GMS24 v Commonwealth of Australia

1. 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 7 days after this application has been determined.
2. The Prospective Applicant gave the usual undertaking as to costs.
3. The Prospective Applicant has undertaken to file and serve a sworn affidavit of Sally Szmerling substantially in the form handed up in Court on 23 August 2024. THE COURT ORDERS THAT:
4. Until further order, the Prospective Respondents, including by their servants and agents, be restrained from removing the Prospective Applicant from Australia.
5. A copy of this order be sent to the Prospective Respondent's legal representative by email to madisen.scott@ags.gov.au.
6. Subject to further order, the matter be listed for interlocutory hearing before the Duty Judge at a date and time to be determined in the week commencing 2 September 2024.
7. Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NESKOVCIN J: 1 The prospective applicant made an urgent application which was brought before me, as the Victorian Duty Judge, after Court hours on 23 August 2024. The orders sought by the prospective applicant were as follows: (a) until further order, the prospective respondents, including by their servants and agents, be restrained from removing the prospective applicant from Australia; and (b) if this application is opposed, the respondents pay the applicant's costs. 2 The applicant has undertaken to the Court that he will start a proceeding in relation to the subject matter of this application within 7 days after this application has been determined and has given an undertaking as to costs. 3 For the reasons below, I granted the injunction and made other ancillary orders. 4 The applicant is from Pakistan. He came to Australia as a crew member on a commercial cargo liner. He absconded and is seeking protection. 5 In effect, s 46A(1) of the Migration Act 1958 (Cth) prevents an unauthorised maritime arrival from making a visa application, unless an exception applies. However, s 46A(2) of the Act provides that: If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination. 6 On 7 August 2024, Refugee Legal, on behalf of the applicant, submitted a request for ministerial intervention under s 46A(2) of the Act. 7 On 23 August 2024, the applicant informed Refugee Legal that he had been told that he was being removed from Australia later that day. By that time, Refugee Legal had not received a response to the request. 8 Ms Scott, a solicitor from the Australian Government Solicitor's office representing the respondents, confirmed that the applicant was scheduled to board a flight departing Australia within two hours or so of the time of the hearing. 9 The principles in relation to the grant of interim injunctive relief are well established. The applicant is required to demonstrate a prima facie case and that the balance of convenience and justice favours the grant of the injunction: Samsung Electronics Company Limited v Apple Incorporated (2011) 217 FCR 238; [2011] FCAFC 156 at [60]-[67] (Dowsett, Foster and Yates JJ). 10 Counsel for the applicant relied on AOZ23 v Commonwealth of Australia [2023] FCA 1312 in which Justice Rofe discussed conflicting Federal Court authority on the question of the compellability of non-statutory executive action at [10]-[14]. In AOZ23, the applicant relied principally 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; [2021] FCAFC 213 at [259]-[262] that mandamus is available to compel a departmental officer to bring an intervention request to the Minister's attention. Justice Griffiths agreed with her Honour at [87]. Chief Justice Mortimer disagreed at [121]-[122], as did Besanko J at [52]. However, their disagreement was qualified, and Chief Justice Mortimer decided that she did not need to decide that point. Justice Kenny did not address the question. 11 Whilst noting two further Federal Court removal cases, Justice Rofe considered that there was a prima facie case that should be ventilated before the Court and that the balance of convenience favoured a short injunction to enable the applicant to commence a proceeding: AOZ23 at [14]. 12 Ms Scott, on behalf of the respondents, acknowledged that the applicant has a prima facie case, but submitted that the balance of convenience favoured the respondents because removal would frustrate the duty under s 198 of the Act (Removal from Australia of unlawful non - citizens). The respondents also relied on the public interest in the due administration of the Act, referring to CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [14]-[15] (Mortimer J). Ms Scott also referred to the costs of an aborted removal. 13 In response, Counsel for the applicant submitted that the respondents' submission regarding the frustration of the intention of the legislative scheme failed to grapple with other aspects of CPK20. It was submitted that the Chief Justice's observations in CPK20 regarding the evaluation of the risk of injustice were relevant in the present case, where the applicant faces a risk of persecution if he were to be removed to Pakistan. The applicant further submitted that the removal duty in s 198 of the Act is not absolute, referring to Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41 at [35]. In relation to the costs of the aborted removal, Counsel for the applicant said the applicant gave an undertaking as to costs, which is noted in the Court's orders (albeit the reference to the "usual undertaking" is an error). 14 In relation to the cost of the applicant's removal, I note that the removal was to occur just over two weeks after the request was made. 15 The respondents accepted there is a prima facie case. I considered that the balance of convenience favoured the grant of an interim injunction to preserve the subject matter of the prospective proceeding and due to the potential harm to the applicant if he was removed to Pakistan. 16 For those reasons, I made orders granting the injunction and other ancillary orders. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Neskovcin.