Newman-Mariotti v Minister for Immigration and Border Protection

The plaintiff, Troy Edward Newman-Mariotti, sought an interlocutory injunction to prevent the Minister for Immigration and Border Protection from removing him from Australia pending the determination of his substantive application to quash the Minister's decision to revoke his visa. The dispute arose from the Minister's cancellation of the plaintiff's Electronic Travel Authority visa, which the plaintiff contended was invalidly made. The matter was before the High Court of Australia.

The central legal issue before the Court was whether the plaintiff had established a serious question to be tried regarding the validity of the visa cancellation. Specifically, the plaintiff argued that the Minister had misconstrued or misapplied section 116(1)(e) of the *Migration Act 1958* (Cth) by failing to consider it in light of the constitutionally implied freedom of political communication. The Court was also required to consider whether the balance of convenience favoured the grant of an interlocutory injunction.

The Minister's delegate cancelled the plaintiff's visa under section 128 of the *Migration Act*, being satisfied that the plaintiff's presence in Australia posed a risk to the good order of the Australian community under section 116(1)(e). The delegate relied on open-source information indicating the plaintiff's prominent role as an anti-abortion activist in the United States, his past arrests for protesting, and the potential for adverse public reaction and protests in Australia. The Minister submitted that the plaintiff was largely the author of his own predicament, having been informed he lacked entitlement to travel to Australia and having proceeded with his travel plans. While the Minister conceded a serious question to be tried existed, he argued that the statutory threshold for cancellation under section 116(1)(e) was low, requiring only a possibility of a threat to good order, and that the plaintiff faced a formidable burden to obtain final relief. The plaintiff countered that the cancellation decision lacked formal notification, that his presence was not a risk, and that the cancellation itself was the subject of the proceeding.

The Court granted leave to file an affidavit from an Australian Government Solicitor and took it as read. The Minister indicated he would not grant a visa and intended to remove the plaintiff at the earliest opportunity, which could be over the weekend, absent an interlocutory order. The plaintiff's legal representative noted that an undertaking for non-removal had been given for 24 hours previously and that they were proceeding on the basis of no removal before the weekend. The Court ultimately considered the arguments on interlocutory relief.