Federal Court of Australia

KPA25 v Minister for Immigration and Citizenship [2025] FCA 1188

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an interlocutory injunction be dismissed.

2.    The applicant pay the first respondent’s costs of the interlocutory application.

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

REASONS FOR JUDGMENT

(Delivered Ex Tempore and Revised from Transcript)

RANGIAH J:

1    The applicant has applied for leave to appeal against a judgment of the Federal Circuit and Family Court of Australia (Div 2) (FCFCOA) delivered on 17 September 2025, dismissing his application for urgent injunctive relief to restrain the first respondent (the Minister) from removing him from Australia until the determination of his substantive proceeding.

2    The Minister initially proposed to remove the applicant at 10.00 am today, Friday, 19 September 2025 and now proposes to do so on Sunday, 21 September 2025. The applicant presently seeks an urgent interlocutory injunction to restrain the Minister from removing him from Australia until his application for leave to appeal is determined.

3    The applicant is a citizen of Sri Lanka. On 23 June 2017, he applied for a Safe Haven Enterprise Visa. On 8 July 2021, a delegate of the Minister made a decision to refuse to grant the visa (the Refusal Decision) and the matter was subsequently referred to the Immigration Assessment Authority (the Authority) for review. On 24 August 2021, the Authority affirmed the delegate’s decision. The Authority’s decision was sent by post and email to the applicant.

4    At that time, the applicant did not make any application for judicial review of the Authority’s decision. He was eventually detained on 20 February 2025 under s 189(1) of the Migration Act 1958 (Cth). After he was detained, the applicant made several unsuccessful applications for a bridging visa, but still did not make any application challenging the Authority’s decision.

5    On 9 September 2025, the applicant was notified that he would be removed from Australia on 17 September 2025.

6    On 12 September 2025, the applicant filed an application in the FCFCOA for an extension of time to seek judicial review of the Authority’s decision. The applicant also sought an interlocutory injunction to restrain the Minister from removing the applicant from Australia until the determination of his application or further order.

7    The application for the interlocutory injunction was dismissed by the primary judge on 17 September 2025, after a hearing at which the applicant was represented by counsel.

8    Late on 18 September 2025, the applicant filed in this Court his application for leave to appeal against the primary judgment and an urgent interlocutory injunction restraining the Minister from removing him from Australia.

9    I interpolate to say that although what the applicant filed was a Notice of Appeal, he accepts that he requires leave to appeal. I have treated the Notice of Appeal as an application for leave to appeal.

10    In Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5; 421 ALR 483 (MZAPC), the plurality held at [23]:

No court has an unlimited power to grant an interlocutory injunction and an order “must be framed so as to come within the limits set by the purpose which [the order] can properly be intended to serve”. Further, the primary purpose of an interlocutory injunction remains “to keep matters in statu quo [sic] until the rights of the parties can be determined at the hearing of the suit”. The condition precedent remains that “a plaintiff seeking an interlocutory injunction must be able to show sufficient colour of right to the final relief, in aid of which interlocutory relief is sought”, the usual description of the sufficiency of that colour of right being the establishment of a serious question to be tried or a prima facie case.

11    In order for the applicant to obtain the interlocutory injunction sought, it is necessary for him to demonstrate that there is a serious question to be tried, which requires that there is a sufficient likelihood of success to justify preserving the status quo pending the trial; and that the balance of convenience favours the granting of the injunction: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19] and [65]; Frigger v Trenfield [2019] FCA 1746 at [6]; Merriman v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 834 at [15].

12    Under s 24(1) of the Federal Court of Australia Act 1976 (Cth), the Court has jurisdiction to hear and determine appeals from judgments of the FCFCOA. However, under s 24(1A) an appeal may not be brought from an interlocutory judgment unless the Court or a judge grants leave to appeal.

13    The initial question is whether the applicant’s application for leave to appeal against the primary judgment has a sufficient likelihood of success to justify preserving the status quo by restraining the Minister from removing him.

14    The principles applicable to the grant of leave to appeal from an interlocutory decision were summarised by the Full Court in Deputy Commissioner of Taxation v Miraki [2022] FCAFC 96 at [5] as follows:

In general, the tests to be applied are: (a) whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong. The discretion to grant leave is not constrained by rigid rules. Leave to appeal has been granted where, for example, the questions posed for resolution on appeal “have general importance beyond the concerns of the parties”.

(Citations omitted.)

15    The primary judge delivered ex tempore reasons for judgment on 17 September 2025 that were then very promptly revised and published earlier today: see KPA25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1544.

16    The primary judge cited the passage from MZAPC at [23]. His Honour then continued:

32    An application to the Court for review of a decision of the Authority must be made within 35 days of the date of the Authority’s decision. That is set out in section 477(1) of the Act. In this case, the Authority made its Decision on 24 August 2021, and the time within which to make an application for review has expired almost four years ago. In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (Tu’uta Katoa), the High Court explained the exercise of the Court’s discretion under section 477(2) of the Act by reference to the corresponding provisions, in relation to the Federal Court of Australia, in section 477A(2).

33    The non-exclusive principles upon which an extension of time is to be granted are also set out in Hunter Valley Development Proprietary Limited v Cohen (1984) 3 FCR 344 at 348 to 349 and which were approved in Tu'uta Katoa and also Parker v The Queen [2002] FCAFC 133 at [6]. The principles are that an application for an extension of time is not to be granted unless it is proper to do so. The legislative time limits are not to be ignored. The applicant must show an acceptable explanation for the delay. It must be fair and equitable in the circumstances to extend time. Action taken by the applicant other than by way of making an application for review is relevant to the consideration of the questions whether an acceptable explanation for delay has been furnished, and any prejudice to the respondent in defending the proceeding that is caused by the delay is a material factor mitigating against the grant of an extension.

34    However, the mere absence of prejudice is not enough to justify the grant of an extension, and the merits of a substantial application are to be taken into account in considering whether an extension of time should be granted. The merits need not to be considered in detail but may be considered on a reasonably impressionistic basis.

35    It is with that test in mind that I consider that the prospects of an extension of time and the prospects of success in relation to that application are poor.

36    I am satisfied that the applicant may have been confused by the circumstances giving rise to the Decision, may well have been confused about the Decision itself and the consequences of the Decision, and that he did make attempts to contact the Authority shortly after the making of the Decision, and on a number of occasions thereafter as to his status. However, there is no adequate explanation for his conduct between the period from the making of the Decision in 2021 to him going into immigration detention in February 2025 and nor do I find that the explanation given by him in his affidavit, sworn 12 September 2025, are convincing or persuasive.

37    Despite the attempts by Ms Caldwell to supplement that evidence by way of information and belief, I am also not satisfied that the explanations given by the applicant for his subsequent conduct during the period February 2025 until 12 September 2025 are convincing or persuasive, or a reason why an extension of time is likely to be granted. In the circumstances of this case, the delay is extreme and has not been adequately explained by persuasive evidence to support the exercise of the Court's discretion to grant a further indulgence.

38    Further, in relation to the apparent merits of the application for judicial review, I am also not satisfied that there are sufficient prospects or that it is likely to succeed on the grounds of unreasonableness. As Judge Riley observed in the decision to which I was referred by senior counsel for the applicant, each case depends on its own facts and the facts in that case were similar to the facts in this case, but there were substantially different reasons as to why the Authority was found to have acted unreasonably in the circumstances. In this case, an indulgence was sought by the applicant and originally granted by the Authority, and then a further indulgence was sought but without sufficient or any explanation as to any period of time required by the applicant or when the applicant would be in a position to respond meaningfully to the Authority.

39    The Authority had an obligation to decide a review on a fast-tracked basis and the rules in relation to the application of natural justice and procedural fairness are limited under the Act in respect of fast-tracked reviews undertaken by the Authority. In the circumstances of this case, I do not regard that there is a strong prospect that the applicant would succeed in establishing that the Decision of the Authority was unreasonable. That goes against the likelihood or prospect of success of an application for an extension of time; however, my primary reason for finding that there is no serious question to be tried is that the time or the period of delay by the applicant, which in my view has not been satisfactorily explained, is verging on extreme in the circumstances of this case and it is my view that there is no serious question to be tried in relation to an application for extension of time.

17    The applicant’s proposed grounds of appeal are as follows:

1.    The court erred in applying a too high a threshold in deciding that there was no serious question to be tried that there was a prima face [sic] case in the applicant’s judicial review application that the IAA’s decision was affected by legal unreasonableness.

2.    The court erred in its consideration of the case of Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 in erroneously reasoning that the applicant had submitted it was distinguishable. The submission the applicant made was that the evaluation of whether a decision manifests legal unreasonableness turns in each case on its own facts and the question should be left to the judge deciding the judicial review application.

3.    The court erred in applying too high a threshold in finding that there was no serious question to be tried that whether there was a prima face [sic] case in for an extension of time for the judicial review application.

4.    The court failed to consider that the applicant’s history of trauma and poverty offered an explanation for the delay in filing the judicial review application. The court failed to consider that a lack of access to legal services was an explanation for not pursuing his case earlier.

5.    In purporting to consider the balance of convenience, the court failed to consider the gravity of the consequences for the applicant in terms of the risk of being refouled to a country where he may be persecuted.

6.    In evaluating the case, the court required too high a level of evidence to be put on by the applicant for the urgent injunction which was unreasonable in circumstances where the applicant is in detention, does not speak English, is affected by trauma, poverty and confusion and the solicitor was obtaining urgent instructions via a telephone interpreter.

18    In his written submissions, the applicant states:

The substantive ground that was relied upon for the judicial review application before the primary judge was that the Immigration Assessment Authority’s (IAA) decision to refuse a second extension of time for two weeks was legally unreasonable.

19    The chronology of events before the Authority was that:

    The matter was referred to the Authority on 13 July 2021.

    The applicant emailed the Authority on 11 August 2021, seeking more time to obtain a lawyer and saying that his area was in lockdown. He was given an extension until 20 August 2021 to provide further information and/or lodge a submission.

    On 19 August 2021, a copy of the delegate’s Refusal Decision was sent to the email address that the applicant was using to email the Authority (the decision having already been emailed and posted to him on 9 July 2021).

    On 20 August 2021, the applicant sent an email to the Authority saying he needed another two weeks to go to a lawyer.

    That extension was refused by the Authority by reply email on 23 August 2021.

    On 24 August 2021, the Authority affirmed the delegate’s Refusal Decision.

20    In respect of his proposed first and third grounds, the applicant submits that the primary judge erred at [39] of the primary judgment by applying the wrong test for an interlocutory injunction. The applicant submits that his Honour was required to determine whether there was a serious question to be tried, but instead set up a test of whether there was a strong prospect that the applicant would succeed in establishing that the decision of the Authority was unreasonable.

21    I consider that the applicant’s submission takes that passage of the primary judgment out of context. It is apparent that the primary judge was aware that the first aspect of the test for granting an interlocutory injunction was whether there is a serious question to be tried (at [39]). It is also apparent his Honour understood that, in the context, that question depended upon the applicant’s prospects of obtaining an extension of time to seek judicial review of the Authority’s decision (at [38]).

22    The prospects of obtaining an extension of time, as the primary judge identified, depended upon evaluation of factors including the length and explanation for the delay and the merits of the proposed application for judicial review (at [33]-[34]). This required his Honour to assess the prospects of the applicant’s proposed ground that the decision to refuse him a further extension of time on 23 August 2021 was legally unreasonable.

23    The primary judge was also aware that in the assessment of whether an extension of time should be granted, there was an interplay between the length and explanation for the delay and the merits of the proposed case (at [34]-[35], [39]). In that respect, it may be noted that in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579, Kiefel CJ, Gageler, Keane and Gleeson JJ held at [18]:

However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.

(Citations omitted.)

24    The primary judge considered the explanation given by the applicant for his delay in challenging the Authority’s decision, finding (at [37]) that, “the delay is extreme and has not been adequately explained”. His Honour then went on (at [38]) to say he was not satisfied that there are, “sufficient prospects or that it is likely to succeed on the grounds of unreasonableness”. Then (at [39]), his Honour said that he did, “not regard that there is a strong prospect that the applicant would succeed in establishing that the decision of the Authority was unreasonable”.

25    It is apparent that the words “strong prospect” were applied to the prospect of the applicant obtaining an extension of time, rather than being a statement of the test for an interlocutory injunction. His Honour considered that, in light of the length of the delay and the absence of a satisfactory explanation, the applicant’s prospects of obtaining an extension of time were not sufficiently strong to allow a conclusion that there was a serious question to be tried in relation to the application for an extension of time. The applicant has not demonstrated a reasonably arguable case that his Honour applied the wrong test for the grant of an interlocutory injunction.

26    The applicant also submits that the primary judge erred in assessing the merit of the unreasonableness ground. The applicant submits that the circumstances of this case were very similar to the circumstances of CRW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 18 (CRW20) and that, accordingly, his Honour ought to have assessed the merits of the present case as being strong. However, his Honour (at [38]) distinguished CRW20. His Honour observed that this was the second extension sought by the applicant, in contrast to the position in CRW20. His Honour also considered there was no sufficient explanation as to the period of time required by the applicant or when the applicant would be in a position to respond meaningfully to the Authority. The applicant submits this finding was wrong because the applicant had asked in his email for a finite period of two weeks to find a lawyer. However, the applicant had not indicated when he would be in a position to provide further information or a submission to the Authority. Accordingly, there was no error in his Honour’s finding that the applicant had not explained when he would be in a position to respond meaningfully to the Authority.

27    The applicant has not demonstrated a serious question to be tried in respect of the first and third grounds of his proposed appeal.

28    The applicant did not make any submissions in respect of his proposed second ground of appeal.

29    In respect of his proposed fourth and sixth grounds, the applicant submits that in finding the explanation for his delay in challenging the Authority’s decision was not convincing or persuasive, the primary judge failed to consider the circumstances in which the applicant’s affidavit evidence of the reasons for that delay had been obtained and collated. The applicant submits that, accordingly, the finding was unreasonable.

30    The applicant had sworn an affidavit in which he explained, inter alia, that the Authority made its decision during the period of the COVID-19 lockdowns, that he did not receive any notification of the decision and that once the lockdown was over, he contacted a lawyer who advised him to seek Ministerial intervention. However, it is apparent from his affidavit that he did not seek further advice about the Authority’s decision until after he was detained in 2025.

31    The applicant’s lawyer, Ms Caldwell, swore an affidavit deposing to discussions with the applicant, in which the applicant provided further detail about his circumstances around the time of the Authority’s decision, his difficulties with English and his difficulties in obtaining a lawyer during COVID-19.

32    Ms Caldwell also explained that there were difficulties in communicating with the applicant and obtaining instructions while he was in immigration detention, that there were difficulties with interpreters and difficulties in communication because he claimed that his mental health was poor.

33    It may be noted that the only information that had been provided by the applicant to the Authority before it refused his request for an extension of time was that he wanted to find a lawyer and that he had not received the Refusal Decision letter.

34    The applicant submits that the primary judge should have concluded that if the applicant had more time he would have provided further evidence concerning the reasons for his delay. The applicant submits that it was an error for his Honour to fail to recognise that the quality of his explanation for the delay in challenging the Authority’s decision was affected by the applicant’s difficult circumstances.

35    The application before the primary judge was brought by the applicant on an urgent basis. His Honour was required to decide whether there was a serious question to be tried on the basis of the evidence that was presented by the applicant. His Honour was not required to speculate about whether the applicant’s explanation for his delay might have been better, or more cogent or more comprehensive if the applicant had more time to prepare his evidence, nor what any further explanation might have entailed. The applicant has not demonstrated any arguable case that the primary judge erred by failing to engage in such speculation.

36    In respect of his application for leave to appeal, I am not satisfied that the applicant has demonstrated that there is a reasonably arguable case that the decision of the primary judge is attended with sufficient doubt to warrant its reconsideration by the Full Court. Accordingly, I am not satisfied that there is a serious question to be tried.

37    If I had been satisfied that there was a serious question to be tried, I would have decided that the balance of convenience favoured granting an interlocutory injunction to restrain the removal of the applicant from Australia, in light of the respondent’s concession that the applicant would be caused irreparable harm.

38    In these circumstances, it is unnecessary for me to consider the applicant’s proposed fifth ground which concerns the primary judge’s assessment of the balance of convenience.

39    The application for an interlocutory injunction must be dismissed with costs.

40    The Court is grateful for the efficiency with which the application was conducted and the assistance provided by counsel and their instructing solicitors.

Associate:    

Dated:    25 September 2025