Why the interlocutory injunction was granted
28 There is no need to rehearse the well-established principles on which interlocutory injunctions may be granted. As is about to be described, the submissions of counsel for both parties helpfully distilled the issue for determination down to one question.
29 The applicant submitted that the balance of convenience in this case strongly favoured him and the respondents did not take issue with that for the purposes of the urgent application. I accept the submission; to return a 72-year-old man with apparent health issues to a country in which he has not lived since he was 9 years old will drastically affect his life, and no apparent countervailing interest of the respondents outweighs that.
30 As to whether there is a serious question to be tried, the argument outlined at [11] above has recently found sufficient favour with two other judges of this Court to result in interlocutory injunctions: AOZ23 v Commonwealth of Australia [2023] FCA 1312 (Rofe J); AUR23 v Commonwealth of Australia [2023] FCA 1394 (Hespe J). In addition, counsel for the respondents properly conceded that in light of Charlesworth J's reasons in Davis FCAFC, the applicant has a reasonably arguable case for mandamus to compel the exercise of the alleged duty to bring the s 195A request to the Minister's attention.
31 When asked why, then, an injunction should not issue to preserve the applicant's claimed right to mandamus, counsel for the respondents relied on three other judgments of this Court. Those, he submitted, meant that it was not reasonably arguable, as a matter of construction of s 198(2B), that the duty of the Secretary to remove the applicant from Australia had not arisen. That being so, an injunction should not issue because it would, in effect, be a command to the Secretary to disobey his statutory duty to remove the applicant from Australia. The three decisions on which the respondents relied were: MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 877 (Colvin J); BJM16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 995 (Rares J); and ASU22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1326 (Wigney J). It is not necessary to refer to that last decision further as in it, Wigney J relevantly simply relied on BJM16.
32 The judges in each of AOZ23 and AUR23 did have MZAPC and BJM16 referred to them, but did not consider that the argument now relied on was ruled out. However, counsel for the respondents here submitted that neither Rofe J nor Hespe J dealt in any detail with the true effect of the construction of s 198 considered in MZAPC and BJM16. It was therefore appropriate for me to consider the latter cases in a little more detail.
33 In MZAPC, the applicant submitted that it would be unlawful for him to be removed from Australia while he had 'pending' requests for the favourable exercise of the Minister's powers under s 48B, s 195A, s 351 and s 417 of the Migration Act. Relying on Davis HCA, Colvin J held (at [9]-[11]) that these powers were only exercisable by the Minister personally and could not be delegated, and that the Minister could not be compelled to consider exercising them. His Honour further held that the Minister could not be compelled even to decide to consider whether to exercise them, that is, could not be compelled to make the procedural decision. It followed that there could be no obligation on the Minister to do something in respect of the request within a reasonable time. It was therefore not possible to determine whether, and if so when, a request made by a person such as MZAPC may be attended to by the Minister.
34 Colvin J held that these aspects of the powers under s 195A and similar provisions were fatal to MZAPC's application to the FCFCOA for injunctive relief (at [12]). MZAPC sought to support that application (and thus obtain leave to appeal from the FCFCOA's decision) on two bases (at [25]-[27]). First, it was said that on the proper construction of s 198, it would not be 'reasonably practicable' to remove a person while a request for exercise of the relevant powers was 'pending'. Second, it was submitted that in order to read s 198 and the provisions conferring powers on the Minister like s 195A harmoniously with each other, s 198 should be read so that it does not require a person who has made a request for the exercise of one or more of those powers to be removed until it is clear whether or not the Minister was going to consider the request. Otherwise, the officer who decides to remove the applicant from Australia (and does so) will thereby pre-empt the Minister's personal non-delegable power to decide whether to consider the request, and so interfere with the Minister's personal non-delegable power.
35 Colvin J disposed of these arguments in the following way (at [30]):
I am not satisfied that the decision of the primary judge was attended with sufficient doubt to justify leave to appeal. The principal difficulty with the characterisation of the legal contentions advanced by the applicant as being sufficiently arguable to support a grant of leave to appeal is that they seek to give some legal consequence to the fact that the applicant has made requests for the Minister to consider the exercise of the personal powers. The error lies in the notion that a request might be 'pending' in some sense. The description of a request as 'pending' ascribes to the request some characteristic that requires a decision or determination at some future time such that the request awaits some subsequent event that is to occur. However, as has been explained, the nature of the relevant powers is such that they are both personal and non-compellable. It would alter their character if the making of a request could give rise to some form of requirement for the Minister to indicate whether or not the request was to be considered.
See also MZAPC at [40].
36 It may be seen then that the arguments before Colvin J in MZAPC, and therefore the manner in which his Honour determined the question before him, were based on the proposition that until the Minister had either determined that he would not consider a request, or had determined that he would consider a request and then rejected the request, the duty to remove under s 198 would not arise. It is that proposition which his Honour rejected, on the ground that since the Minister has no obligation to ever make either a procedural decision or substantive decision, the request could not be considered 'pending' in the sense that it would necessarily be resolved at some later time. It would be consistent with the Migration Act for the Minister never to make either kind of decision under, say, s 195A. In light of that, and in light of the way the arguments were put to Colvin J, it is easy to see why his Honour did not consider it reasonably arguable that s 198 should be read so as to mean that the duty to remove did not arise until the Minister made the decision.
37 The argument that the prospective applicant has put in this case was not put to Colvin J. It is not inconsistent with MZAPC to say that it is reasonably arguable that under s 198, it does not become 'reasonably practicable' for an officer of the Department to remove a person at least until a compellable non-statutory duty on the part of the Secretary to refer a request under s 195A to the Minister has been exercised. For it was the non-compellable aspect of the Minister's powers that Colvin J found to be especially relevant in the question put to him. The Minister might never exercise the powers, and the Migration Act could not reasonably be understood to defer the duty to remove indefinitely: see also MZAPC at [41].
38 The other case on which the respondents principally relied was BJM16. Yet, there too the arguments put to Rares J were materially different to the argument put in this application. In BJM16, the appellant had made a request under s 48B of the Migration Act. Ministerial guidelines about the exercise of that power that were in evidence. They set out principles on which officers of the Department were to determine, in particular, whether the request was likely to engage Australia's protection obligations and so should be referred to the Minister personally (see [11]). Relevantly, the injunction sought was to prevent the removal of the appellant from Australia until the Minister made either the procedural decision not to consider exercising the power under s 48B or the substantive decision not to exercise that power (at [25]).
39 The appellant in BJM16 submitted that the duty imposed on an officer under s 198(6) to remove him as soon as reasonably practicable had to be postponed while there was a realistic possibility that the Minister would consider exercising his discretion under s 48B favourably towards the appellant. However, the appellant also submitted, relying on Plaintiff M61/2010E, that the obligation to remove did not arise until the Minister made a decision not to consider the request, by means of the officers of the Department following the guidelines, and so determining that the Minister would not consider the request (at [27]-[28]).
40 Putting this a different way, the submission was that the duty to remove under s 198(6) did not arise until the Minister had made the procedural decision adversely to the appellant, by way of the application (by officers of the Department) of the guidelines to the appellant's case. It was submitted to Rares J that, unless s 198(6) were construed to contain the implication that the duty to remove does not arise until there is no realistic possibility that the Minister will make the procedural decision in the appellant's favour, then the removal of the appellant from Australia would defeat the purpose of conferring the power to make the procedural decision on the Minister personally. So while the factual background was different, the construction argument was similar to that made in MZAPC.
41 After discussion of relevant cases, including MZAPC, Rares J dealt with the appellant's construction as follows:
[44] I reject the appellant's construction. It would be odd that the Parliament had specifically imposed a pre-condition for the duty of an officer in s 198(6)(d) to remove, as soon as practicable, an unlawful non-citizen that he or she had not made a valid application for a substantive visa and where s 197C(1) and (2) prescribe that Australia's non-refoulement obligations are irrelevant to the performance of that duty, but somehow omitted to enact expressly that it was also essential there be no valid, but undetermined, request for the personal exercise of the Minister's non-compellable powers under s 48B and numerous other provisions in the Migration Act analogous to it: [Australian Securities and Investments Commission v DB Management Pty Ltd [2000] HCA 7; (2000) 199 CLR 321] at 338 [34]-[35].
[45] The construction of s 198(6) which the appellant urges would be contrary to the statutory scheme in ss 48A, 48B and 197C. That scheme limits the entitlement of an unlawful non-citizen to make one or more further substantive applications for a protection visa, with the consequence that officers will have the duty under s 198, in appropriate cases, to remove him or her as soon as reasonably practicable, because, as s 197C provides, Australia's non-refoulement obligations are irrelevant to the performance of that duty.
