Plaintiff S111/2017 v Minister for Immigration and Border Protection

The plaintiff, identified as S111/2017, sought interlocutory relief from the High Court of Australia against the Minister for Immigration and Border Protection. The dispute concerned the Minister's potential exercise of discretion under section 501(1) of the *Migration Act 1958* (Cth) to refuse the plaintiff's protection visa, despite the plaintiff having been assessed as a refugee. The plaintiff also sought an order for release pending the final hearing, in the nature of habeas corpus or pursuant to Federal Court Rules.

The court was required to determine whether there were serious issues to be tried, particularly concerning the plaintiff's applications for an interlocutory injunction and release. A key preliminary issue raised by the court was whether the application for an interlocutory injunction was premature, given that the Minister had not yet exercised the discretion under section 501(1) and there was no immediate threat of refoulement. The plaintiff argued that the potential exercise of this discretion, followed by removal under section 198(6) and section 197C of the *Migration Act*, could occur before any statutory review rights were exercised, thereby defeating those rights and potentially leading to refoulement.

The plaintiff's legal arguments centred on two main bases: an estoppel argument and a constitutional argument alleging an infringement of Chapter III of the Constitution by the Executive. The plaintiff contended that the Minister was estopped from exercising his discretion due to the prolonged period during which the plaintiff's immigration status was being determined through various administrative and judicial proceedings, and that the Executive's interpretation and implementation of relevant sections of the *Migration Act* infringed upon Chapter III. The plaintiff argued that these grounds meant the Minister had no discretion to exercise, and seeking an undertaking not to be refouled would be insufficient, as it would concede the existence of a discretion that the plaintiff argued did not exist. The court noted that the plaintiff's arguments, particularly the constitutional one, were novel and required compelling grounds for adjudication at an interlocutory stage.

The Minister conceded that if serious issues were found to be tried, the balance of convenience would favour the plaintiff. The plaintiff's counsel argued that all necessary facts were before the court and were not in dispute, supporting the assertion that there was a serious case to be tried regarding the existence and operation of a public law administrative estoppel and the alleged Chapter III infringement.