BMB16 v Minister for Immigration and Border Protection & Anor

This matter concerned an application for an interlocutory injunction brought by the applicant, BMB16, against the Minister for Immigration and Border Protection. The applicant sought to restrain the Minister from removing him from Australia pending the determination of his application for an extension of time to seek special leave to appeal a decision of the Full Court of the Federal Court of Australia. The Minister opposed the application, arguing that the proposed grounds for special leave did not align with the issues in a related proceeding, M174, and that the Full Court's decision was not attended by significant doubt.

The central legal issue before the High Court was whether to grant an interlocutory injunction. This required the Court to consider the prospects of success of the applicant's proposed application for special leave to appeal, the explanation for the delay in filing that application, and the potential impact of the unresolved proceeding M174 on the applicant's case. The applicant's primary ground for special leave concerned the nature of review contemplated by section 473CC of the *Migration Act 1958* (Cth), specifically whether it was a full merits review or limited to the correction of error.

The Court reasoned that while the applicant's explanation for the delay in filing the special leave application was unsatisfactory, the prospects of success of that application were significantly intertwined with the determination of proceeding M174. The Court found that although the precise questions posed in M174 differed in form from those in the applicant's proposed special leave application, the core issue regarding the nature of review under section 473CC was likely to be authoritatively determined in M174. Given this real likelihood, the Court considered it inappropriate to refuse the interlocutory injunction solely on the basis of the delay or the perceived lack of merit in the applicant's case at that stage.

Consequently, the Court granted the interlocutory injunction, preventing the Minister from removing the applicant from Australia until the determination of the applicant's application for an extension of time to seek special leave to appeal, or until further order. The costs of the application were reserved. The Court also noted that the parties could apply to discharge or vary the injunction depending on the outcome of proceeding M174.