Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5

HIGH COURT OF AUSTRALIA

GAGELER CJ,

GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ

MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS & ORS APPELLANTS

AND

MZAPC RESPONDENT

Minister for Immigration and Multicultural Affairs v MZAPC

[2025] HCA 5

Date of Hearing: 13 August & 13 November 2024

Date of Judgment: 5 March 2025

P21/2024

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

P D Herzfeld SC with J G Wherrett for the appellants and on behalf of the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

C L Lenehan SC with A F L Krohn, C J Tran and A R Sapienza for the respondent (instructed by Pinnacle Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Minister for Immigration and Multicultural Affairs v MZAPC

Immigration – Unlawful non-citizens – Where proceeding for declaration that departmental officer exceeded executive power of Commonwealth – Where departmental officer declined to refer to Minister request for exercise of power under s 195A of Migration Act 1958 (Cth) – Where s 198(6) of Migration Act imposed duty on officers to remove unlawful non-citizen as soon as reasonably practicable – Where proceeding did not challenge valid application of s 198(6) to unlawful non-citizen – Whether Federal Court could make interlocutory order restraining officers from removing unlawful non-citizen notwithstanding duty imposed by s 198(6) – Meaning of "reasonably practicable" – Relevance of Tait v The Queen (1962) 108 CLR 620.

Words and phrases – "balance of convenience", "effective exercise of jurisdiction", "executive power", "incidental power", "integrity of court processes", "interlocutory injunction", "interpretative accommodation", "liberty to consider", "non-compellable power", "personal power", "preserve subject matter", "preserve utility of final relief", "prima facie case", "principle of legality", "procedural decision", "reasonably practicable", "remove unlawful non‑citizen", "statutory duty", "statutory power", "statutory process".