Ex parte

This matter concerned an application by Seniet Abebe for an interlocutory injunction to restrain her immediate removal from Australia. Ms. Abebe claimed refugee status, asserting a well-founded fear of persecution due to alleged repeated rape while in official custody in her country of former habitual residence. The application was brought before Kirby J of the High Court of Australia.

The central legal issues before the Court were whether the Refugee Review Tribunal had adequately dealt with Ms. Abebe's allegation of persecution by rape, and whether an interlocutory injunction should be granted to preserve the utility of a potential application to the High Court for constitutional writs under section 75(v) of the Constitution. This was particularly relevant given the exclusion of judicial review in the Federal Court by section 476 of the Migration Act 1958 (Cth). The Court also considered the arguability of Ms. Abebe's contentions and the balance of convenience.

Kirby J reasoned that while the ultimate error of the Tribunal could not be determined on the available material, there was sufficient evidence to warrant a short intervention by the Court. His Honour acknowledged the serious nature of rape as an instrument of state policy and its potential to ground a claim for refugee status under Australian law and international conventions. The Court found that Ms. Abebe should have the opportunity to present further evidence and argument to support her claim. The balance of convenience favoured granting a temporary injunction, as the additional period of detention was not substantial given the applicant had already been detained for nearly nine months.

Consequently, the Court ordered that the First Respondent, his servants and agents, be restrained from removing the Prosecutor from Australia until Wednesday, 28 January 1998, at 4 pm, or until further order. This injunction was granted to allow for the examination of the issues raised and the presentation of additional material before a final determination could be made.