The existence of a legal or equitable right
36 MZAPC contends that the Court's processes will be frustrated if he is removed to India because his life will be in peril if he returns, thereby undermining the integrity of the process once set in motion: CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; 189 CLR 345 at 391. He relies on the decision in Tait v The Queen; Scott v Chief Secretary [1962] HCA 57; 108 CLR 620, in which the High Court made an order staying the execution of Mr Tait pending disposal of his applications for special leave and of any appeal to the High Court. In Tait, the lawfulness of the execution was in issue. There was therefore a substantive connection between the interlocutory relief sought and the controversy between the parties. Similarly, as was pointed out by Mortimer J (as the Chief Justice then was) in CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [80], in the context of the interlocutory relief sought in relation to transfers from Nauru (see, for example, FRM17 v Minister for Home Affairs [2019] FCAFC 148; 271 FCR 254):
… interlocutory relief was … appropriate to preserve, or avoid further risks to, the health (and sometimes the lives) of the individuals who sought to bring proceedings where the cause of action was an allegation of negligence in relation to their physical health on Nauru. The very state said to have been neglected by the respondents was said to be at further risk without interlocutory relief.
37 Those cases are not analogous with the present. Whilst the Court accepts MZAPC holds genuine fears for his safety, that is not a circumstance alleged to have been created by the Minister (cf FRM17), nor is the validity of his removal pursuant to s 198(6) challenged (cf Tait). It has been determined that he is not entitled to a protection visa.
38 The primary judge approached the injunction in this case on the same basis as that described in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1; namely, whether failure to grant the injunction, despite the undoubted duty to remove the applicant, would frustrate the Court's processes: J[16], [52]. The primary judge held, when weighing the balance of convenience, that granting the injunction "is the course that carries the lower risk of injustice" because "here, the countervailing and greater risk of injustice is that of frustrating the Court's supervisory jurisdiction that entails ensuring that the exercise of executive power takes place within the legislative limits of that power": J[75].
39 In Patrick Stevedores at [35], Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ said:
The powers of the Federal Court under s 23 of its Act are powers "to make orders of such kinds, including interlocutory orders, as it 'thinks appropriate'", as Deane J noted in Jackson v Sterling Industries Ltd. He added:
"Wide though that power is, it is subject to both jurisdictional and other limits. It exists only 'in relation to matters' in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to the making of the 'kinds' of order, whether final or interlocutory, which are capable of properly being seen as 'appropriate' to be made by the Federal Court in the exercise of its jurisdiction."
One limitation on the powers of the Federal Court to grant interlocutory injunctions is that those powers must be exercised for the purpose for which they are conferred. In a later passage of the judgment of Deane J in Jackson v Sterling Industries Ltd, his Honour said a power to prevent the abuse or frustration of a court's process should be accepted "as an established part of the armoury of a court of law and equity" and that "the power to grant such relief in relation to a matter in which the Federal Court has jurisdiction is comprehended by the express grant to that Court by s 23 of the Federal Court of Australia Act". But, his Honour observed, orders must be framed "so as to come within the limits set by the purpose which [the order] can properly be intended to serve". The Mareva injunction is the paradigm example of an order to prevent the frustration of a court's process, but other examples may be found. The moulding of an interlocutory injunction must depend upon the circumstances of each case. As Brennan J observed in Jackson v Sterling Industries Ltd:
"A judicial power to make an interlocutory order in the nature of a Mareva injunction may be exercised according to the exigencies of the case and, the schemes which a debtor may devise for divesting himself of assets being legion, novelty of form is no objection to the validity of such an order."
The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked. The Federal Court had jurisdiction to make interlocutory orders to prevent frustration of its process in the present proceeding.
(Footnotes omitted. Emphasis added.)
40 The circumstances of that case are very different from those currently being considered. In Patrick Stevedores, the facts underpinning the conduct sought to be restrained had not been determined and remained subject to trial and the exercise of the power to make final orders. The frustration of the Court's process in that context, had the injunction not been granted, was obvious.
41 It was accepted that the Court has power in public law cases to grant an interlocutory injunction to restrain the performance of a statutory duty to preserve the status quo and to protect the integrity of its processes: Simsek v MacPhee (Minister for Immigration and Ethnic Affairs) (1982) 148 CLR 636 at 641. In Simsek, the applicant applied for an interlocutory injunction to restrain his deportation pending the determination of his refugee status. Stephen J said, at 641:
If the power of deportation which Parliament has given to the Minister is to be interfered with in a case such as the present, where the applicant neither denies that he was a prohibited immigrant nor contests the validity of the making of the deportation order itself, the applicant must in my view first make out a prima facie case for injunctive relief in accordance with the principles referred to in Beecham Group Ltd v Bristol Laboratories Pty Ltd.
42 The Minister contends that, rather than preserving the status quo pending the resolution of a substantive cause of action challenging the basis for the duty to remove (which could undoubtedly ground injunctive relief), the injunction directs the Commonwealth not to comply with a duty to remove that has crystallised. The Minister relies on a passage in The Attorney-General of the Corporation of Tamworth v Birmingham, Tame and Rea District Drainage Board [1912] AC 788 at 795, in which the Lord Chancellor stated that "[a] Court of law has no power to grant a dispensation from obedience to an Act of Parliament".
43 MZAPC challenges the Minister's contention on the basis that the injunction does not compel an unlawful act because, for so long as the injunction is in place, is it is not "reasonably practicable" for him to be removed, and so the associated duty has not yet crystallised.
