BLS15 v Minister for Immigration & Anor

The applicant, BLS15, sought an interlocutory injunction to restrain the Minister for Immigration and Anor from removing him from Australia. This application arose in the context of judicial review proceedings concerning a decision of the former Refugee Review Tribunal (RRT) that refused BLS15 a Protection (Class XA) visa. The judicial review application was filed out of time, and BLS15 also sought an extension of time to file this substantive application. The matter came before Lucev J in the Federal Court of Australia.

The central legal issues before the Court were whether BLS15 had established a "serious issue to be tried" in his application for judicial review, and if so, whether the balance of convenience favoured granting the interlocutory injunction. Specifically, the Court was required to consider whether the RRT had failed to consider the complementary protection regime in its decision, and whether this failure constituted a jurisdictional error. The Court also had to determine the factors relevant to an application for an extension of time to file the judicial review application, and whether these factors, when considered alongside the merits of the judicial review claim, supported granting an extension.

Lucev J applied the usual principles governing applications for interlocutory injunctions, which require the applicant to demonstrate a serious question to be tried and that the balance of convenience lies in their favour. His Honour considered the applicant's arguments that the RRT had failed to consider complementary protection, which, if established, would likely constitute a jurisdictional error. The Court weighed the potential prejudice to the applicant if removed from Australia against the prejudice to the respondent if the injunction were granted. The assessment of whether a serious issue was to be tried was intrinsically linked to the prospects of success in the judicial review application and the grounds for seeking an extension of time.

The Court ultimately found that BLS15 had established a serious issue to be tried and that the balance of convenience favoured granting the interlocutory injunction. Consequently, Lucev J ordered that the respondent be restrained from removing BLS15 from Australia pending the final determination of the judicial review application and the application for an extension of time.