Federal Court. Sections 195A, 351 and s 417 of the Migration Act 1958 (Cth) give the Minister powers which can only be exercised by the Minister personally in the public interest. Is the evaluative task of determining whether it is in the public interest for such powers to be exercised a task which cannot be delegated or undertaken through any form of agency in any respect? Is there a basis to grant injunctive relief preventing the removal of the appellant from Australia while the Minister considered whether to exercise those powers?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Sections 195A, 351 and s 417 of the Migration Act 1958 (Cth) give the Minister powers which can only be exercised by the Minister personally in the public interest. Is the evaluative task of determining whether it is in the public interest for such powers to be exercised a task which cannot be delegated or undertaken through any form of agency in any respect?
Question 2: Did the making of a request to the Minister to exercise the relevant powers in 195A, 351 and s 417 give rise to a compulsion of any kind?
Question 3: If the answer to Question 2 is 'no', is there a basis to grant injunctive relief preventing the removal of the appellant from Australia while the Minister considered whether to exercise those powers?
Question 4: The primary judge refused to grant the appellant an interlocutory injunction. Subject to some exceptions, leave is required to appeal to the FCA from an interlocutory decision. One such exception is where the appeal is from an interlocutory judgment 'affecting the liberty of an individual': s 24(1C)(a) of the Federal Court of Australia Act 1976 (Cth). Can it be said that the exception did not apply here, as the appellant would be detained regardless of the outcome of the substantive proceedings?
The FCA answered those questions as follows: