AUR23 v Commonwealth of Australia (No 2) [2023] FCA 1440

Federal Court of Australia

AUR23 v Commonwealth of Australia (No 2) [2023] FCA 1440 File number(s): VID 932 of 2023

Judgment of: WHEELAHAN J

Date of judgment: 21 November 2023

Catchwords: MIGRATION — where previous general duty judge granted an interim injunction prior to the commencement of a proceeding, to restrain the deportation of the (now) applicant, which was to continue indefinitely subject to further order if an originating application filed – where the applicant filed an originating application seeking to compel the Secretary of the Department to bring before the Minister a request for Ministerial intervention under ss 46A and 48B of the Migration Act 1958 (Cth) – where respondents filed an interlocutory application seeking the discharge of the injunction on the basis that the request had been communicated to the office of the Minister – where, after the making of that interlocutory application, the Minister refused to intervene in exercise of the ss 46A and 48B powers – where the executive intended to remove the applicant from the country on 21 November 2023, subject to the injunction being discharged – where the applicant sought leave to amend his originating application to challenge the Minister's decision not to intervene on grounds of apprehended bias, irrelevant considerations, and improper purpose or, alternatively, that the Departmental officer's referral of the applicant's request to the Minister was ineffective because it resulted in a decision affected by jurisdictional error – where granting the respondents' interlocutory application would have the effect of eliminating the subject-matter of the claim on a summary basis and with limited argument – respondents' interlocutory application dismissed – leave to amend the applicant's originating application granted