Federal Court of Australia

Cummings v Minister for Immigration and Multicultural Affairs [2025] FCA 1160

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 15 September 2025, in the amended form that it assumed as of 17 September 2025, be dismissed.

2.    The applicant pay the respondent’s costs of and pertaining to the interlocutory application in an amount to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

1    The applicant, Mr Cummings, is a New Zealand citizen and the former holder of a temporary visa issued to him pursuant to the Migration Act 1958 (Cth) (the “Act”). By a decision of the respondent (the “Minister”) made on 14 February 2025, that visa was cancelled, apparently on account of, first, his concern that Mr Cummings was a person who did not pass what the Act (and, in particular, s 501 thereof) refers to as the “character test” and, second, his view that such a course was in the national interest. By an originating application dated 19 May 2025, Mr Cummings moves the court for (amongst other things) prerogative relief to set aside the Minister’s decision to cancel his visa.

2    Mr Cummings was removed into immigration detention in May 2025. On 15 September 2025, he filed an interlocutory application, seeking urgent interlocutory injunctive relief against both the Minister and a proposed second respondent, Australian Border Force (or “ABF”), relating to his treatment in immigration detention. On 17 September 2025, he sought to file an amended version of that application, by which he seeks, in addition, orders requiring that he be referred to by a pseudonym in court processes and documents.

3    It is to that interlocutory application (as amended) that these reasons pertain. It was the subject of a hearing on Wednesday, 17 September 2025, at the conclusion of which it was dismissed on the undertaking that these written reasons would be published. That reality notwithstanding (and for the sake of convenience), these reasons maintain use of the present tense.

Background

4    Mr Cummings’s interlocutory application is supported by an affidavit that he affirmed on 15 September 2025. Without wishing to over-simplify, it addresses the experiences that he has had whilst in immigration detention and why it might be that the relief that is sought by his interlocutory application (as amended) should be granted.

5    Much of the content of Mr Cummings’s affidavit is in the nature of inadmissible opinion evidence. Much of it assumes the form of value- and adjectivally-laden conclusions. For the most part, it posits that his continued detention at the Melbourne Immigration Transit Accommodation in Broadmeadows, Victoria has caused and/or threatens to exacerbate his “severe mental health issues”, which would appear to include the “intermittent Major Depressive Disorder” with which he has been professionally diagnosed. Mr Cummings deposes to his “…belief that the Minister has abused his powers”, including by “…detaining me in a way that is intended to penalise me rather than lawfully administer the [Act]”. Further, he maintains in his affidavit that the Minister “…has engaged in a pattern of institutional abuse and harassment, detaining me for an inordinate period and using their [sic] powers as a tool to do harm against me.” He describes “the Minister’s actions” as “…vexatious, punitive and [a] clear overreach of power”.

6    Of more relevance presently are the matters to which Mr Cummings deposes about his treatment in immigration detention. He opines that his detention “…has been marked by unsafe and inhumane conditions”, which have included “being denied timely medical treatment”, “[b]eing placed in rooms that smelled strongly of smoke and drugs” (which, he says, has “trigger[ed] my anxiety”), and “[b]eing forced to sleep in the laundry room” on two occasions in May 2025.

7    As to the suggestion that he has been denied medical treatment, Mr Cummings deposes to having submitted (presumably to the administrators of the detention facility in which he is accommodated) various forms, including forms apparently relating to an asserted need of medical attention. Additionally, he deposes to having been hospitalised with an injured ankle, following which he was discharged with a “moon boot” but was later “…denied a single cell and forced to climb into a top bunk bed, worsening my condition”. He says, further, that he was “denied pain medication and made to walk to the medical unit”.

8    Mr Cummings also deposes to having informed “officers” (which I infer should be understood as a reference to officers involved in the administration of the detention facility) that his mental health had “deteriorated”, including to the point that he “…was sleepwalking and punching walls”; and that “[n]o meaningful action” was taken to address those concerns.

9    Mr Cummings’s affidavit refers additionally to discussions that he had in May and June of 2025 with representatives of the “Department” and “Australian Border Force” about his potential removal to New Zealand. He describes those discussions as “harassment” and “coercion” that made him feel “mocked and humiliated”. I take him to suggest that he has felt pressured by those representatives to agree to his removal. He deposes to having been told that he “shouldn’t be here”; that he does not “have a chance in Australia even if [his] visa is reinstated”; and that “they” will “keep coming after me if my visa was to get reinstated by the Minister”. He says that he has been offered a substantial sum of money to leave Australia. He considers that his treatment has been effected in bad faith and has been designed “…to deter me from pursuing my legal rights”.

10    The most serious of the matters to which Mr Cummings deposes concerns an incident that was said to have occurred on Friday, 12 September 2025 (but which is likely, in fact, to have occurred two days earlier). He states that he was involved in an altercation with another detainee, in the course of which he was “smashed” in the head with a toaster. He deposes to having lost consciousness in consequence of the assault and, despite suffering “injury and severe pain” was “not offered medical attention that day at all”. Additionally, he says, no police attended to investigate the incident (although he has since spoken to a police officer about it).

11    The respondents’ evidence paints a different picture, some of which Mr Cummings accepts as accurate. It suggests that there was an altercation with another detainee on Wednesday, 10 September 2025, that the other detainee attempted (but failed) to strike Mr Cummings with a toaster, that Mr Cummings then chased the other detainee out into an adjacent courtyard, that both of them fell in the course of their altercation there, that officers of the facility then broke them up, and that both were offered but refused medical attention. It is unnecessary (and much less am I able at this juncture) to resolve the conflict in that evidence.

12    Mr Cummings deposes to having been informed that the perpetrator of the assault is to be returned “…back into my unit, despite the danger he poses to me and others”. The respondents’ evidence—which Mr Cummings now accepts—is that there is no such intention to return the other detainee.

13    Mr Cummings refers to other threats that have been made to “burn and blow up the unit” and to many detainees being “fuelled by drugs” which creates “a highly dangerous environment”. He professes to being “terrified for my safety” and states his belief “…that ABF and MTC [(which appears to be a reference to the organisation that is responsible for administering the detention facility)] are failing in their duty of care and may even be deliberately putting me back into harm’s way”.

14    Mr Cummings maintains that his detention has “caused my anxiety and depression to escalate to critical levels” and that he now suffers “from severe psychological distress, sleep deprivation, and PTSD symptoms”. He says that “urgent legal intervention” is necessary so that he can “access urgent mental health care”. Inherent in that contention is a suggestion that he has been wrongly denied such care. It is unnecessary that I should attempt what is, at this juncture, the impossible task of resolving whether that is a proposition that the evidence establishes but I note, nonetheless, that there is correspondence attached to Mr Cummings’s affidavit that appears to originate from the facility in which he is detained and that reads as follows:

For your anxiety and depression, Secure Journeys encourages you to engage with the Compound officers for support and to refer you to relevant departments such as HealthCare Australia or Secure Journeys Welfare Team.

The Relief that Mr Cummings seeks

15    Mr Cummings’s affidavit of 15 September 2025 concludes as follows:

48.    This application is urgent because:

a.    I have recently been violently assaulted, and my attacker is being returned to my unit;

b.    There have been multiple threats to burn or blow up the unit, creating an ongoing and immediate risk to life;

c.    The facility is unsafe due to the prevalence of drugs and violence;

d.    My mental health is at a crisis point, and I am at risk of serious psychological harm or self-harm;

e.     Each day I remain in detention increases the risk of irreparable harm.

49.    I respectfully request that I be permitted to proceed under a pseudonym because:

a.    There is a real risk of retaliation from detainees and staff if my identity is made public;

b.    Publication of my identity would further jeopardise my safety while in detention;

c.    A pseudonym order will allow my case to proceed while protecting me from harm.

50.    I respectfully request that the Court:

a.    Order my immediate release to a rehabilitation facility where I can receive appropriate mental health care, or alternatively placement in community detention.

b.    Make pseudonym orders suppressing my name in publicly available court documents;

c.    Direct the Respondents to refrain from harassment, coercion, or threats regarding my visa status while these proceedings are ongoing;

d.    Require the Respondents to take all reasonable steps to ensure my physical and psychological safety until the final determination of my case.

51.    Damages would be an inadequate remedy because the harm I face is immediate, grave, and irreparable.

52.    The balance of convenience strongly favours my release, as the risk to my life and health outweighs any inconvenience to the Respondents.

16    The amended interlocutory application differs slightly in form to what is set out above. It seeks an injunction compelling the respondents to provide Mr Cummings with “immediate medical attention” and “a thorough mental health assessment”, and to place him in “a safe detention environment”. It seeks, further, a restraint on the respondents’ removing Mr Cummings from Australia; however, I was advised at the hearing that that was no longer to be pressed. Similarly, the quest to secure a restraint on the respondents’ “interfering with [Mr Cummings’s] communication with his legal team and family” was also abandoned.

17    The interlocutory injunctive relief for which Mr Cummings moves is said to be warranted because, unless granted, there is a risk to “…the integrity of the judicial process itself”. By the helpful written submissions advanced ahead of the interlocutory hearing, it was explained:

Central to these submissions is that the Respondents' agents have engaged in a pattern of wilful, coercive, and psychologically damaging conduct intended to wear down the Applicant and coerce him into abandoning his legal rights. It is submitted that this is a deliberate and direct interference with the course of justice that warrants the urgent intervention of the Court. The relief sought is essential to prevent a grave and irreparable injustice, which would not only result in serious harm to the Applicant, but would also allow the Respondents' agents to subvert the Court's jurisdiction.

18    Those same submissions describe Mr Cummings’s detention as being “…marked by a persistent and escalating failure on the part of the Respondents to provide a safe and humane detention environment, culminating in a severe physical assault and a profound deterioration of the Applicant’s health.” It is said that the respondents have “…further exacerbated the Applicant’s distress through a series of coercive and psychologically damaging encounters” and that their “negligence culminated in an incident on 12 September 2025 that resulted in the Applicant being struck in the head with a toaster”. That assault is said to have been “a direct consequence of the unsafe conditions” in which Mr Cummings is detained and which he had raised with the respondents. Further, the respondents are said, by their agents, to have “repeatedly engaged in acts of intimidation, mockery, and coercion” reflective of “an intention to wear down the Applicant and induce him to give up his right to seek judicial review”.

The proceeding

19    Mr Cummings’s interlocutory application was lodged on Monday, 15 September 2025. It was requested to be heard within 48 hours. On Tuesday, 16 September 2025, the parties were told that it would be heard on Wednesday, 17 September 2025. The Minister’s solicitors initially sought additional time to confirm that they would act for ABF (which confirmation was provided) and to prepare the respondents’ opposition to it; but, ultimately, the hearing went ahead as scheduled (albeit after a short adjournment to permit the applicant to provide instructions about the respondents’ affidavit of Mr Adrian Patrick Downie, which was received not long before the hearing).

20    After hearing from Mr Cummings’s representatives, I indicated that I was not satisfied that it was appropriate to grant the relief for which he moved. After giving brief oral reasons (which, as has been noted, I undertook to supplement by these written reasons), I made orders dismissing the interlocutory application (as amended) with costs.

Legal principles

21    For present purposes, it is accepted that the Court has power to grant an interlocutory injunction to restrain the respondents from doing things that might render inutile the substantive application before it: Federal Court of Australia Act 1976 (Cth) (the “FCA Act”), s 23; Minister for Immigration and Multicultural Affairs v MZAPC (2025) 99 ALJR 486, 491 [4], 495 [25], (Gageler CJ, Gordon, Gleeson And Jagot JJ) (“MZAPC”); Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, 393 [25] (Gaudron, McHugh, Gummow and Callinan JJ).

22    The principles that regulate the granting of interlocutory injunctive relief are well settled. An applicant for relief of that nature must establish that there is a prima facie case for it and that the balance of convenience weighs in favour of granting it: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 622-3, 625 (Kitto, Taylor, Menzies and Owen JJ), cited with approval in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 82 [65] (Gummow and Hayne JJ). The inquiries are related, in that relief might be granted in respect of a weak prima facie attended by a balance of convenience that strongly favours it: Bullock v Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464, 472 (Woodward J, with whom Smithers and Sweeney JJ relevantly agreed).

23    Presently, Mr Cummings identifies his prima facie case as follows (citations omitted; errors original):

22.    The Applicant submits that there is a serious question to be tried as to whether the Respondents, through their agents, have engaged in a pattern of conduct that not only breaches their non-delegable duty of care, but does so as a strategy to frustrate the Court's jurisdiction. The Applicant's affidavit provides compelling evidence that raises a prima facie case of negligence and abuse of process.

23    The Respondents' duty of care to provide a safe and secure environment for all detainees is well-established, and this duty requires the Respondents to act with due care and to protect detainees from foreseeable harm. Reports from the Australian Human Rights Commission and the Commonwealth Ombudsman have repeatedly documented systemic failures in safety protocols and living conditions within immigration detention facilities, placing the Respondent on notice of these issues.

24    The Respondents’ duty of care requires it to provide a safe and secure environment for all detainees and to act with due care when managing their health and welfare. The Applicant submits that this duty has been demonstrably breached through a series of escalating and foreseeable failures. These breaches are not isolated incidents but a pattern of wilful disregard that directly resulted in the Applicant suffering the assault, and creates a continuous risk of grave harm.

25    It is submitted that the Respondents’ breaches include:

a.    Failing to provide adequate first aid or possible concussion treatment to the Applicant after he was assaulted and struck unconscious by another detainee.

b.    Failing to provide safe and secure accommodation, as evidenced by the Applicant being forced to seek refuge at night in public areas of the facility, and the pervasive and escalating violence within the unit.

c.    Failing to prevent detainees from smoking within the facility, which contributed to an unhealthy environment.

d.    Wilfully disregarding the pervasive and escalating issue of drug trafficking within the facility, including a failure to intervene in the ongoing supply of drugs to detainees, which has contributed to a volatile and dangerous environment.

e.    Denying the Applicant appropriate medical care after his foot injury, forcing him to walk to the medical unit, climb to a top bunk while injured, and denying him pain medication.

f.    Engaging in a pattern of psychological coercion by repeatedly mocking the Applicant’s legal efforts and stating that he had “no chance”, creating significant mental distress and causing undue interference with his legal rights.

24    A curious feature of the way that the application was advanced was that Mr Cummings’s prospects of obtaining the relief for which he moves in his originating application were not addressed. The prima facie case enquiry instead focused upon whether the respondents’ conduct could be impugned as unlawful (whether in tort or otherwise) and was apt potentially to frustrate or extinguish the subject matter upon which the primary matter is to proceed.

25    That was, perhaps, an unconventional approach. The prima facie case that ought to be established in order to justify interlocutory injunctive relief ordinarily aligns with a basis or bases upon which an applicant claims an entitlement to final relief. That is so even when, by their nature, the interlocutory orders that are sought are directed solely to preserving the subject matter of the substantive application: see MZAPC, 496 [27] (Gageler CJ, Gordon, Gleeson And Jagot JJ), citing CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825, [80] (Mortimer J). To the extent that it is contended that a prima facie case (for final relief) will be undermined by conduct that threatens to frustrate the court’s jurisdiction, that conduct falls to be assessed in the context of considering the balance of convenience.

26    For present purposes, it doesn’t much matter. Even assuming that he can establish a prima facie case for the final relief for which he moves on his originating application (and that the central question remaining for consideration presently is whether the balance of convenience favours the grant of an injunction), I am not persuaded that the preservation of the subject matter of this proceeding is imperilled to a point that warrants interlocutory injunctive relief. Insofar as concerns the analysis of that issue (that is, the connection between the interlocutory relief that is sought and the need to preserve the subject matter of the proceeding), I will engage the nomenclature of the submissions that were advanced: namely, does there exist a serious question to be tried that the respondents’ conduct is such as to subvert the court’s jurisdiction? It should nevertheless be borne in mind that, for the reasons just summarised, there is at least some reason to doubt that that nomenclature is consistent with legal principle.

CONSIDERATION

27    With due respect, Mr Cummings’s application proceeds more as an appeal to emotion than upon evidence. It relies upon the court’s accepting as established the vast array of value-laden opinions that Mr Cummings and his advisers have expressed in his affidavit and submissions. For example, the suggestion that there was a “failure” to provide “adequate first aid or possible concussion treatment” presupposes that there was some need to. Perhaps there was (as to which, I note Mr Cummings’s assertion that he experienced a loss of consciousness after the assault); but there may just as equally be other circumstances that incline to the contrary view, including that Mr Cummings may have refused such care when offered to him (which he accepts as plausible). Even if it is established, how that once-off failure might assist in exposing some deliberate or reckless indifference toward Mr Cummings’s health is not apparent; and nor is it clear that it might do so to a point suggestive of some imperilling of the court’s jurisdiction in the substantive matter. The court should not indulge the speculation that the submission necessarily invites.

28    Likewise, the suggestion that the respondents (or somebody) has failed to provide Mr Cummings with “safe and secure accommodation” is unhelpfully vague. Mr Cummings’s evidence is that, on first being detained, he twice slept in a laundry area because of odours in his accommodation. Failing to prevent detainees from smoking is not nearly sufficient to establish even a prima facie case that the respondents are engaged, deliberately or otherwise, in conduct that threatens to frustrate the exercise of the court’s jurisdiction. In any event, there is no suggestion that that issue (if not rectified promptly) stood unaddressed after his third day in the facility, such that urgent interlocutory relief is now warranted.

29    There is then an unparticularised reference to “pervasive and escalating violence” (which, with due respect, counsel for Mr Cummings was unable persuasively to establish at the hearing of the application). It remains unclear how that submission is founded evidentially. It is one thing to accept that Mr Cummings considers—perhaps with good reason—that there are aspects of his detention that are below a standard upon which he might reasonably be entitled to insist. It is quite another to accept that they accumulate to a point reflective of “pervasive and escalating violence” that threatens somehow to “frustrate the Court’s jurisdiction”. That connection is simply not apparent.

30    The suggestion that the respondents have “wilfully” disregarded “the pervasive and escalating issue of drug trafficking within the facility” is hard to comprehend. Save that Mr Cummings deposes baldly to detainees being “fuelled by drugs”, it is unclear what evidential basis might exist to support that assertion. I do not consider that the suggestion stands a basis to conclude, even on a prima facie case basis, that there exists some threat to the court’s authority or ability to determine the proceeding before it.

31    Likewise, the suggestion that Mr Cummings was, a couple of months ago and in connection with his foot injury, denied “appropriate medical care” is unhelpfully vague. How that might be said to warrant urgent interlocutory relief now is unclear; but even assuming that it is advanced as an example of conduct that (intentionally or otherwise) is liable to overcome his will to remain in Australia and prosecute his appeal, it is simply not clear how it might do so. There is no evidence of what “appropriate medical care” at the time was; and therefore, no point of comparison against the care that was, plainly, provided to him. Nor is it clear what further care Mr Cummings sought. Save to note Mr Cummings’s evidence that he was “…made to walk to the medical unit, aggravating my injury”, the assertion is devoid of particulars.

32    So too is the suggestion that the respondents have engaged “in a pattern of psychological coercion”. Respectfully, “psychological coercion” appears, particularly in the absence of any expert opinion, to be an unhelpfully loaded assertion. The idea that the court might simply accept it as a fair description of the interactions that Mr Cummings has had is ambitious to say the least. Even accepting that Mr Cummings has felt some pressure to do something that might not be in his interests or that might adversely bear upon the present application in some way, it is clear enough that he has withstood it. If the suggestion is that he is especially vulnerable to pressure of that kind, or that his “mental distress” is such as might relieve him of his capacity to withstand it going forward, that is not apparent on the evidence (even assuming that it might be relevant). The suggestion rises no higher than assertion.

33    Mr Cummings goes further still. He maintains that “these breaches” represent a “pattern of wilful disregard that directly resulted in the assault” that he suffered on Wednesday, 10 September 2025. That is a very serious allegation that the current state of the evidence does not nearly support. It is to be assumed that the charge of “wilful disregard” pertains to Mr Cummings’s safety; but, again, the evidence does not come close to establishing that (and nor, therefore, that it might portend some frustration of the court’s jurisdiction), even on a prima facie case basis.

34    That there may have been moves afoot to return Mr Cummings’s assailant back into his “unit” seems to be the high-water mark of his case; but it is now accepted that that is not something that is intended. Even were it otherwise, such evidence as there is before me now falls well short of suggesting that the assault was anything but an aberration. Perhaps history might record otherwise; but why the court should conclude that the other detainee’s return to Mr Cummings’s unit presents as some “real and present danger of irreparable harm” to him is not established.

35    The evidence is not capable of establishing even a prima facie case that the respondents have indulged in negligent or intentional breaches of duties (whatever their sources might be) so as to imperil or frustrate the exercise of the court’s jurisdiction in this matter; and, thereby, to warrant interlocutory injunctive relief. It most certainly does not establish a prima facie case that they have done so in a way that is apt to constitute, as Mr Cummings put it (albeit in a way that might have been resiled from at the hearing), “contempt of the Court’s process”. That submission is unhelpfully speculative and loaded; and, to the extent that it was persisted with, I reject it.

36    It might be accepted that Mr Cummings’s detention has been attended by unpleasant events, which I should not wish to downplay. However, even taken at its highest, the evidence does not substantiate that those events are such as inherently to overbear Mr Cummings’s will to remain in Australia and prosecute his application. To put it another way, I am not satisfied that the events upon which Mr Cummings relies—whether viewed alone or taken together—suggest that there is any real or significant risk to the court’s capacity to exercise its jurisdiction in the primary proceeding if injunctive relief is not granted in the form for which Mr Cummings now moves.

Balance of convenience

37    Having so concluded—and subject to the observation made above about the nomenclature that has been employed throughout these reasons—it is unnecessary that I should venture any opinion about where the balance of convenience lies, save to accept that it would not be difficult for Mr Cummings to establish that he stands to suffer greater prejudice if injunctive relief is not granted than that which the respondents might endure if it were. For obvious reasons, though, that point is moot.

Assignment of a pseudonym

38    Mr Cummings’s application for relief to protect the disclosure of his identity in court processes and documents can be swiftly addressed.

39    By his written submissions, Mr Cummings asserts that, by operation of s 37AF of the FCA Act, the court “…has the power to make such an order where it is necessary to secure the proper administration of justice”. That is not entirely so. The court has a discretion to make orders that might serve to protect a litigant’s identity from disclosure if it considers that it is necessary to do so to prevent prejudice to the proper administration of justice. As countless authorities have noted, the use of the word “necessary” is significant: see, for example, The Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) (2020) 275 FCR 377, 379 [9] (Allsop CJ, Wigney and Abraham JJ).

40    Presently, Mr Cummings asserts that his public identification in the present matter “…will identify him to the Respondents’ agents, expose him to further risk within the detention system, or prejudice him in his broader migration litigation”. Respectfully, those bald assertions are not borne out by the evidence. The court has no basis upon which to identify any potential prejudice to the proper administration of justice that might inhere in the disclosure of Mr Cummings’s identity; and, therefore, no basis for concluding that there is any such prejudice that necessitates the relief for which he moves. Even assuming that the administration of justice—or Mr Cummings himself—might be imperilled in some way by the disclosure of his identity in court processes or documents, it has not been explained how relief under Part VAA of the FCA Act would serve to prevent that. If those dangers exist, they (or certainly most of them) would appear to exist independently of any prospect of identification; and an order to protect against that would serve no purpose in preventing (which is to say, would not be necessary to prevent) prejudice to the administration of justice. In any event, the core proposition (that is to say, the existence of the peril) is not borne out by the evidence.

41    There is simply no basis apparent on the evidence for the making of an order under Part VAA of the FCA Act.

Disposition

42    For the reasons identified above, I considered that none of the relief for which Mr Cummings moved should be granted. That being so, it was appropriate to (and I did) dismiss the interlocutory application with costs.

Associate:

Dated:    19 September 2025