Federal Court. Is there a serious question to be tried, namely whether the Secretary is under a duty to bring the applicant’s request for ministerial intervention under s 48B of the Migration Act 1958 (Cth) to the Minister’s attention? Can it be said that, although any potential harm to the applicant if he is removed is not a reason for considering that the duty in s 198(6) to remove him does not exist, harm if removed is relevant to the balance of convenience?
The Federal Court (FCA) said as follows, in relation to the Applicant's interlocutory application to restrain the Minister from removing him from Australia:
6 There is evidence that, as at the time of the hearing, the most recent s 48B request has not been referred to the Minister or the Assistant Minister. No decision has been made by the Minister or the Assistant Minister as to whether they wish to consider exercising the powers under s 48B. No indication has been given if the Minister or Assistant Minister will make such a decision and the Minister or Assistant Minister has given no indication if they will make a decision to exercise the powers under s 48B of the Act.
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13 Insofar as the applicant seeks the issue of a writ of mandamus and final injunctive relief, the applicant contends that the Secretary is under a duty to bring the applicant’s request for ministerial intervention under s 48B to the Minister’s attention. Further, in the meantime, it is not ‘reasonably practicable’ to remove the applicant for the purposes of s 198(6), at least, until the compellable non-statutory duty on the part of the Secretary to refer his request to the Minister has been exercised and, perhaps, the Minister has had some opportunity to consider the referral. The applicant further contends that his claim for final injunctive relief would be rendered nugatory if he were removed from Australia before final determination of his originating application. In substance, the applicant promotes his case by the same path of reasoning to which Jackson J referred in HBMH v Commonwealth [2023] FCA 1527; 302 FCR 146 at [11] (with all necessary amendments to make his Honour’s description of the path of reasoning applicable to s 48B, rather than s 195A of the Act and references to s 198(6), rather than s 198(2B) of the Act).
Some of the questions to the FCA were as follows:
Question 1: Is there a serious question to be tried, namely whether the Secretary is under a duty to bring the applicant’s request for ministerial intervention under s 48B of the Migration Act 1958 (Cth) to the Minister’s attention?
Question 2: In considering the balance of convenience, Colvin and Jackson JJ said in Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC [2024] FCAFC 34; 302 FCR 159 that the Court must have due regard to the statutory duty in s 198 and should require a strong case or serious consequences or both to justify relief. Is MZAPC distinguishable, on the basis that MZAPC accepted that there was an existing and extant duty to remove him from Australia under s 198, whereas here "the question as to whether the duty under s 198(6) to remove the applicant (as soon as reasonably practicable) exists and is extant or has been deferred pending referral of the applicant’s s 48B request to the Minister is one of the matters in question in the proceedings for which there is a serious question to be tried"?
Question 3: Can it be said that, although any potential harm to the applicant if he is removed to Zimbabwe is not a reason for considering that the duty in s 198(6) to remove him does not exist, harm if removed is relevant to the balance of convenience?
Question 4: If the Applicant were removed from Australia to Zimbabwe, would it render his application for mandamus and injunction nugatory?
Question 5: If the answer to Question 4 is 'yes', would that consequence, on any view, be a serious consequence?
The FCA answered those questions as follows: