Can FCA restrain removal despite s 198(6)?

Some of the questions to the High Court (HCA) were as follows:

Question 1: Can it be said that "no court has an unlimited power to grant an interlocutory injunction and an order "must be framed so as to come within the limits set by the purpose which [the order] can properly be intended to serve""?

Question 2: Is the primary purpose of an interlocutory injunction "to keep matters in statu quo until the rights of the parties can be determined at the hearing of the suit"?

Question 3: Is the condition precedent for the grant of an interlocutory injunction that "a plaintiff seeking an interlocutory injunction must be able to show sufficient colour of right to the final relief, in aid of which interlocutory relief is sought"?

Question 4: If the answer to Question 3 is 'yes', is the usual description of the sufficiency of that colour of right the establishment of a serious question to be tried or a prima facie case?

Question 5: Can it be said that "the power of a court to make an interlocutory order, including to grant an interlocutory injunction, is confined to an order (albeit on an interim basis) to the same effect as the final order sought"?

Question 6: In a proceeding for a declaration that a departmental officer had exceeded the executive power of the Commonwealth in declining to refer to the Minister under s 195A of the Migration Act 1958 (Cth), can the Federal Court "make an interlocutory order restraining officers from removing the unlawful non‑citizen, notwithstanding the duty imposed on officers by s 198(6) to remove the unlawful non-citizen as soon as reasonably practicable, where the proceeding does not challenge the valid application of s 198(6) to the unlawful non-citizen?"

Question 7: If the answer to Question 6 is 'yes', is this because the Federal Court has power to "protect the integrity of its own processes by ensuring its capacity to effectively exercise its jurisdiction invoked in a proceeding pending before it"?

Question 8: Was the the finding by the primary judge that if the respondent were removed from Australia there was a "very real prospect" of the respondent being unable to continue to prosecute the proceeding "also an independent factual foundation sufficient to enable the primary judge to grant the interlocutory injunction"?

Question 9: Will the interlocutory injunction have had no utility because the final orders sought on judicial review did not include a final injunction?

Question 10: Does the term "reasonably practicable" in s 198(6) involve the question of whether the removal is possible from the officer's viewpoint?

Question 11: If the answer to Question 10 is 'yes', does this mean that the concept of "reasonable practicability" is confined to "physical possibility"?

Question 12: Do the High Court, Federal Court and Federal Circuit and Family Court "each have power to grant an interlocutory injunction to make orders to protect the integrity of their own processes by ensuring their capacity to effectively exercise their jurisdiction in a proceeding pending before them, including orders to preserve the subject-matter of the proceeding and to prevent the determination of that proceeding being frustrated"?

Question 13: Does the grant of the interlocutory injunction to prevent the removal of the respondent pending final determination of the proceeding involve detention of the respondent within the sole control of the Executive and of indeterminate duration?

Question 14: If a court finds that the balance of convenience strongly favours an order restraining removal from Australia, does the prima facie need to be particularly strong?

Question 15: Was it reasonably practicable to remove the respondent while a court was considering a reasonable argument that the Minister had unlawfully been impeded by the actions of members of the executive from his liberty to consider the respondent's request for the Minister to exercise the personal non-compellable power in s 195A?

The HCA answered those questions as follows: