Where a non-citizen initiates judicial review proceedings alleging that their request for Ministerial Intervention has been finalised or determined unlawfully, can a Court make an order preventing their removal under s 198 of the Migration Act 1958 until their application is finally determined?
Legal Background
In the 2023 decision of Davis v Minister for Immigration the High Court determined that guidelines issued by the Minister in 2016 which directed officers of the Department of Home Affairs on how to deal with requests for Ministerial Intervention under ss 351 and 417 of the Migration Act 1958 (the 2016 Guidelines), unlawfully delegated a non-delegable power conferred on the Minister personally.
That was because the 2016 Guidelines in effect delegated to Departmental officers the power to determine whether it would be in the public interest to act on a request, even though the power to decide what is in the public interest is held solely by the Minister.
Factual Background
The Applicant, MZAPC, was an unlawful non-citizen held in immigration detention. He had exhausted all of his avenues to make an onshore application for a visa, and had exercised all of his merits review and judicial review rights. Pursuant to s 198(6) of the Migration Act, officers of the Department were under a duty to remove MZAPC from Australia as quickly as reasonably practicable. MZAPC had made several requests for Ministerial Intervention under various extraordinary intervention powers, including ss 48B, 195A, 197AB, 351 and 417. Some of those requests had been finalised in accordance with the 2016 Guidelines, while others had not.
MZAPC applied to the Federal Court of Australia for a declaration that the finalisation of at least some of his intervention requests were unlawful, relying on the High Court’s decision in Davis. MZAPC also applied for an interlocutory (interim) order restraining the Minister from removing him from Australia until his application for judicial review of the intervention decisions until his application for judicial review was finally determined.
The Federal Court of Australia at first instance granted an injunction restraining MZAPC’s removal, but the Minister applied to the Full Court of the Federal Court for leave to appeal the decision of the single justice.
Outcome
By a 2:1 majority, the Court determined that the justice at first instance had not erred in making the interim order restraining the Minister from removing MZAPC until his application for judicial review was determined.
However, all three judges acknowledged the tension between the obligation to remove MZAPC imposed by s 198(6) of the Migration Act—which MZAPC acknowledged had been properly enlivened—and the Court’s inherent jurisdiction to make orders protecting the integrity of its proceedings. Requesting Ministerial Intervention does not, in and of itself, abrogate the obligation to remove imposed by s 198 of the Migration Act.
A majority of the Court (Colvin and Jackson JJ) found that because MZAPC might lose the possibility of benefitting from the relief he sought through his substantive application for judicial review, the Court’s inherent jurisdiction extended to making an order preventing the Minister from removing him from Australia while that application was being determined. That was the case even though, if MZAPC’s application for judicial review was successful, the Minister was not under any obligation to even consider whether to act on the request.
The dissenting Justice (SC Derington J) found that MZAPC’s prospective removal in accordance with s 198(6) was insufficiently connected to his application for judicial review of the finalisations of his intervention request, because any order made by the Court in relation to MZAPC’s application for judicial review would not abrogate the obligation to remove imposed by s 198(6) of the Migration Act.
Is this the end of the story?
In our opinion, it seems likely that the Minister will apply to the High Court of Australia for Special Leave to Appeal from the Full Court’s decision. Although it is approaching 12 months since the High Court’s decision in Davis, the 2016 Guidelines have not been revoked or amended and remain in force.
Further, the Full Court’s decision now raises the possibility of a large cohort of non-citizens whose intervention requests were finalized under the 2016 Guidelines, will now be able to stay their removals by applying for judicial review of those decisions. However, it is important to note that judicial review proceedings in relation to intervention requests do not provide a pathway to a Bridging E (subclass 050) Visa, such that taking such an approach is likely to extend a non-citizen’s time in immigration detention, not the Australian community.
What does this case illustrate?
The Full Court’s decision in MZAPC highlights the complexities associated with Ministerial Intervention requests, particularly in light of the High Court’s decision in Davis. It also highlights the complexities that arise when the obligations imposed by statute (in this case, the Migration Act) conflict with the inherent jurisdiction of the Court to control and protect the integrity of its proceedings.
