Shi v Commonwealth of Australia [2024] FCA 231

Shi v Commonwealth of Australia [2024] FCA 231

The applicant failed to establish a prima facie case for relief because the Minister had not embarked on considering whether to exercise the personal non-compellable powers under s 195A or s 417, no basis for the first declaration was pressed, and the mere making and referral of a Ministerial intervention request did not make removal not reasonably practicable or suspend the duty under s 198(6) to remove the applicant as soon as reasonably practicable. The authorities in MZAPC, BJM16 and ASU22 applied, while HBMH and AOZ23 were distinguishable. The application for interlocutory relief was therefore dismissed.

Jurisdiction
Australia
Judgment Date
08 March 2024
Procedural Posture
Migration Application for Interlocutory Injunctive Relief Under S 39 B of the Judiciary Act 1903 (cth) to Restrain Removal From Australia / Application for Interlocutory Relief
Outcome
Application for interlocutory relief dismissed with costs.
Legal Topics
['removal of Unlawful Non Citizen' 'ministerial Intervention Under Ss 195 a and 417 of the Migration Act 1958 (cth)' 'visa Cancellation Under S 501(3 A) of the Migration Act 1958 (cth)' 'interlocutory Injunction' 'prima Facie Case' 'reasonably Practicable Removal Under S 198(6) of the Migration Act 1958 (cth)']
['migration Law' 'administrative Law' 'constitutional Law and Human Rights'] ['removal of Unlawful Non Citizen' 'ministerial Intervention Under Ss 195 a and 417 of the Migration Act 1958 (cth)' 'visa Cancellation Under S 501(3 A) of the Migration Act 1958 (cth)' 'interlocutory Injunction' 'prima Facie Case' 'reasonably Practicable Removal Under S 198(6) of the Migration Act 1958 (cth)']

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Procedural Posture

Migration Application for Interlocutory Injunctive Relief Under S 39 B of the Judiciary Act 1903 (cth) to Restrain Removal From Australia / Application for Interlocutory Relief

Legal Issues

  1. 1 ['Whether the applicant had a prima facie case for declaratory and injunctive relief restraining his removal from Australia.' 'Whether a request for Ministerial intervention under s 195A or s 417 of the Migration Act 1958 (Cth), referred to the Minister but not yet considered by him, makes removal not reasonably practicable under s 198(6).' 'Whether the duty imposed by s 198(6) to remove the applicant as soon as reasonably practicable is suspended until the Minister completes consideration of the intervention request.' "Whether HBMH v Commonwealth of Australia (No 2) [2024] FCA 8 or AOZ23 v Commonwealth of Australia supported interlocutory relief in the applicant's circumstances."]

Ratio Decidendi

The applicant failed to establish a prima facie case for relief because the Minister had not embarked on considering whether to exercise the personal non-compellable powers under s 195A or s 417, no basis for the first declaration was pressed, and the mere making and referral of a Ministerial intervention request did not make removal not reasonably practicable or suspend the duty under s 198(6) to remove the applicant as soon as reasonably practicable. The authorities in MZAPC, BJM16 and ASU22 applied, while HBMH and AOZ23 were distinguishable. The application for interlocutory relief was therefore dismissed.

Court Disposition

Application for interlocutory relief dismissed with costs.

Orders

  • ['The application for interlocutory relief is dismissed.' "The applicant pay the respondents' costs."]