HBMH v Commonwealth of Australia

In the matter of HBMH v Commonwealth of Australia, the applicant, a 72-year-old British citizen who has lived in Australia since he was nine years old, sought an interlocutory injunction to prevent his removal from Australia. The applicant's visa had been cancelled due to criminal convictions, and despite a request to the Minister for Immigration to exercise discretionary powers to grant him a visa, the Minister had not yet made a decision on the matter. The application was made under rule 7.01 of the Federal Court Rules 2011, which allows for urgent applications before the start of a proceeding. The primary legal issue before the court was whether the applicant was entitled to an interlocutory injunction to prevent his removal while the Minister considered the request for a visa.

The court considered the nature of the power under s 195A of the Migration Act 1958 (Cth), which is personal to the Minister, non-delegable, and non-compellable. The court recognised that while the Minister had not yet made a decision on the request, the applicant's removal would effectively prevent the Minister from considering the request. The court found that the applicant had made out a prima facie case for an interlocutory injunction, as the Minister's failure to consider the request would result in a significant injustice to the applicant. The court also considered the public interest in preventing the removal of a person who has lived in Australia for most of their life and who has made a request for a visa.

The court granted the injunction, restraining the respondents from removing the applicant from Australia until 5 pm AWST on 22 December 2023. The court noted that the injunction was necessary to prevent significant injustice to the applicant and to allow the Minister to consider the request for a visa. The court reserved costs, indicating that they would be considered at a later date.

In summary, the court granted an interlocutory injunction to prevent the applicant's removal from Australia while the Minister considered a request for a visa. The court found that the applicant had made out a prima facie case for the injunction, as the Minister's failure to consider the request would result in a significant injustice to the applicant. The court restrained the respondents from removing the applicant from Australia until 5 pm AWST on 22 December 2023 and reserved costs.