Federal Court of Australia AOZ23 v Commonwealth of Australia [2023] FCA 1312 File number(s): VID 866 of 2023 Judgment of: ROFE J Date of judgment: 25 October 2023 Catchwords: MIGRATON – application for interlocutory injunction to prevent the applicant's removal from Australia by the second respondent – where applicant has made requests for the first respondent to exercise personal powers under s 48B of the Migration Act 1958 (Cth) but no decision has been made by the Department whether to refer the request to the Minister – whether grant of mandamus is available to compel officers to exercise non-statutory executive power – conflicting Federal Court authority – serious question to be tried and balance of convenience favours applicant – injunction granted. Legislation: Migration Act 1958 (Cth) Cases cited: BJM16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 995 Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 214 Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 23 Samsung Electronics Company Limited v Apple Incorporated (2011) 217 FCR 238 MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 877 WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 15 Date of hearing: 25 October 2023 Counsel for the Prospective Applicant: Mr M Guo with Dr A Sapienza Solicitor for the Prospective Applicant: Allens Counsel for the Prospective Respondents: Mr B Kaplan Solicitor for the Prospective Respondents: Australian Government Solicitor ORDERS VID 866 of 2023 BETWEEN: AOZ23 Prospective Applicant AND: COMMONWEALTH OF AUSTRALIA First Prospective Respondent SECRETARY, DEPARTMENT OF HOME AFFAIRS Second Prospective Respondent order made by: ROFE J DATE OF ORDER: 25 OCTOBER 2023 THE COURT ORDERS THAT: 1. The name of the Second Prospective Respondent be amended to the "Secretary, Department of Home Affairs". 2. Until 4.00 pm on 15 November 2023, the Prospective Respondents, including by their servants and agents, be restrained from removing the Prospective Applicant from Australia. 3. The matter be listed for interlocutory hearing at 2.15 pm on 15 November 2023. 4. Costs be reserved. THE COURT NOTES THAT: A. The Prospective Applicant undertakes to the Court that the Prospective Applicant will start a proceeding in relation to the subject matter of this application within 14 days after this application has been determined. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT Ex tempore, revised ROFE J: 1 This matter is an urgent application which was brought before me on 18 October 2023 as the Victorian Duty Judge. The orders sought by the prospective applicant are: (1) Until further order, the prospective respondents, including by their servants and agents, be restrained from removing the prospective applicant from Australia; and (2) If this application is opposed, the prospective respondents pay the prospective applicants' costs. 2 The prospective applicant has undertaken to the Court that the applicant will start a proceeding in relation to the subject matter of this application within 14 days after this application has been determined. 3 For the reasons below, I have decided to grant the injunction. 4 The application is made in the shadow of the High Court's decision in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 214, in circumstances where the applicant made a request under s 48B of the Migration Act 1958 (Cth) on 6 March 2023 and, as at 23 October 2023, there has been no decision by an officer of the Department of Home Affairs whether or not to refer the applicant's request to the Minister for consideration. The basis for the request for Ministerial intervention was to permit the applicant to lodge a fresh protection visa application in light of materially changed country circumstances. 5 The applicant is from Sri Lanka. He applied for a protection visa in July 2013, which relevantly was finally determined in the merits sense in August 2015. Judicial review proceedings were exhausted in April 2021. It was not until 12 October 2023 that the applicant was told he was to be removed from Australia on, or after, Thursday 19 October 2023. 6 The applicant then approached the Court, foreshadowing the present urgent injunction application. It then transpired that the applicant was to be removed on the evening of Wednesday 25 October 2023. 7 The principles concerning the grant of interim injunctive relief are not controversial. They were set out by Dowsett, Foster and Yates JJ in Samsung Electronics Company Limited v Apple Incorporated (2011) 217 FCR 238 at [60]–[67]. The Full Court at [67] in Samsung recognised that the issue of whether an applicant has made out a prima facie case and whether the balance of convenience favours the grant of an interim injunction are related inquiries. 8 It was common ground that if the s 48B request had been given to the Minister by the Department, the power to consider it is conferred on the Minister personally. The Minister's power is non-compellable and the Minister can choose to make no decision. The applicant accepted that there would be no basis to seek the injunction if the applicant's application had been brought to the attention of the Minister. 9 The applicant has identified a lacuna with respect to the non-exercise of executive non-statutory power. The applicant intends to bring a judicial review proceeding with respect to the non-statutory executive action not to bring the s 48B request to the Minister's attention. 10 The applicant relies on the conclusion of Charlesworth J in the Full Court decision of Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 23 at [259]–[262] that mandamus is available to compel a departmental officer to bring an intervention request to the Minister's attention. Justice Griffiths in that case agreed at [87]. Justice Mortimer (now Chief Justice Mortimer) disagreed at [121]–[122], as did Besanko J at [52]. However, their disagreement was qualified, and Mortimer J decided that she did not need to decide that point. Justice Kenny did not address the question. 11 There have been two recent Federal Court removal cases, both in August 2023. In neither of those cases did that issue appear to arise. In MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 877, Colvin J at [30], sitting as a single judge of the Full Court and considering whether to grant leave to appeal from a decision of the Federal Circuit and Family Court of Australia, appeared to take a different view to that of Charlesworth J in Davis. However, it appears that the point as to the potential compellability of a non-statutory power was not expressly raised before him. In BJM16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 995, Rares J also considered a removal application but, in that case, there was discussion of applicable guidelines, whereas there is no mention of any guidelines in this case. 12 The applicant submits that the removal duty in s 198 of the Act is not absolute and, in particular, that the "as soon as reasonably practicable" requirement must fit within the scheme of the Act as a whole. The applicant cites the reasons of Kenny and Mortimer JJ (again, now Mortimer CJ) in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463 at [115] where their Honours stated: The use of the statutory phrase "as soon as reasonably practicable" in s 198 is to be understood as allowing for the duties in s 198 to remove a person to be performed in a way which accommodates other aspects of the statutory scheme of the Migration Act, and — for that matter — other relevant and non-statutory exercises of executive power, such as inquiries about whether there is a third country which may be willing to accept a person removed from Australia, or negotiations about an assertion of statelessness, or a denial of nationality by a putative receiving state. 13 I do not consider that the effect on the public interest by preventing the removal under s 198 is such as to require the prospective applicant to demonstrate a probability of success in order to obtain the grant of the injunction, as was submitted by the prospective respondent, relying on the comments of Mason ACJ in Castlemaine Tooheys Ltd v State of South Australia (1986) 161 CLR 148 at 154. 14 The compellability of non-statutory executive action is an issue on which there is diverging Federal Court opinion. I consider that, for that reason, there is a prima facie case that should be ventilated before the Court. I consider that the balance of convenience favours granting a short injunction to enable the applicant to commence the judicial review proceeding. First, to preserve the subject matter of the prospective proceeding and, second, due to the potential harm to the applicant if he is removed to Sri Lanka. 15 For those reasons, I will make the orders above granting the injunction. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rofe. Associate: Dated: 30 October 2023