BTA15 v Minister for Immigration & Border Protection

The Albanian appellant, BTA15, sought an interlocutory injunction against the Minister for Immigration & Border Protection to prevent his removal from Australia while his appeal against a decision of the Federal Circuit Court of Australia was pending. The appellant had previously sought a Protection (Class XA) visa under the Migration Act 1958 (Cth) on the basis that he faced a real chance of persecution in the reasonably foreseeable future. This claim centred on alleged threats from foreign governments, criminal syndicates, individuals that had previously threatened him, and the Albanian authorities. The appellant's application for the visa, and subsequent review applications, were refused. The Federal Circuit Court also dismissed the appellant's application for judicial review of the refusal. The appellant's interlocutory application was dismissed by the Court, which found that he did not have a prima facie case on appeal.

The Court was required to determine whether the appellant had satisfied the requirements for the grant of an interlocutory injunction under s 23 pending appeal. The requirements are that the applicant must demonstrate a serious case to be tried and that the balance of convenience favours imposition of the restraint. The Court considered the factors relevant to the grant of an interlocutory injunction under s 23 pending appeal, which are similar to those applicable under s 29, O 37 and O 52, but capable of expression in terms of the considerations usually applied to the grant of interlocutory relief. The Court found that the appellant did not satisfy these requirements, as his case had been found wanting at first instance and the appeal was likely to be nugatory if the restraint was not granted. It was also relevant that the Minister would be prejudiced if impeded in the exercise of its judicially vindicated rights.

The Court found that the appellant did not have a prima facie case on appeal, and that the balance of convenience did not favour the imposition of the restraint. The Court noted that the appellant's case had been tried and found wanting at first instance, and that the appeal was likely to be nugatory if the restraint was not granted. The Court also found that the Minister would be prejudiced if impeded in the exercise of its judicially vindicated rights. The Court therefore dismissed the interlocutory application, finding that the appellant had not satisfied the requirements for the grant of an interlocutory injunction under s 23 pending appeal.

The interlocutory application filed by the appellant on 12 April 2017 seeking injunctive relief preventing the Minister from taking action to remove the appellant from Australia was dismissed.