44 MZAPC has not sought to impugn the underlying basis for his removal from Australia pursuant to s 198(6). Nor could he. The command is clear - an officer must remove as soon as reasonably practicable an unlawful non-citizen. There is no dispute that MZAPC is an unlawful non-citizen. There is also no dispute that MZAPC is a detainee (s 198(6)(a)), nor that he made a valid application for a substantive visa (see his application for a protection visa on 21 January 2014) which can be granted when an applicant is in the migration zone: Migration Regulations, Sch 1 item 1403(3)(b); Migration Act s 198(6)(b). Further, there is no dispute that the grant of the visa has been refused and that the application has been finally determined (s 198(6)(c)), MZAPC having exhausted all avenues of appeal, including to the High Court of Australia. The Tribunal found that he did not face a real chance of persecution in the reasonably foreseeable future and, consequently, was not entitled to a protection visa.
45 MZAPC has not made another valid application for a substantive visa (being one that is not a bridging visa, a criminal justice visa, or an enforcement visa: see Migration Act s 5) that can be granted when the applicant is in the migration zone: s 198(6)(d). "Requests" for more favourable decisions under ss 351 or 417 of the Migration Act, or for the Minister to exercise his power under ss 195A or 48B are not "applications for a substantive visa". So much is made clear by the requirements for a valid visa application specified in s 46 of the Migration Act.
46 MZAPC did not challenge the construction of s 198(6) before the primary judge. The existence of a pending request cannot, on a proper construction of s 198(6) within the scheme of the Migration Act, postpone the duty to remove. The consequence of the grant of an injunction would be to "interrupt and override the course envisaged and required by the legislative scheme": CPK20 at [80]. This is the risk of injustice to the repository of public power identified by Mortimer J (as the Chief Justice then was) in CPK20 at [15], in the context of an application for an injunction to prevent removal pending a request for ministerial intervention under s 351:
the 'risk of injustice' to the repository of a public power … may … relate to the frustration of legislative intention within a legislative scheme, or the interruption of the course otherwise contemplated by law.
47 Her Honour went on to say, at [80]:
Any grant of interlocutory relief by the Court will interrupt and override the course envisaged, and required, by the legislative scheme in the Migration Act. There must be a reasonable justification for the Court's orders to interrupt the course which Parliament intends to occur, once a person has exhausted her or his avenues to secure a visa, including review and appeal. The purpose of the grant of interlocutory relief is to ensure that the Court can, at trial, do justice between the parties in the matter which is before it. As a Full Court of this Court explained, the nature and extent of interlocutory orders which might be made under s 23 of the Federal Court of Australia Act 1976 (Cth) may depend on what the controversy is between the parties: see Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] FCA 41; 34 FCR 169. This is not an application of that kind, because the interlocutory relief sought has no substantive connection with the controversy between the parties in the proceeding, nor with the final relief sought.
(Emphasis added.)
48 A request that the Minister exercise a personal and non-compellable power does not give rise to some form of requirement for the Minister to indicate whether or not the request was to be considered, nor does it require the mandatory terms of s 198(6) to be qualified by a further condition: MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 877 at [27], [30] per Colvin J. As his Honour said, at [40], it is a "false premise that any request for the exercise of the personal non-compellable powers may be 'pending'". His Honour continued, at [40]:
It seeks to give statutory significance to a request that the power be exercised in circumstances where the nature of the power is such that no person other than the Minister can make a procedural decision as to whether to consider exercising the power. An obligation to make a procedural decision as to whether to consider the exercise of the power cannot arise from the making of a request any more than it can arise from the formation of a judgment by departmental officers.
49 Further, even if the requests have not been brought to his attention because he has impermissibly fettered his power by the 2016 Ministerial Guidelines, by the terms of the statute, the Minister was under no duty to even (see, for example, s 351(7)):
consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
(Emphasis added.)
50 In this respect, the circumstances of the present case are analogous to those in Simsek, in respect of which Stephen J refused relief. In that case, the applicant's asserted material interest was an expectation that his application should be treated by the Minister, acting through the Committee, in a manner consistent with the Convention Relating to the Status of Refugees (the Geneva Convention of 28 July 1951) and the associated Protocol Relating to the Status of Refugees (the 1967 Protocol) which were not at that time part of Australia's domestic law. Consequently, Stephen J held that even if the applicant had a right arising under the Convention, it would not have been enforceable in the High Court. Having no justiciable right, Stephen J held, at 644:
… the only possible legitimate expectation which might be said to have arisen was not that he would be granted refugee status but that the Committee would consider his application in conformity with its own established procedures and this it is now doing.
51 Similarly, in the present case, the only right that might be said to have arisen is not the right to have the Minister consider his requests, but only the right to seek declarations as to the lawfulness of the decisions made in purported compliance with the 2016 Ministerial Guidelines, and a writ of certiorari to quash those decisions. Contrary to the relief sought in his originating application, MZAPC does not have a right to a writ of mandamus "to require the Second Respondent to cause the requests to be referred to the Minister so that they can be considered and determined according to law" (emphasis added). That is because the Minister has no duty to consider any such requests nor to determine them. In circumstances where MZAPC does not have a right to have any request considered by the Minister, there can be no duty that gives rise to a sufficient material interest to ground an injunction.
52 Courts of equity have long held that an injunction will be refused where it is impossible or futile: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116; 154 FCR 425. It is both impossible and futile to enjoin the Commonwealth parties from removing MZAPC - the Court's processes cannot be invoked as a circuitous means of compelling the Minister to consider and determine requests when he has no duty to do so.
53 Further, the consequence of the grant of the interlocutory injunction is that MZAPC remains in immigration detention pending the conclusion of the substantive proceedings, at which point he concedes it will be "reasonably practicable" to remove him. Accordingly, and as has already been observed, the consequence of a final injunction would likely be unlawful indefinite detention.