AFF20 v Minister for Home Affairs

The case of AFF20 v Minister for Home Affairs involves an application by an unlawful non-citizen, AFF20, seeking an interlocutory order to restrain the Minister for Home Affairs from detaining him in immigration detention pending the substantive hearing of his judicial review application, as well as a mandatory injunction for his immediate release. The application was heard by Gilmour J, who summarily dismissed the application. The legal issues before the Court were whether the Court had the power to grant the relief sought by the applicant and, if so, whether the relief should be granted. The Court was required to consider the relevant provisions of the Migration Act 1958 (Cth), including sections 196 and 476A.

The Court found that s 196(4) of the Migration Act precluded the Court from granting the relief sought by the applicant. The Court noted that the detention of the applicant was pursuant to the cancellation of his visa under s 501 of the Migration Act, and that s 196(4) provided that detention is to continue unless a court finally determines that the detention is unlawful or that the person detained is not an unlawful non-citizen. The Court also considered s 476A, which limits the jurisdiction of the Federal Court in relation to migration decisions, and found that it did not confer the power to grant the relief sought by the applicant. The Court concluded that the Full Court decision in Ongel v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 239, which held that the Court did not have the power to grant the relief sought, remained good law.

The Court dismissed the interlocutory application summarily, and ordered that the applicant pay the respondent's costs of the interlocutory application, as agreed or taxed. The Court noted that the applicant's affidavit should be withdrawn and replaced with an affidavit that uses the applicant's name as a pseudonym and not his actual name.