Federal Court. The Applicant, an unauthorised maritime arrival, made a request for Ministerial intervention under s 46A(2) of the Migration Act 1958 (Cth). Before determining that request, the Applicant was told that he would be removed from Australia. In an application for interlocutory injunction to restrain his removal, did the balance of convenience favour the respondents because removal would frustrate the duty under s 198?
The prospective Applicant is an unauthorised maritime arrival. As such, s 46A(1) of the Migration Act 1958 (Cth) prevented him from making a visa application, unless s 46A(2) applied:
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.
The Applicant submitted a Request for ministerial intervention under s 46A(2) of the Act. Before the Applicant received a response to the Request, he was informed that he was being removed from Australia.
As a result, the Applicant made to the Federal Court (FCA) an urgent application, seeking the following orders:
(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.
The FCA answered that question as follows: