Injunction even though duty in s 198 must be performed?

The plurality described the case as follows:

59    The Migration Act also confers non-compellable powers upon the Minister personally which, if exercised in respect of a person who must be removed, would have the consequence that s 198 would no longer apply to that person (Powers): see s 48B, s 195A, s 351 and s 417. The Minister has no duty to consider whether to exercise any of the Powers each of which is to be exercised in the public interest as adjudged by the Minister: s 48B(6), s 195A(4), s 351(7) and s 417(7). The Powers arise in the various circumstances specified in the Migration Act.

The nature of the present case

65    A citizen of India (who, in circumstances where his application has been anonymised, we will refer to as the requesting party) is being held in immigration detention. He was notified that it is intended that he be removed from Australia to India. He does not have a pending valid application for a visa. He made requests in June and July 2023 for the Minister to exercise certain of the Powers in his favour (Recent Requests). He also claims to have made other requests in the past (Past Requests). As to each of those Past Requests he says that he was informed by the person who was his case manager at the time that the request was refused by officers of the Minister's department without referring them to the Minister.

Application for relief by the requesting party

66    The requesting party commenced proceedings for relief under s 39B of the Judiciary Act 1903 (Cth). Broadly speaking, the relief he sought was in the following terms:

(1)    declarations that decisions had been made by officers of the Minister's department refusing his requests for the exercise of the Powers by the Minister which decisions exceeded the executive power of the Commonwealth;

(2)    declarations that his requests had not been finalised;

(3)    certiorari to quash the decisions made concerning the requests;

(4)    mandamus to require by the relevant officer to cause the requests to be referred to the Minister;

(5)    prohibition or an injunction to prevent the Minister and the officers of his department from giving effect to or relying upon the decisions made concerning the requests;

(6)    an injunction restraining his removal from Australia “while the requests are pending”;

(7)    alternatively to (6), an injunction restraining his removal from Australia “until the Minister has had a reasonable time to consider the requests if he wishes to do so”;

(8)    costs; and

(9)    such other order as the Court thinks appropriate.

67    In addition, the requesting party sought an interlocutory injunction restraining his removal from Australia pending the determination of his application and any related appeal. He relied upon the reasoning in Davis and asserted that decisions had been made by officers of the Minister's department in respect of requests by him for the favourable exercise of the Powers. It was alleged that those decisions had been made by giving effect to Ministerial guidelines in circumstances where the decisions exceeded executive authority. The Davis-type claim was the sole basis upon which relief was sought.

Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: Does the logic of the reasoning of the High Court in Davis in relation to s 351 of the Migration Act 1958 (Cth) equally apply to other powers which entrust to the Minister a power to be exercised personally by the Minister in the public interest?

Question 2: Did Davis "consider whether the making of a request, of itself, had any consequence for the performance of the duty to remove under s 198"?

Question 3: Did Davis "consider whether an officer of the Minister's department who received a request for the exercise of the Power had a compellable duty to bring the request (or the fact that the request had been made) to the attention of the Minister"?

Question 4: Must interlocutory relief have a substantive connection to the controversy between the parties?

Question 5: In the context of determining whether to grant an interlocutory injunction restraining the Minister from removing a person from Australia while a request for Ministerial intervention is processed, can it be said that, "possibly, the personal nature of the Powers may mean that there is a responsibility on the part of an officer of the Minister's department to ensure that a request, when received, is put before the Minister (or, at least, the fact of the request is made known to the Minister personally)"?

Question 6: In the context of determining whether to grant an interlocutory injunction restraining the Minister from removing a person from Australia while a request for Ministerial intervention is processed, can it be said that "the nature of that responsibility and the significance of its performance for the person making the request may mean that the responsibility is compellable and the person making the request has standing to seek public law relief on that basis"?

Question 7: May the terms of a procedural decision by the Minister as to such matters affect the circumstances in which there is any such responsibility?

Question 8: If the answer to Question 7 is 'yes', but "there was no suggestion that there was any such valid procedural decision by the Minister that affected the way in which the alleged Past Requests had been dealt with by departmental officers", can it nevertheless be said that "the question remains whether a claim of that kind is a sufficient basis to support the grant of an interlocutory injunction"?

Question 9: Was the primary judge "correct to approach the application by the requesting party on the basis that the Court had power to grant interlocutory relief to ensure the effective exercise of the jurisdiction invoked by an applicant for relief or, put another way, to protect the integrity of its processes once put in motion"?

Question 10: Can it be said that "the principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration"?

Question 11: Can it be said that, in arriving at a balance of convenience in a case where it is claimed that a particular statute is beyond power, "it is the duty of the Court to respect, indeed, to defer to, the enactment of the legislature until that enactment is adjudged ultra vires"?

Question 12: Can it be said that the "Court's jurisdiction to preserve the subject matter and the integrity of its own processes so that it may effectively exercise its jurisdiction to adjudicate a controversy and, by its judgment, grant orders that have efficacy is absolutely curtailed by a legislated command [here, s 198 of the Act] the validity of which is not challenged and which it is accepted must be performed in the circumstances then applying"?

Question 13: If the answer to Question 12 is 'yes', is the mere fact that the person seeking interlocutory relief restraining removal is a litigant in the Australian courts enough?

Question 14: If the answer to Question 13 is 'no', does it follow that "the Parliament, by a legislated duty, may deprive the Court of its inherent jurisdiction to ensure that its processes are not frustrated by granting interlocutory relief to preserve the subject matter in dispute and to enable it to perform its function as a court"?

Question 15: If the answer to Question 12 is 'no', can it nevertheless be said that, in the face of a statutory duty under s 198 to remove a person, "the Court must recognise the seriousness of restraining the enforcement of a valid law in considering the balance of convenience (including by requiring a strong case in order to justify the balance supporting the grant of relief)"?

Question 16: If the answer to Question 12 is 'no', does s 474(1)(c) of the Act nevertheless prohibit the grant of an injunction to restrain removal?

Question 17: If the answer to Question 16 is 'yes', can it nevertheless be said that "there may remain a question whether s 474(1) would transgress constitutional limits by seeking to remove from this Court a power that is essential to its character as a Chapter III court"?

Question 18: Can it be said that, "in the usual case, an applicant for leave to appeal must demonstrate both that the relevant decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice would result if leave were refused (assuming the decision to be wrong)"?

The FCAFC answered those questions as follows: