Minister for Immigration and Multicultural Affairs v MZAPC

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.