AUR23 v Commonwealth of Australia

The matter before the Court involved an application for an interlocutory injunction by AUR23 against the Commonwealth of Australia to prevent the applicant's removal from Australia. The applicant had made a request for the Minister to exercise powers under sections 46A and 48B of the Migration Act 1958 (Cth) but this request had not been referred to the Minister. The application was based on the applicant's argument that the Minister had a non-statutory compellable duty to refer the request to the Minister and that the balance of convenience weighed in favour of the grant of an injunction.

The central legal issues the Court had to decide were whether there was a compellable duty on the Minister to refer the applicant's request to the Minister and if so, whether the balance of convenience weighed in favour of the grant of an injunction. The Court noted that if such a duty existed and could be enforced by mandamus, the applicant's removal from Australia would negate the right and duty to refer the request to the Minister. The Court also considered that the applicant's removal would have serious consequences which weighed heavily in favour of granting the injunction.

The Court found that the balance of convenience weighed in favour of the grant of an injunction, allowing the applicant to file an application for judicial review. The Court granted the injunction until 4.00 pm on 20 November 2023, or if an originating application was filed on or before that date, subject to further order of the Court. The Court also reserved costs and noted that entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.