Minister for Immigration and Multicultural Affairs v MZAPC

Case [2025] HCA 5

HIGH COURT OF AUSTRALIA

GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS & ORS  APPELLANTS

AND

MZAPC  RESPONDENT

Minister for Immigration and Multicultural Affairs v MZAPC

[2025] HCA 5

Date of Hearing: 13 August & 13 November 2024
Date of Judgment: 5 March 2025

P21/2024

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

P D Herzfeld SC with J G Wherrett for the appellants and on behalf of the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

C L Lenehan SC with A F L Krohn, C J Tran and A R Sapienza for the respondent (instructed by Pinnacle Lawyers)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Minister for Immigration and Multicultural Affairs v MZAPC

Immigration – Unlawful non-citizens – Where proceeding for declaration that departmental officer exceeded executive power of Commonwealth – Where departmental officer declined to refer to Minister request for exercise of power under s 195A of Migration Act 1958 (Cth) – Where s 198(6) of Migration Act imposed duty on officers to remove unlawful non-citizen as soon as reasonably practicable – Where proceeding did not challenge valid application of s 198(6) to unlawful non-citizen – Whether Federal Court could make interlocutory order restraining officers from removing unlawful non-citizen notwithstanding duty imposed by s 198(6) – Meaning of "reasonably practicable" – Relevance of Tait v The Queen (1962) 108 CLR 620.

Words and phrases – "balance of convenience", "effective exercise of jurisdiction", "executive power", "incidental power", "integrity of court processes", "interlocutory injunction", "interpretative accommodation", "liberty to consider", "non-compellable power", "personal power", "preserve subject matter", "preserve utility of final relief", "prima facie case", "principle of legality", "procedural decision", "reasonably practicable", "remove unlawful non‑citizen", "statutory duty", "statutory power", "statutory process".

Migration Act 1958 (Cth), ss 195A, 198(6).

  1. GAGELER CJ, GORDON, GLEESON AND JAGOT JJ. Section 198(6) of the Migration Act 1958 (Cth) confers a power and imposes a duty on an officer to remove from Australia "as soon as reasonably practicable" an unlawful non-citizen who is in immigration detention and whose application for a substantive visa has been refused and finally determined.

  2. Section 195A of the Migration Act confers a personal and non-compellable power on the Minister to grant a person who is in immigration detention a visa of a particular class if the Minister thinks that it is in the public interest to do so. The requirement of s 195A that "[t]he power ... may only be exercised by the Minister personally" was held in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[1] to create a "zone of exclusive Ministerial personal decision‑making power" into which no other executive officer of the Commonwealth may transgress. The effect of the statutory zone of exclusion is that the executive power of the Commonwealth does not extend to permit the Minister to authorise a departmental…

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AGLC
Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5
Case
[2025] HCA 5
Decision Date

CaseChat Overview and Summary

The appeal concerned an unlawful non-citizen, MZAPC, who sought declaratory and interlocutory relief in the Federal Court of Australia. MZAPC's substantive claim was that departmental officers had exceeded the executive power of the Commonwealth in their handling of requests for the Minister to exercise personal, non-compellable powers under the *Migration Act 1958* (Cth), specifically s 195A. The primary judge had granted an interlocutory injunction restraining MZAPC's removal from Australia pending the final determination of the proceedings. The Minister for Immigration and Multicultural Affairs and other departmental officers appealed this decision.

The High Court was required to determine whether the Federal Court had the power to grant an interlocutory injunction restraining the removal of an unlawful non-citizen, notwithstanding the statutory duty imposed on officers by s 198(6) of the *Migration Act* to remove such persons as soon as reasonably practicable. This involved considering the meaning and application of "reasonably practicable" within s 198(6) and the relevance of the principle of legality to the interpretation of this provision.

The Court reasoned that while s 198(6) imposes a statutory duty to remove an unlawful non-citizen, this duty is not absolute and is qualified by the requirement that removal must be "reasonably practicable". The Court held that if it was reasonably arguable that removal was not reasonably practicable, then the Federal Court had the power to restrain removal. This was particularly so in circumstances where the substantive claim alleged unlawful conduct by the department that, if not addressed, would be stultified by the applicant's removal. Applying the principle of legality, the Court assumed that Parliament did not intend to deny a person a reasonable opportunity to present a case concerning alleged unlawful conduct that caused substantial detriment. Therefore, it was not reasonably practicable to remove MZAPC while his claim regarding the legality of the treatment of his requests for ministerial intervention was pending before the courts.

The appeal was dismissed with costs. The High Court concluded that the Federal Court had the power to issue an interlocutory injunction to restrain the removal of MZAPC until the requirements of s 198(6) of the *Migration Act* were found to have been met, given the arguable case that removal was not reasonably practicable in the circumstances.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Therefore, and as explained below, the appeal is to be dismissed with costs. BackgroundThe originating application and application for an interlocutory injunction On 8 August 2023 the respondent, an unlawful non-citizen held in immigration detention pending removal from Australia, filed an originating application in the Federal Court of Australia. In that application the respondent sought declaratory and related relief. The form of the declaration sought was refined before this Court to a declaration in these terms:"Declare that the decisions made by officers of the Commonwealth in respect of the respondent from 2016 to 2022 in purported compliance with the 'Guidelines on Minister's detention intervention power (s 195A of the Migration Act)' (November 2016) exceeded the executive power of the Commonwealth." In the originating application the respondent also sought an interlocutory injunction restraining the Minister for Immigration and Multicultural Affairs, the Secretary of the Department of Home Affairs, and the relevant officers acting under s 198(6) of the Migration Act (together, the appellants) from removing the respondent from Australia pending the final determination of the proceeding. The primary judge grants an interlocutory injunction The primary judge (Feutrill J) heard the application for the interlocutory injunction on 9 and 18 August 2023. The primary judge granted the interlocutory injunction on 21 August 2023. In determining to grant the interlocutory injunction, the primary judge recorded that the substantive relief sought in the originating application (the declaration and related orders) depended on claims that "officers of the Commonwealth exceeded the executive power of the Commonwealth in making a number of decisions in purported compliance with ministerial guidelines in respect of requests the [respondent] made for the Minister to consider exercising [several personal and non-compellable Ministerial] powers [including that conferred by s 195A of the Migration Act] to grant the [respondent] a visa".[5] [5]MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 989 at [2]. The primary judge found that "with respect to the 2016 Ministerial Guidelines, the factors that the Department is instructed to assess and balance operate as 'an approximation of the public interest'. Therefore, it is reasonably arguable that the Minister has purported to entrust the dispositive evaluation of the public interest to departmental officers and thereby exceeded the statutory limit on executive power imposed by s 195A(1)."[6] As a result, the primary judge concluded that there was "a sound legal basis for, at least, the declaratory relief the [respondent] seeks in the proceedings".[7][6]MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 989 at [13].[7]MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 989 at [14]. The primary judge also found that the affidavits adduced as evidence in respect of the application for the interlocutory injunction demonstrated, "at the very least, that the Department made assessments of the [respondent's] circumstances against the 2016 Ministerial Guidelines and 'decided' based on those assessments not to refer his case to the Minister for consideration of the exercise of the Minister's power under s 195A". As a result, the primary judge considered that the respondent had established a factual foundation for the declaratory relief sought in the originating application.[8][8]MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 989 at [49].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GAGELER CJ, GORDON, GLEESON AND JAGOT JJ (dissent) EDELMAN J (dissent) STEWARD J (dissent)
This conclusion is further reinforced by the principle that is sometimes described as the "principle of legality". If s 198(6) of the Migration Act required MZAPC to be removed from Australia while his application for a declaration about the legality of the treatment of his requests for ministerial intervention (conceded on this appeal to have reasonable grounds) was pending, then that application would, in effect, be stultified. The principle of legality is an umbrella term for a series of background assumptions, of variable force in the interpretation and application of legislation,[114] which include the assumption that "a person's right to a reasonable opportunity to present a case ... [cannot] usually be abolished by Parliament by a nudge and a wink".[115] That assumption is a strong counterweight against the application of open-textured provisions (such as "reasonably practicable") in a way that would deny a person any ability to vindicate unlawful conduct which caused substantial detriment to their interests. [114]Hurt v The King (2024) 98 ALJR 485 at 506 [106]; 418 ALR 63 at 89-90, citing Stephens v The Queen (2022) 273 CLR 635 at 653 [34]. See also Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560 at 623 [159].[115]BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 at 52 [56].Conclusion The premise of MZAPC's claim for a declaration is that the Minister's Department had unlawfully frustrated or impeded the Minister's liberty to consider whether to exercise a non-compellable power. On that premise, the removal of MZAPC would buttress that unlawful conduct. It was not reasonably practicable to remove MZAPC while such a claim was before the courts. The Federal Court had power to issue an interlocutory injunction to restrain the removal of MZAPC until the requirements of s 198(6) of the Migration Act were found to have been met. The appeal should be dismissed with costs. In this matter the respondent seeks to avoid his removal from Australia pursuant to s 198(6) of the Migration Act 1958 (Cth) ("the Act") on the basis that he has made requests for the Minister to exercise the powers contained in ss 48B, 195A, 351 and 417 of the Act in his favour. His claim is inspired by this Court's decision in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[116] Davis concerned s 351 of the Act. I dissented.[116](2023) 97 ALJR 214; 408 ALR 381. Each of ss 48B, 195A, 351 and since repealed s 417 of the Act involve the conferral on the Minister of a non-compellable personal power. The Minister is under no legal duty whatsoever to consider whether he should or should not exercise each power. The Minister may lawfully never exercise any of these powers. That is because in each case the power is qualified by these words, or by words of the same effect:[117]"The Minister does not have a duty to consider whether to exercise the power ... in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances."[117]Migration Act 1958 (Cth), s 351(7); see also s 48B(6), s 195A(4) and s 417(7).

Ratio Decidendi

Legal Principle Established

Established by:

In this respect, I agree entirely with the analysis by Beech-Jones J of the treatment by this Court of the obligation to execute Mr Tait in Tait v The Queen.[103] Neither the High Court of Australia, nor any other court, had the power to stay an unchallenged order for execution based only upon the existence of an administrative process that might establish gross unfairness in the execution of a person who might be found by that process to be suffering from a serious psychiatric illness. A perception of gross unfairness is not a sufficient basis for a court to refuse to follow the law. The only alternative for a judge whose conscience does not permit them to refuse a stay due to their perception of gross unfairness is resignation. However, as Beech-Jones J explains, the stay ordered by this Court in both applications in Tait v The Queen was based upon concern that the execution of Mr Tait would be unlawful and therefore that the order for execution (and consequential warrant) might be set aside. [103](1962) 108 CLR 620. The statutory duty in s 198(6) of the Migration Act Section 198(6) of the Migration Act relevantly provides:"An officer must remove as soon as reasonably practicable an unlawful non-citizen if:(a) the non-citizen is a detainee; and(b)the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and(c) one of the following applies:(i)the grant of the visa has been refused and the application has been finally determined ... ; and(d)the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone." There was no dispute that the jurisdictional preconditions in (a), (b), (c), and (d) were satisfied. There was therefore a statutory obligation upon the relevant officer to remove MZAPC "as soon as reasonably practicable". That statutory obligation was not merely the conferral of a power but a duty to exercise that power to remove. There was no challenge to the validity of that provision in its application to MZAPC. No court had any power to restrain the statutory obligation imposed by s 198(6). The relevant officer's statutory duty to remove MZAPC, once enlivened, cannot be stayed by circularly reasoning that even if the jurisdictional preconditions of s 198(6) of the Migration Act are satisfied, s 198(6) should not be interpreted in a manner that would require an officer to place themselves in jeopardy of contempt of court if a court granted an injunction to restrain removal. That reasoning is circular because it assumes the correctness of its premise: that s 198(6) empowers a court to grant an injunction to restrain its operation when all jurisdictional preconditions are satisfied.The meaning and application of "reasonably practicable" This appeal therefore reduces to ground one of the further amended notice of contention raised by MZAPC concerning the meaning and application of "reasonably practicable". Even when the conditions in paras (a) to (d) of s 198(6) of the Migration Act are satisfied, the duty of an officer to remove a person is not absolute.[104] Parliament's command in s 198(6) of the Migration Act does not require or permit removal if removal is not "reasonably practicable". If it was reasonably arguable, in the sense that there was a "prima facie case",[105] that it was not reasonably practicable to remove MZAPC then, consistently with s 198(6), there was power for the Federal Court to restrain the removal of MZAPC. [104]M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 at 165-166 [64]-[69].[105]Simsek v Macphee (1982) 148 CLR 636 at 641.