Federal Court. Did the balance of convenience strongly favour the grant of an interlocutory injunction in that, although an injunction would cause the respondents inconvenience "in the form of having to retain the applicant in detention at public expense and the need to alter arrangements that have no doubt involved at least some administrative effort", the applicant's ability to remain in Australia and seek protection was at stake?
The Applicant applied to the Federal Court (FCA) for judicial review of a decision of a delegate of the Minister not to refer a request for the waiver of the bar in s 48A through s 48B of the Migration Act 1958 (Cth), so that he could make a protection visa application. He also sought an urgent interlocutory injunction, preventing his removal from Australia until the determination of his judicial review application.
One of the questions to the FCA was whether the balance of convenience favoured the grant of the interlocutory injunction.
Some of the questions to the FCA were as follows:
Question 1: Did the balance of convenience strongly favour the grant of an interlocutory injunction in that, even though an injunction would cause the respondents the inconvenience "in the form of having to retain the applicant in detention at public expense and the need to alter arrangements that have no doubt involved at least some administrative effort", the applicant's ability to remain in Australia and seek protection was at stake?
Question 2: Did the applicant have a prima facie case, in that the delegate's refusal to refer the matter to the Minister seemed contrary to the Ministerial guidelines and could therefore give rise to a finding of legal unreasonableness?
The FCA answered those questions as follows: