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

Federal Court of Australia

HBMH v Commonwealth of Australia (No 2) [2024] FCA 8 File number(s): WAD 314 of 2023

Judgment of: FEUTRILL J

Date of judgment: 11 January 2024

Catchwords: MIGRATION – application for interlocutory injunction to prevent the applicant's removal from Australia – where applicant made a request for the Minister to exercise powers under s 195A and s 197AB of the Migration Act 1958 (Cth) that was referred to the Minister and the Minister decided not to consider the exercise of powers – whether request referred to Minister according to law – whether Minister's decision not to consider exercise of powers according to law – where Minister decided to consider individual detainees in cohorts through departmental group intervention submissions under s 195A and s 197AB – where applicant included in departmental submission – whether Minister made a procedural decision to consider the exercise of power under s 195A or s 197AB with respect to the applicant – where applicant has medical conditions affecting his fitness to travel – whether 'reasonable practicability' for the purposes of s 198 is a jurisdictional fact – whether decision that it is reasonably practicable to remove applicant legally unreasonable –whether serious question to be tried – whether balance of convenience weighs in favour of injunction

Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 153 Federal Court of Australia Act 1976 (Cth) s 32AD(1) Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 48B, 189, 195A, 196(1), 197AB, 198, 198(2B), 417, 476, 500(1)(ba), 501(3A), 501CA(4),

Cases cited: AOZ23 v Commonwealth of Australia [2023] FCA 1312 ASU22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1326 AUR23 v Commonwealth of Australia [2023] FCA 1394 AUR23 v Commonwealth of Australia (No 2) [2023] FCA 1440 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368; (2006) 155 FCR 465 BJM16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 995 Bullock v The Federated Furnishing Trades Society of Australasia [1985] FCA 48; (1985) 5 FCR 464 BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213; (2022) 288 FCR 23 Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; (2023) 408 ALR 381 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 HBMH v Commonwealth of Australia [2023] FCA 1527 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 877 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134 [2003] HCA 1; (2003) 211 CLR 441 Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu [2000] HCA 23; (2000) 171 ALR 341 Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 Tait v The Queen [1962] HCA 57; (1962) 108 CLR 620 WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463