Federal Court of Australia

KVO25 v Secretary of the Department of Home Affairs [2025] FCA 1584

ORDERS

THE COURT ORDERS THAT:

1.    The originating application dated 11 November 2025 is dismissed for want of jurisdiction.

2.    The Respondent is given leave to uplift the affidavit of Nerys Anne Jones made 3 December 2025, and to re-file that document with the 16th, 17th, 22nd to 24th words of the first sentence of paragraph 15 redacted, on which the Respondent does not rely.

3.    Order 3 of the Orders made on 4 December 2025 is amended to add:

3.3    the text appearing in the most right hand column and the third most right hand column (including its title) and the four lines appearing immediately under the table, in Exhibit A1.

4.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), until 4:00pm AEDT on 11 December 2030, or further order, the disclosure (by publication or otherwise) of the following be prohibited on the ground that it is necessary to prevent prejudice to the interests of the Commonwealth in relation to national or international security:

(a)    in the affidavit of Nerys Anne Jones made 3 December 2025 filed in this proceeding:

(i)    the words in the first sentence of paragraph 15 appearing after “factors” (apart from the words in this sentence that are redacted in accordance with order 3);

(ii)    the last six words of the first sentence of paragraph 17;

(iii)    the last 11 words of the first sentence of paragraph 18; and

(b)    the first sentence of paragraph 36 of the respondent’s submissions on claim for interlocutory relief dated 4 December 2025;

(c)    the text appearing in the most right hand column and the third most right hand column (including its title) and the four lines appearing immediately under the table, in Exhibit A1.

5.    Order 4 of these Orders does not prevent disclosure to and between the following persons:

(a)    judges of this Court;

(b)    necessary Court staff (including transcription service providers);

(c)    the parties;

(d)    legal representatives of the parties instructed in the proceeding; and

(e)    Commonwealth officers acting in the course of their duties.

6.    The confidential unredacted affidavits of Nerys Anne Jones made 9 December 2025 and of Shan Strugnell made 9 December 2025 are returned to the Respondent’s legal representatives at the conclusion of the interlocutory hearing, subject to the undertaking of the Respondent’s legal representatives to make them available as required by the Court.

7.    The costs of this proceeding be dealt together with the costs in proceeding VID1602/2025.

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

ORDERS

THE COURT ORDERS THAT:

1.    The originating application dated 11 November 2025 is dismissed for want of jurisdiction.

2.    The Respondent is given leave to uplift the affidavit of Nerys Anne Jones made 3 December 2025, and to re-file that document with the 16th, 17th, 22nd to 24th words of the first sentence of paragraph 15 redacted, on which the Respondent does not rely.

3.    Order 3 of the orders made on 4 December 2025 is amended to add:

3.3    the text appearing in the most right hand column and the third most right hand column (including its title) and the four lines appearing immediately under the table, in Exhibit A1.

4.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), until 4:00pm AEDT on 11 December 2030, or further order, the disclosure (by publication or otherwise) of the following be prohibited on the ground that it is necessary to prevent prejudice to the interests of the Commonwealth in relation to national or international security:

(a)    in the affidavit of Nerys Anne Jones made 3 December 2025 filed in this proceeding:

(i)    the words in the first sentence of paragraph 15 appearing after “factors” (apart from the words in this sentence that are redacted in accordance with order 3);

(ii)    the last six words of the first sentence of paragraph 17;

(iii)    the last 11 words of the first sentence of paragraph 18; and

(b)    the first sentence of paragraph 36 of the respondent’s submissions on claim for interlocutory relief dated 4 December 2025;

(c)    the text appearing in the most right hand column and the third most right hand column (including its title) and the four lines appearing immediately under the table, in Exhibit A1.

5.    Order 4 of these Orders does not prevent disclosure to and between the following persons:

(a)    judges of this Court;

(b)    necessary Court staff (including transcription service providers);

(c)    the parties;

(d)    legal representatives of the parties instructed in the proceeding; and

(e)    Commonwealth officers acting in the course of their duties.

6.    The confidential unredacted affidavits of Nerys Anne Jones made 9 December 2025 and of Shan Strugnell made 9 December 2025 are returned to the Respondent’s legal representatives at the conclusion of the interlocutory hearing, subject to the undertaking of the Respondent’s legal representatives to make them available as required by the Court.

7.    The costs of this proceeding be dealt together with the costs in proceeding VID1601/2025.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application for an interlocutory injunction is dismissed.

2.    Any documents that have been filed, and any orders that have been made, in proceedings VID1476/2025 FZRM v Secretary of the Department of Home Affairs are taken to have been filed or made in these proceedings.

3.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), until 4:00pm AEDT on 11 December 2030, or further order, the disclosure (by publication or otherwise) of the following material be prohibited on the ground that it is necessary to prevent prejudice to the interests of the Commonwealth in relation to national or international security:

•    the material identified in Order 4 of orders made on 11 December 2025 in proceeding VID1476/2025.

4.    Order 3 of these Orders does not prevent disclosure to and between the following persons:

(a)    judges of this Court;

(b)    necessary Court staff (including transcription service providers);

(c)    the parties;

(d)    legal representatives of the parties instructed in the proceeding; and

(e)    Commonwealth officers acting in the course of their duties.

5.    The Applicant pay the Respondents’ costs of and incidental to the interlocutory application, to be assessed if not agreed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application for an interlocutory injunction is dismissed.

2.    Any documents that have been filed, and any orders that have been made, in proceedings VID1474/2025 KVO25 v Secretary of the Department of Home Affairs are taken to have been filed or made in these proceedings.

3.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), until 4:00pm AEDT on 11 December 2030, or further order, the disclosure (by publication or otherwise) of the following material be prohibited on the ground that it is necessary to prevent prejudice to the interests of the Commonwealth in relation to national or international security:

•    the material identified in Order 4 of orders made on 11 December 2025 in proceeding VID1474/2025.

4.    Order 3 of these Orders does not prevent disclosure to and between the following persons:

(a)    judges of this Court;

(b)    necessary Court staff (including transcription service providers);

(c)    the parties;

(d)    legal representatives of the parties instructed in the proceeding; and

(e)    Commonwealth officers acting in the course of their duties.

5.    The Applicant pay the Respondents’ costs of and incidental to the interlocutory application, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

HILL J:

A.    introduction

1    The Applicants in these proceedings (who I will refer to as KVO25 and FZRM) are seeking prohibition and injunctions to prevent Commonwealth officials from applying, for the purposes of s 76AAA of the Migration Act 1958 (Cth), for the Applicants to be granted permission by the Republic of Nauru to remain and enter that country. This judgment deals with the applications for interlocutory injunctions to that effect.

2    For the following reasons, I refuse the applications for interlocutory injunctions.

3    Evidence: KVO25 relies on two affidavits of Jazmine Elmolla affirmed on 11 November 2025 and 9 December 2025, and FZRM relies on two affidavits of Andrea Main affirmed on the same dates.

4    The Respondent parties in each proceeding (who for convenience I will refer to as the Commonwealth) rely on an affidavit of Nerys Jones affirmed on 3 December 2025, and an affidavit of Jonathon Hutton affirmed on 3 December 2025 (which are in the same form in each proceeding).

B.    background

B.1    Applicants

5    KVO25: KVO25 is an Afghan national, who has acquired brain impairment and significant cognitive disabilities. He arrived in Australia with his family in October 2006, on a Global Special Humanitarian Visa. KVO25’s visa was cancelled in 2017 under s 501(3A) of the Act and, in 2019, a delegate decided under s 501CA not to revoke the cancellation of that visa.

6    Protection visa application refused (Feb 2022): In 2021, KVO25 applied for a protection visa. On 3 February 2022, that application was refused, on the basis that KVO25 did not satisfy s 36(1C) of the Act (which refers to a person who, having been convicted by a final judgment of a particularly serious crime, is a danger to the community).

7    KVO25 released on a BVR (Nov 2023): On 10 November 2023, KVO25 was released from immigration detention as the holder of a Subclass 070 (Bridging (Removal Pending)) visa (BVR).

8    VLA submission (KVO25) (Sep 2025): On 29 September 2025, Victoria Legal Aid (VLA) sent the Minister for Home Affairs a letter, making a primary submission that it would be legally unreasonable for the Minister to request a Nauran visa for KVO25. That letter made further submissions in the alternative, to the extent that a visa were requested for KVO25.

9    FZRM: FZRM is a Malaysian national, who has been diagnosed with antisocial personality disorder, schizophreniform disorder, and Cluster A personality traits. He arrived in Australia in October 2012, on an Electronic Travel Authority (Subclass 976) visa. In 2014, FZRM pleaded guilty to various offences and was sentenced by the County Court of Victoria to nine years’ imprisonment.

10    Protection visa application refused (Aug 2024; Apr 2025): On 1 July 2022, FZRM applied for a protection visa. On 14 August 2024, a delegate refused that application, on the basis that FZRM did not satisfy s 36(1C) of the Act. That decision was affirmed by the Administrative Review Tribunal on 10 April 2025.

11    FZRM released on a BVR (Aug 2024): On 14 August 2024, FZRM was released from immigration detention on a BVR which contained monitoring conditions. He was granted a further BVR on 6 November 2024, without the monitoring conditions.

12    VLA submission (FZRM) (Oct 2025): On 24 October 2025, VLA sent the Minister a letter, again making a primary submission that it would be legally unreasonable for the Minister to request a Nauruan visa for FZRM, and further submissions in the alternative in the event that a request was made.

13    Applicants are in “BVR cohort”: A protection finding has been made in respect of each Applicant in respect of their country of origin, which means there is no duty under s 198 to remove the Applicants to that country: see Act, s 197C(3). However, as noted, each Applicant has been refused a protection visa, because they do not satisfy s 36(1C) of the Act.