[46] Moreover, the Parliament has made clear in s 48B(6) that the Minister does not have any duty to consider under s 48B(1) whether to exercise the power to lift the bar, whether or not he is requested to do so by the non-citizen, any other person, or in any other circumstances. In this context, if the appellant's argument were right, an officer would be prevented from removing him under s 198(6) for an indefinite period because, ultimately, the Minister may or may not decide to consider whether to exercise his personal power, including after the Department has pursued a process, such as in the Guidelines, to process whether, in accordance with the Minister's instructions, the request should or should not be put before him.
[47] Because the Minister's powers under s 48B and its analogues are both personal and non-compellable, a person seeking their exercise will not be able to seek a writ of mandamus to require the Minister to make a procedural or substantive decision on a request such as one under s 48B(1). Therefore, the unlawful non-citizen could be held indefinitely in immigration detention until the request is determined, notwithstanding the express terms of ss 197C and 198(6) that require the person's removal as soon as reasonably practicable in circumstances where Australia's non-refoulement obligations in respect of the unlawful non-citizen are irrelevant to the performance of that duty.
42 It can be seen that, as in MZAPC, it was important to the outcome in BJM16 that the consequence of the asserted construction of s 198 would be that removal from Australia could be postponed indefinitely by the making of a request under s 195A or similar powers. It was important in that regard that the exercise of the Minister's powers was non-compellable.
43 It seemed arguable to me that the same problem does not arise on the case proposed to be presented by the applicant here. As Kenny and Mortimer JJ noted in WKMZ (at [116]):
the composite statutory phrase in s 198 has two aspects - 'as soon as' and 'reasonably practicable', both of which indicate that the executive is not afforded unlimited time to consider alternative options but rather is to act promptly, and is obliged to act reasonably in the way it considers those alternative options.
44 It is reasonably arguable that to understand s 198 as deferring the duty to remove at least until the Secretary has referred an extant s 195A request to the Minister is not to invite indefinite deferral, in view of the compellable nature of the Secretary's obligation and the implicit requirement for the Secretary to act promptly.
45 I acknowledge that in addition, the respondents here made the same argument that found favour with Rares J at [44]-[45] above (and with Colvin J in MZAPC at [43]-[44]), that it is inconsistent with the prescriptive nature of s 197C to read an implied limitation into s 198 so as to accommodate what might be required to give effect to the powers under s 195A and similar provisions. However that textual indication did not seem to me to be so obviously compelling as to render the construction outlined at [11(4)-(6)] above less than reasonably arguable.
46 The respondents also submitted that Plaintiff M61/2010E and WKMZ and did not go as far as they need to in order to support the applicant's case. In Plaintiff M61/2010E, the steps which the High Court said s 198 must be taken to accommodate, were steps taken by the Minister. Here, no steps by the Minister are in issue, because the s 195A request has not been brought to the Minister's attention. And in WKMZ, it was submitted, there was nothing that suggests that the removal duty under s 198 was qualified by the Minister's non-compellable powers under s 195A or similar provisions. But while those submissions may turn out to be correct, I did not consider that it was possible or appropriate for me to make a firm determination about them in the time permitted by the urgency of the matter: see e.g. OD Transport Pty Ltd v Western Australian Government Railways Commission (1986) 13 FCR 270 at 274 (French J). Full consideration of the context of and reasoning in Plaintiff M61/2010E and WKMZ was not possible in the time available.
47 In addition, it was said from the bar table without objection that the case of AOZ23 is due to be heard by a Full Court exercising original jurisdiction in February 2024. While not determinative, that appeared to me to be an additional reason in favour of exercising the discretion to grant an injunction. If the issues raised are to be determined by a Full Court reasonably soon, it would arguably pre-empt that result (in so far as it may affect the applicant here) to permit his removal from Australia in the meantime.
48 However, it did not necessarily follow from this that the injunction to be granted yesterday should be in force until the Full Court determines the case of AOZ23. Overriding that was the basic consideration that all that was before the Court was an urgent application before the start of a proceeding, in pursuance of which the applicant has undertaken to commence a substantive proceeding within 14 days of determination of the urgent application. I determined that granting the injunction until 22 December 2023 would provide adequate time for the applicant to commence that proceeding, and for any question of further interim relief to be determined in the context of that proceeding.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.