Federal Court of Australia

Assistant Minister for Immigration v Hood (Adjournment) [2026] FCAFC 98

ORDERS

THE COURT ORDERS THAT:

1.    The listing of the hearing of the appeal on 5 August 2026 be vacated and the appeal be adjourned to a date to be fixed after the hearing and determination of the application for special leave to appeal to the High Court of Australia in XMBQ v Minister for Immigration and Citizenship (M29/2026) and, if that application is granted, the hearing and determination of the appeal in that matter.

2.    The costs of the respondent’s adjournment application and any costs thrown away as a result of the adjournment be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    Mr David Hood is the respondent to an appeal filed by the Assistant Minister for Immigration. That appeal is listed for hearing by the Full Court on 5 August 2026. Mr Hood has applied to vacate that listing and adjourn the hearing of the appeal. That application is opposed by the Assistant Minister. For the brief reasons that follow, the listing should be vacated and the appeal listed for hearing on a date to be fixed.

2    The nature of the appeal and the circumstances which have led Mr Hood to seek to defer the hearing may be shortly stated. Mr Hood’s visa was cancelled by a delegate of the Minister for Immigration pursuant to s 501(3A) of the Migration Act 1958 (Cth) in March 2019, however that decision was revoked by the Administrative Appeals Tribunal in March 2020. Nearly four years and nine months later, the Assistant Minister decided to set aside the Tribunal’s decision and substitute a decision to revoke Mr Hood’s visa pursuant to s 501BA(2) of the Act. Mr Hood challenged that decision in judicial review proceedings in this Court.

3    The primary judge followed a decision of a single judge of this Court in XMBQ v Minister for Immigration and Multicultural Affairs [2025] FCA 553, in which it was held that the power in s 501BA(2) of the Act was subject to an implied requirement that any decision to exercise the power be made within a reasonable time. His Honour concluded that the Assistant Minister’s decision was not made within a reasonable time, and therefore quashed the decision: Hood v Assistant Minister for Immigration [2025] FCA 1336. The Assistant Minister had formally submitted that XMBQ had been wrongly decided, but did not seek to persuade the primary judge that it should not be followed by another single judge.

4    The Assistant Minister filed his notice of appeal on 1 December 2025. The notice of appeal contained two grounds, the first being in essence that the primary judge had erred in concluding that s 501BA(2) of the Act was subject to an implied requirement that any decision to exercise the power be made within a reasonable time. The second ground was in essence that the primary judge erred in concluding that the Assistant Minister’s decision was not made within a reasonable time.

5    On 9 March 2026, the Full Court handed down a judgment in Minister for Immigration and Citizenship v XMBQ [2006] FCAFC 19 (XMBQ (Full Court)), which overturned the judgment in XMBQ. The Full Court concluded that s 501BA(2) of the Act is not subject to an implied requirement that any decision to exercise the power be made within a reasonable time. On 2 April 2026, however, the unsuccessful respondent in XMBQ (Full Court) filed an application for special leave to appeal in the High Court in which he argues that the power in s 501BA(2) is subject to that implied requirement.

6    Mr Hood’s application to vacate the hearing of his appeal is based on the filing of the application for special leave to appeal the judgment in XMBQ (Full Court) in the High Court of Australia. In his filed submissions, he formally submits that XMBQ (Full Court) was wrongly decided but submits, in effect, that there would be no point in him seeking to persuade this Court that it was wrongly decided in light of the application for special leave which will finally determine the issue. Mr Hood also filed a notice of contention in which he contended that the judgment of the primary judge should be affirmed on other grounds. In his submission, the interests of justice are best served by adjourning the appeal to await the outcome of the special leave application and, if granted, the appeal from the judgment in XMBQ (Full Court).

7    As already noted, the Assistant Minister opposes Mr Hood’s adjournment application. He argues (citing Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10 at [49]) that the Court should decide the appeal on the basis of the law as it currently is, rather that speculate about possible changes in the law. Perhaps more pointedly, citing City of Sydney Council v Satara [2007] NSWCA 148 at [31], he submits that the Court should proceed to hear the appeal despite the special leave application unless to refuse the adjournment would prejudice Mr Hood “to the point of denying justice”. He submits that Mr Hood has not articulated why he would be prejudiced to the point of denying justice if the hearing of the appeal is not adjourned.

8    Two additional points in respect of the Assistant Minister’s position should, however, be noted. First, in earlier correspondence with the Court, the Assistant Minister indicated that he would not oppose the Full Court hearing the appeal and reserving its judgment until the special leave application is determined. Second, the Assistant Minister did not suggest that he would suffer any prejudice if the hearing of the appeal was adjourned.

9    It may readily be accepted that the adjournment of a trial or appeal may not necessarily be warranted merely because an application for special leave has been filed in another case in respect of an issue that could affect the outcome of the trial or appeal. That said, the statement in Satara upon which the Assistant Minister relies (which in turn was taken from Watson v Watson (1968) 70 SR (NSW) 203 at 206, 210-211) was unlikely to be intended to prescribe, and should not in any event be taken to prescribe, an inviolable test that must be applied and satisfied in every case where an adjournment is sought in those circumstances (noting that the point in fact made in Watson was that an order refusing an adjournment in those circumstances will involve an error warranting appellate intervention). As the reasoning in Satara indicates, each case must turn on its own facts: see Satara at [38] and see also Geelong Football Club Ltd v Clifford [2002] VSCA 212 at [6] (Ormiston JA - referring to the absence of “black and white rules” in this area). The extent of the prejudice likely to be suffered by the party seeking the adjournment if the adjournment is not granted is not the only relevant consideration. Other considerations are likely to include: whether the application for special leave had been listed for hearing (if an oral hearing is considered necessary); the extent to which the outcome of the special leave application is likely to affect the outcome of the trial or appeal the subject of the adjournment application (in Satara that was debatable – see at [34], [35]); the nature of the appeal or hearing the subject of the adjournment application (in Satara it was a three-week trial); and any prejudice likely to be suffered by the party resisting the adjournment. Further, as is the case with an application for a stay of a court’s own orders pending the determination of a special leave application, it is likely to be relevant to consider the prospects of special leave being granted: 123 259 932 Pty Ltd v Cessnock City Council (No 2) [2023] NSWCA 89 (Cessnock City Council) at [2]-[9] (Kirk JA) and the authorities there referred to, noting the possible difficulties in making that assessment canvassed by his Honour at [8].

10    In the present case, there could be no doubt whatsoever that the outcome of the application for special leave to appeal the judgment in XMBQ (Full Court) will have significant implications for the present appeal. The special leave application primarily concerns the very point which is ground one of the Assistant Minister’s notice of appeal. If the hearing of the appeal proceeds before the special leave application is determined, the Assistant Minister’s appeal on that ground will almost certainly succeed given that, as indicated earlier, Mr Hood has indicated that he will not seek to persuade this Court that XMBQ (Full Court) was wrongly decided in light of the extant special leave application. Mr Hood would be justified in feeling aggrieved if special leave to appeal was subsequently granted and the appeal from the judgment in XMBQ (Full Court) was allowed. He would also have limited recourse in those circumstances. That is a form of prejudice.

11    We do not propose to undertake any refined probabilistic analysis of the prospects of the special leave application being granted – that is properly regarded as an impressionistic exercise: see again Cessnock City Council at [8] and [21]. It is sufficient for present purposes to make two points. First, it is difficult to see how the Assistant Minister could argue that the question of construction of s 501BA(2) of the Act is not a question of public importance in respect of which there have been differences of opinion in this Court (as is clear from the reasoning in XMBQ (Full Court)). Secondly, it is equally difficult to see how the Assistant Minister could suggest that there is not at least a reasonable prospect that special leave will be granted. Those matters weigh in favour of Mr Hood’s application.

12    As already noted, the Assistant Minister did not contend that he would suffer any, or any material, prejudice, if the appeal is adjourned. Unlike Satara, which involved a three-week trial, the appeal in Mr Hood’s case is listed for hearing for one day. The adjournment of a one-day appeal in the circumstances is unlikely to offend the overarching purpose of the Court’s civil practice and procedure as contended by the Assistant Minister. In our view, given the implications for the appeal of the questions of law arising in the special leave application, the adjournment would further that purpose.

13    The Assistant Minister’s initial indication that he would not oppose the Full Court hearing the appeal and reserving its judgment until the special leave application is determined and would then “revisit the position at that time” is both unappealing and merely underlines the fact that the Assistant Minister is unlikely to suffer any prejudice if the hearing of the appeal is adjourned. The proposal advanced by the Assistant Minister concerning the Full Court reserving its judgment is unappealing because if the appeal is heard, the Full Court would have to hear argument in respect of the Assistant Minister’s second ground of appeal and Mr Hood’s notice of contention. If the special leave application is subsequently dismissed, the time taken to argue that ground of appeal would have been effectively wasted. That again is a form of prejudice to Mr Hood. It would also constitute an inefficient use of the Court’s resources. If, however, special leave is granted, that would most likely indicate that the Full Court’s judgment should remain reserved until the appeal in the High Court is determined. And if the appeal were ultimately allowed in those circumstances, Mr Hood would have argued his notice of contention for no good reason. That is a further form of prejudice to Mr Hood.

14    In all the circumstances, the balance tips in favour of adjourning the hearing of the appeal. The outcome of the application for special leave to appeal from the judgment in XMBQ (Full Court) is likely to be central, if not critical, to the outcome of the appeal in Mr Hood’s case. The prospective scenarios outlined above suggest that Mr Hood is likely to suffer some prejudice if his appeal is heard in advance of the hearing of the special leave application. The Assistant Minister’s proposal that the Full Court reserve its judgment pending the outcome of the special leave application is unappealing and unsatisfactory, particularly as the Court would have to hear argument in respect of the Assistant Minister’s second ground of appeal and Mr Hood’s notice of contention in any event. That would not be an efficient utilisation of the Court’s resources. The time and expense involved in running those arguments may turn out to be wasted depending on the outcome of the special leave application. The Assistant Minister will not suffer any, or any material or significant, prejudice if the appeal is adjourned.

15    It follows that the Court proposes to adjourn the hearing of the Assistant Minister’s appeal to a date to be fixed after the determination of the application for special leave to appeal the judgment in XMBQ (Full Court) and, if that application is granted, the hearing and determination of the consequent appeal. Mr Hood’s adjournment application was determined on the papers. In all the circumstances, the appropriate order in respect of costs is that the costs of the adjournment application and any costs thrown away as a result of the adjournment be reserved.

Associate:

Dated:    29 July 2026