MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs

In the matter of MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs, the Federal Court was tasked with deciding an application for an interlocutory injunction to prevent the removal of a non-citizen from Australia. The applicant, a national of India who had entered Australia on a student visa, faced removal following the cancellation of his bridging visa. The legal issues before the Court were whether the decision of a departmental officer not to refer the applicant's circumstances to the Minister for consideration under certain sections of the Migration Act 1958 (Cth) exceeded the executive power of the Commonwealth, whether there was a serious question to be tried, and whether the balance of convenience favoured the grant of an injunction.

The Court found that the powers conferred on the Minister under sections 195A, 351, 417 and 48B of the Migration Act are personal to the Minister and are exercisable only in the public interest. Importantly, the Minister has no duty to consider whether to exercise these powers. The Court assessed whether there was a serious question to be tried by considering the applicant's evidence, which included his affidavits, and the respondents' affidavits, which contested the applicant's claims. The Court noted that while it should take into account all evidence on the application, it was not appropriate to resolve conflicts of affidavit evidence on an interlocutory application. Instead, the Court focused on whether there was a probability that the applicant would be held entitled to relief if the evidence remained as presented. Based on this assessment, the Court found that there was a serious question to be tried and that the balance of convenience favoured the grant of an injunction to prevent the applicant's removal.

The Court granted an interlocutory injunction restraining the respondents from removing the applicant from Australia, pending final orders on the originating process or further order of the Court. The parties were permitted to apply to vary or discharge the injunction with 48 hours’ written notice. The respondents were also ordered to pay the applicant's costs of the interlocutory application, if any, to be taxed if not agreed.