AWX16 v Minister for Immigration & Anor

The applicant, AWX16, sought an interlocutory injunction to restrain the Minister for Immigration and Border Protection and the Department of Home Affairs from removing him from Australia. This application was made in the context of his application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) which had refused his application for a Protection (Class XA) visa. The application for judicial review was filed out of time, and the applicant also sought an extension of time to file this substantive application. The matter came before Lucev J of the Federal Court of Australia.

The primary legal issues before the Court were whether the applicant had established a "serious issue to be tried" in his proposed application for judicial review, and if so, whether the balance of convenience favoured the grant of an interlocutory injunction. Central to these questions was whether the applicant had raised a arguable case of jurisdictional error in the AAT's decision to refuse his Protection visa, given he was a citizen of Sri Lanka of Tamil ethnicity. The Court also had to consider the factors relevant to an application for an extension of time to file the judicial review application, particularly in light of the threshold question of whether a serious issue was to be tried.

Lucev J considered the usual principles applicable to interlocutory injunctions, which require the applicant to demonstrate a serious question to be tried and that the balance of convenience favours the grant of the injunction. His Honour examined the grounds of the proposed judicial review application, which alleged jurisdictional error by the AAT. The Court found that the applicant had raised a serious question to be tried regarding the AAT's decision-making process. Consequently, His Honour considered the balance of convenience, weighing the potential prejudice to the applicant if removed from Australia against the potential prejudice to the respondents if the injunction were granted.

His Honour granted the application for an extension of time to file the substantive application for judicial review and granted the interlocutory injunction sought by the applicant, restraining his removal from Australia until further order of the Court.