Xad by her Litigation Guardian Xae v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

In the case of Xad by her Litigation Guardian Xae v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the applicant, an "unauthorised maritime arrival," sought an interlocutory injunction to restrain her removal from Australia pending the final determination of her case. The legal issues before the court included whether the power to remove the applicant from Australia under section 198 of the Migration Act 1958 (Cth) was available when a valid visa application was made, whether a section 46A(2) determination validated the applicant’s visa application, and if the non-refoulement assessment was a statutory process that impacted the Minister’s power to remove the applicant. Additionally, the court examined the principles relevant to the grant of an interlocutory injunction, including whether a serious question to be tried existed and where the balance of convenience lay.

The court found that the applicant had established a prima facie case sufficient to justify the grant of an interlocutory injunction. It held that the balance of convenience strongly favoured the applicant, leading to the decision to grant the injunction restraining her removal from Australia until the final hearing and determination of her case. The court dismissed the interlocutory application in the second proceeding and reserved the question of legal costs. It also ordered that each of the applicant's proceedings should be listed for a case management conference to formulate and take the necessary steps to accommodate a trial.

The court made an order listing the proceeding for a case management conference on a date to be fixed, ensuring that the necessary arrangements for the trial were addressed. This decision underscores the importance of carefully considering the balance of convenience and the existence of a prima facie case when granting interlocutory injunctions in immigration matters.