Lewai v Minister for Immigration and Multicultural Affairs

In the case of Lewai v Minister for Immigration and Multicultural Affairs, the applicant sought interlocutory relief to prevent their removal from Australia pending the outcome of a substantive review of a decision made by the Migration Review Tribunal (MRT). The primary legal issue was whether the Federal Court had the jurisdiction to make orders that would affect the operation of the MRT decision under the Migration Act 1958 (Cth), specifically in relation to the applicant's removal from Australia. The court also considered whether the decision in Madafferi v Minister for Immigration & Multicultural Affairs limited the availability of interlocutory relief under section 23 of the Federal Court of Australia Act 1976 (Cth).

The court determined that the applicant's liability to be removed from Australia existed prior to and independently of the MRT decision. This liability was a result of the applicant being an unlawful non-citizen without a visa, and the court lacked the authority to grant a visa. Consequently, the court found that the power to make orders affecting the operation of the MRT decision did not extend to restraining the removal of the applicant from Australia, as the Minister was entitled to remove the applicant unless the MRT decision changed the applicant's status as an unlawful non-citizen.

The court also examined the implications of the decision in Madafferi v Minister for Immigration & Multicultural Affairs, which held that the existence of a threat of removal prior to the determination of substantive proceedings could attract the court's intervention under section 482 of the Act. However, the court concluded that Madafferi did not address the extent of section 482 in circumstances similar to the present case, and it was not clear that the Full Court intended to exclude the availability of section 23 of the Federal Court of Australia Act in appropriate cases. The court found no ground for review of the MRT decision as the application did not disclose any failure by the MRT to consider a relevant matter.

Accordingly, the application for interlocutory relief was refused. The court held that it did not have jurisdiction under sections 482(2) and (3) of the Act to make the orders sought, and the availability of section 23 of the Federal Court of Australia Act was not precluded in this context.