BMB16 v Minister for Immigration and Border Protection & Anor

The applicant, BMB16, sought an injunction from the High Court of Australia to restrain the Minister for Immigration and Border Protection from removing him from Australia until 6 February 2018. The application was made on 30 January 2018, with the applicant scheduled for removal the following evening. The applicant conceded that his application for special leave to appeal was deficient and sought the injunction as an indulgence to regularise his position by filing an amended application for special leave and supporting material. This was necessary due to a delay of approximately two months in filing the application for special leave, which was due by 25 November 2017 but filed on 24 January 2018.

The central legal issue before the Court was whether exceptional circumstances existed to justify granting the injunction, specifically whether there was a substantial prospect that the applicant's application for special leave to appeal would be granted. This prospect hinged on whether the Full Court of the Federal Court of Australia erred in finding that the Immigration Assessment Authority had not committed jurisdictional error when reviewing the applicant's protection visa application under Part 7AA of the *Migration Act 1958* (Cth). The applicant argued that the nature of the review under section 473CC of the Act was a point of statutory construction that was difficult and not self-evident, leading to a lack of a clear ratio in the Full Court's decision. Furthermore, the applicant highlighted that this issue was also before the High Court in another matter, *Plaintiff M174/2016 v Minister for Immigration and Border Protection*, and had the potential to affect a large number of cases.

The Court considered the applicant's submission that there were substantial prospects of special leave being granted due to the complex statutory construction of section 473CC, the differing opinions of the Federal Court judges on the meaning of "review," the pendency of a similar issue before the High Court, and the potential impact on numerous other cases. The respondent, the Minister, acknowledged that the balance of convenience favoured the applicant but argued that the material before the Court did not demonstrate a substantial prospect of special leave being granted. The respondent also contended that the explanation for the significant delay in filing the application for special leave was inadequate, despite the applicant's assertion of impecuniosity and inability to secure legal representation. The Court noted the unusual chronology where the application for special leave was filed one day before the applicant was informed of his imminent removal.