AOZ23 v Commonwealth of Australia

AOZ23, an individual, sought an interlocutory injunction to prevent their removal from Australia by the Commonwealth of Australia. The applicant's case was that they had requested the Minister for Immigration, Citizenship and Migrant Services to exercise personal powers under section 48B of the Migration Act 1958 (Cth) to cancel their visa and order their removal. The Minister's delegate had not yet decided whether to refer the request to the Minister, and the applicant was concerned they would be removed before this decision was made. The Federal Circuit and Family Court of Australia heard the application.

The legal issues in the case included whether the court could grant mandamus to compel officers to exercise non-statutory executive power, whether there was a serious question to be tried, and whether the balance of convenience favoured the applicant. The court noted the conflicting authority of the Federal Court on the issue of mandamus and the exercise of non-statutory executive power. The court also considered whether the applicant had established a serious question to be tried and whether the balance of convenience favoured them.

The court found that there was a serious question to be tried and that the balance of convenience favoured the applicant. The court noted that the applicant had made a valid request for the Minister to exercise their personal powers under section 48B of the Migration Act and that the Minister's delegate had not yet decided whether to refer the request to the Minister. The court also noted that the applicant was at risk of being removed from Australia before this decision was made. The court granted the injunction, restraining the prospective respondents from removing the applicant from Australia until 4.00 pm on 15 November 2023. The matter was listed for an interlocutory hearing on that date, and costs were reserved.

The court made an order amending the name of the second prospective respondent to the “Secretary, Department of Home Affairs”. The court also restrained the prospective respondents, including their servants and agents, from removing the applicant from Australia until 4.00 pm on 15 November 2023. The court listed the matter for an interlocutory hearing on that date and reserved costs. The court noted that the applicant had undertaken to start a proceeding in relation to the subject matter of the application within 14 days after the application had been determined.