Federal Court. In establishing a prima face case for the purpose of an interlocutory injunction, in circumstances where there is a single judge decision against it, does the existence of an appeal from that decision, "and the fact that the High Court ordered its removal, give reason to think that there may be an arguable controversy about the correctness of [that decision]"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Does the fact that a judicial review applicant did not argue before the Tribunal why it had jurisdiction to conduct a review "preclude his claim for a remedy on the ground of jurisdictional error having regard to the fact that the Tribunal declined to exercise jurisdiction"?
Question 2: In establishing a prima face case for the purpose of an interlocutory injunction, in circumstances where there is a single judge decision against it, does the existence of an appeal from that decision, "and the fact that the High Court ordered its removal, give reason to think that there may be an arguable controversy about the correctness of [that decision]"?
Question 3: "In relation to the applicant’s claim that the Tribunal erred in declining jurisdiction, if the applicant is removed from Australia, he will lose the opportunity to have the cancellation of his protection visa revoked while he remains in Australia." That is because the decision under review by the Tribunal was one to cancel a permanent visa whose re-entry facility has expired. In determining the balance of convenience, is this significant because any restoration by the Tribunal of the applicant’s visa would not enable the applicant to return to Australia under that visa, and he would have to apply for another visa which would face obstacles?
The FCA answered those questions as follows: