Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC [2024] FCAFC 34

FEDERAL COURT OF AUSTRALIA

Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC [2024] FCAFC 34 Appeal from: MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 989

File number(s): WAD 221 of 2023

Judgment of: SARAH C DERRINGTON, COLVIN AND JACKSON JJ

Date of judgment: 18 March 2024

Catchwords: MIGRATION – application by Minister for leave to appeal against grant of interlocutory injunction restraining the removal of the respondent from Australia – where respondent has exhausted all avenues of review and appeal and does not contest that he is an unlawful non-citizen –where respondent has sought personal intervention of Minister under ss 195A and 417 of the Migration Act 1958 (Cth) – where some requests remain pending and others have not been referred to the Minister by officers acting in purported compliance with ultra vires Ministerial Instructions – where Minister's powers are personal and non-compellable – whether respondent has a sufficient legal or equitable right sufficient to support an injunction – whether equitable relief sought by respondent impossible or futile INJUNCTIONS – application by Minister for leave to appeal against grant of interlocutory injunction restraining the removal of the respondent from Australia – where injunction sought is in aid of maintenance of the status quo pending the speculative exercise of a personal, non-compellable power – whether equitable relief sought by respondent impossible or futile

Legislation: Federal Court of Australia Act 1976 (Cth) s 23 Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 4, 5(1), 13, 14, 48B, 116(1), 189, 195A, 196, 198, 351, 417, 474(7), 476A Migration Regulations 1994 (Cth), reg 2.43(1)(p), Sch 1 item 1403(3)