Federal Court. In Davis, the High Court held that, in the 2016 Ministerial Guidelines issued in relation to section 351 of the Migration Act 1958 (Cth), the factors that the Department was instructed to assess and balance operated as "an approximation of the public interest". Did the 2016 Ministerial instructions issued in relation to s 195A also operate as "an approximation of the public interest"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: In Davis, the High Court held that, in the 2016 Ministerial Guidelines issued in relation to section 351 of the Migration Act 1958 (Cth), the factors that the Department was instructed to assess and balance operated as "an approximation of the public interest". Did the 2016 Ministerial instructions issued in relation to s 195A also operate as "an approximation of the public interest"?
Question 2: Is the power under s 23 of the FCA Act limited to parties to the proceedings and against whom final relief is sought?
Question 3: In general, is it appropriate for a judge to attempt to resolve conflicts of affidavit evidence on an interlocutory application?
Question 4: If the answer to Question 3 is 'no', does this mean that the judge "is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporaneous documents or other statements by the same deponent, or inherently improbable in itself it may be"?
Question 5: For the purposes of determining if there is a serious question to be tried in the context of an application for an injunction to prevent removal from Australia, is there "a bright line to be drawn between an assessment by the Department under the 2016 Ministerial Guidelines initiated by a formal request made by a person and an assessment initiated by the Department upon a review of a person’s circumstances"?
Question 6: If the applicant understood from his discussions with his case manager within the detention centre that the Department was considering whether or not to refer his case to the Minster for the possible exercise of power under s 195A or s 417, could that be regarded constructively as a request made by or on behalf of the applicant?
Question 7: In circumstances where the Department made assessments of the applicant’s circumstances against the 2016 Ministerial Guidelines and ‘decided’ based on those assessments not to refer his case to the Minister for consideration of the exercise of the Minister’s power under s 195A, can it be said that the applicant "failed to establish the factual foundation for his originating process or that the applicant’s claim for, at least, declaratory relief of the kind the High Court ordered in Davis to be ‘weak’"?
Question 8: For the purpose of the question of the balance of convenience in the context of an interlocutory application seeking injunction from removal, may the interests of the administration of justice may require that the jurisdiction of this Court which the applicant has regularly and properly invoked not be frustrated by his removal from Australia?
Question 9: If removal from Australia would practically deprive the applicant of the subject matter of the proceeding (his interest in remaining in Australia), can that be a factor taken into account in a consideration of the balance of convenience, even if the prospect of him being granted a visa as a result of Ministerial intervention be low?
Question 10: If the applicant were removed involuntarily, this could have future effects, for example on any future application for a partner visa. Is that a factor that could be taken into account in a consideration of the balance of convenience, but which "is not of any real weight as it has no real connection with issues raised in the proceedings"?
Question 11: For the purpose of the question of the balance of convenience in the context of an interlocutory application seeking injunction from removal, is the Applicant's fear of returning to his home country and being harmed by loan sharks of significance?
Question 12: For the purpose of the question of the balance of convenience in the context of an interlocutory application seeking injunction from removal, is the Applicant's ongoing medical needs which would not be treated if he were returned to his home country of significance?
Question 13: For the purpose of the question of the balance of convenience in the context of an interlocutory application seeking injunction from removal, is the Applicant's lack of family or social support networks in his home country and likelihood to face economic hardship in that country of significance?
Question 14: In circumstances where an interlocutory injunction "will interrupt and override the course envisaged, and required, by the legislative scheme in the Migration Act" and where 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", in a public law context, is prejudice to the public interest in that sense a factor that weighs against the grant of an interlocutory injunction?
The FCA answered those questions as follows: