v Commonwealth of Australia (No 2) [2024] FCA 8

There is a serious question to be tried as to whether the duty to remove the applicant from Australia under s 198 of the Migration Act 1958 (Cth) is deferred while the Minister considers, or may consider, exercising intervention powers under s 195A or s 197AB; in light of this, and because the balance of convenience favours the applicant, an interlocutory injunction should be granted restraining removal pending final determination.

Parties
Applicant: HBMH; First Respondent: Commonwealth of Australia; Second Respondent: Secretary of the Department of Home Affairs; Third Respondent: Minister for Immigration, Citizenship and Multicultural Affairs
Jurisdiction
Australia
Judgment Date
11 January 2024
Procedural Posture
Judicial Review / Interlocutory Injunction Application / Interlocutory Application for Injunctive Relief Pending Final Resolution
Outcome
Interlocutory injunction granted restraining removal of applicant from Australia pending final resolution; costs reserved.
Legal Topics
Ministerial Intervention Powers, Immigration Detention, Interlocutory Injunctions, Procedural Fairness, Jurisdictional Fact, Legal Unreasonableness, Deportation/removal of Unlawful Non Citizen
Migration Law Administrative Law Constitutional Law Human Rights Ministerial Intervention Powers Immigration Detention Interlocutory Injunctions Procedural Fairness +3 more

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Parties

HBMH

Applicant

Commonwealth of Australia

First Respondent

Secretary of the Department of Home Affairs

Second Respondent

Minister for Immigration, Citizenship and Multicultural Affairs

Third Respondent

Procedural Posture

Judicial Review / Interlocutory Injunction Application / Interlocutory Application for Injunctive Relief Pending Final Resolution

Legal Issues

  1. 1 Whether there is a serious question to be tried justifying an interlocutory injunction restraining the removal of the applicant from Australia
  2. 2 Whether the Minister made a procedural decision to consider exercising powers under s 195A or s 197AB of the Migration Act 1958 (Cth)
  3. 3 Whether the Secretary owed a duty (the 'Davis duty') to refer the applicant’s request for ministerial intervention to the Minister and whether that duty was properly performed

Ratio Decidendi

There is a serious question to be tried as to whether the duty to remove the applicant from Australia under s 198 of the Migration Act 1958 (Cth) is deferred while the Minister considers, or may consider, exercising intervention powers under s 195A or s 197AB; in light of this, and because the balance of convenience favours the applicant, an interlocutory injunction should be granted restraining removal pending final determination.

Court Disposition

Interlocutory injunction granted restraining removal of applicant from Australia pending final resolution; costs reserved.

Orders

  • Minister for Immigration, Citizenship and Multicultural Affairs joined as third respondent.
  • Applicant granted leave to amend originating process.