Minister for Immigration and Border Protection v EAB16

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v EAB16 [2017] FCA 380

Appeal from: 

Application for Leave to Appeal:  EAB16 v Minister for Immigration and Border Protection (Federal Circuit Court, No. ADG 125/2017, Orders dated 6 April 2017)

File number:

SAD 87 of 2017

Judge:

BESANKO J

Date of judgment:

6 April 2017

Date of publication of reasons:

12 April 2017

Catchwords:

PRACTICE AND PROCEDURE – application for leave to appeal an interlocutory order made by the Federal Circuit Court of Australia – where applicants’ argument raises a point of principle – where applicants claim interlocutory order beyond power because it requires them to treat cancellation decision as of no effect in absence of declaration of excess or want of jurisdiction – whether appeal should be heard immediately – where complex issues of law – where delay in hearing the appeal would not render the appeal moot.

PRACTICE AND PROCEDURE – alternative application for interim relief – where balance of convenience favours the respondent – where risk of removal and persecution.

Legislation:

Migration Act 1958 (Cth) ss 42, 82, 128, 474

Cases cited:

Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397

Lansen and Others v Minister for Environment and Heritage and Another (2008) 174 FCR 14

Date of hearing:

6 April 2017

Registry:

South Australia

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

13

Counsel for the Applicants:

Mr D O’Leary

Solicitor for the Applicants:

Australian Government Solicitor

Counsel for the Respondent:

Mr S McDonald

Solicitor for the Respondent:

Camatta Lempens Pty Ltd

ORDERS

SAD 87 of 2017

BETWEEN:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Applicant

COMMONWEALTH OF AUSTRALIA

Second Applicant

AND:

EAB16

Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	6 APRIL 2017

THE COURT ORDERS THAT:

1.Leave to appeal be granted.

2.The applicants’ application for interim relief from the order made by the Federal Circuit Court this day be refused.

3.The matter be adjourned to a directions hearing on Tuesday, 11 April 2017 at 9.00 am (Adelaide time).

4.The question of costs be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

1. At approximately 10 pm on Thursday, 6 April 2017, an application for leave to appeal from an interlocutory order made by the Federal Circuit Court of Australia came before me.  The Minister for Immigration and Border Protection and the Commonwealth of Australia sought leave to appeal from an interlocutory order made by a judge of the Federal Circuit Court earlier that evening.  I was told that the respondent was in the international airport at Dubai waiting to board a flight back to Australia.  It seems that the respondent had been in the airport since 3 April 2017.  The interlocutory order from which leave to appeal was sought was in the following terms:

   1.An interlocutory injunction is granted until the final determination of this…