14    Since NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 280 CLR 137, a non-citizen cannot be detained in immigration detention if there is no real prospect of removing him or her from Australia in the reasonably foreseeable future: see YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40; (2024) 99 ALJR 1 at [11] (Gageler CJ, Gordon, Gleeson and Jagot JJ). The Applicants are part of this cohort, which is why each has been granted a BVR.

15    Interim injunctions (Nov 2025): The Applicants initially sought urgent interim injunctions to prevent Commonwealth officials from making a request to Nauru for the purposes of s 76AAA of the Act. That application came before me as duty judge on 11 November 2025. I granted interim injunctions on that date, to operate until this hearing of the interlocutory application.

B.2    Legislative framework

16    Amendments to the Act, new ss 76AAA, 198AHAA, 198AHB (Dec 2024; Sep 2025): New ss 76AAA and 198AHB were added to the Act by the Migration Amendment Act 2024 (Cth), with effect from 5 December 2024. Those provisions were then amended, and new s 198AHAA added, by the Home Affairs Legislation Amendment (2025 Measures No. 1) Act 2025 (Cth), which applies to an exercise of power before, on or after commencement on 6 September 2025 (Sch 1, item 9). In their current form, these sections provide as follows.

17    Cessation of certain bridging visas (s 76AAA): Section 76AAA provides, in effect, that a BVR will cease to be in effect if the non-citizen has permission to enter a foreign country, granted by a country that is party to a “third country reception arrangement” within the meaning of s 198AHB.

    By s 76AAA(1), that section applies in relation to a non-citizen if:

(a)    the non‑citizen holds a BVR; and

(b)    the non‑citizen “has permission (however described), granted by a foreign country, to enter and remain in that country”; and

(c)    the foreign country is a party to a third country reception arrangement (within the meaning of s 198AHB) that is in force.

    However, by s 76AAA(1)(d), s 76AAA(1) does not apply if:

(i)     the non‑citizen has made a valid application for a protection visa that has not been finally determined;

(ii)     the non‑citizen could not be removed to the foreign country because of [s] 197C(3) if the non‑citizen were an unlawful non‑citizen;

(iii)     the non‑citizen is a child under 18.

    The Minister must give the non-citizen notice that s 76AAA applies in relation to the non-citizen, either orally or in writing, as soon as reasonably practicable after this section starts to apply in relation to the non‑citizen (s 76AAA(2)-(3)). The rules of natural justice do not apply to the giving of this notice (s 76AAA(5)).

    Despite any other provision of the Act or regulations, the BVR ceases to be in effect immediately after the non-citizen is taken to have received the notice (if notification is given by a method specified in s 494B), or otherwise when the non-citizen receives the notice (s 76AAA(4)).

18    Power to take action in relation to arrangements (s 198AHB): Section 198AHB confers power on the Commonwealth Executive to take certain actions if the Commonwealth enters into a “third country reception arrangement” with a foreign country.

    By s 198AHB(1), that section applies if the Commonwealth enters into an arrangement with a foreign country (called a third country reception arrangement) in relation to the removal of non‑citizens from Australia and their acceptance, receipt or ongoing presence in the foreign country.

    By s 198AHB(2), the Commonwealth may do all or any of the following:

(a)     take, or cause to be taken, any action (not including exercising restraint over the liberty of a person) in relation to the third country reception arrangement or the third country reception functions of the foreign country;

(b)     make payments, or cause payments to be made, in relation to the third country reception arrangement or the third country reception functions of the foreign country;

(c)     do anything else that is incidental or conducive to the taking of such action or the making of such payments.

    Section 198AHB(2) is intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action (s 198AHB(3)). “Third country reception functions” of a foreign country are defined in s 198AHB(5) to mean:

the implementation of any law or policy, or the taking of any action, by that country (including, if the foreign country so decides, exercising restraint over the liberty of a person) in connection with the role of that country as a country which has agreed to the acceptance, receipt or ongoing presence of persons who are not citizens of that country, whether the implementation or the taking of action occurs in that country or another country.

19    Natural justice does not apply in relation to arrangements (s 198AHAA): Section 198AHAA excludes the rules of natural justice in relation to the Commonwealth entering into a third country reception arrangement with a foreign country, and in relation to doing a thing in relation to a third country reception arrangement.

    By s 198AHAA(1), the rules of natural justice do not apply to an exercise of the executive power of the Commonwealth to (a) enter into a third country reception arrangement with a foreign country; or (b) do anything preparatory to entering into a third country reception arrangement with a foreign country.

    By s 198AHAA(2), the rules of natural justice do not apply to the doing of a thing in relation to a third country reception arrangement with a foreign country, including in relation to the third country reception functions of a foreign country (as defined in s 198AHB(5)). The notes provide the following examples of things done in relation to a third country reception arrangement:

(a)    the things mentioned in subsection 198AHB(2);

(b)    an officer of the Department applying for a non‑citizen to be granted permission by a foreign country to enter and remain in that country for the purposes of section 76AAA.

    By s 198AHAA(3), it does not matter whether the Commonwealth does this thing by exercising its executive power, or any of the Commonwealth, the Minister (or delegate of the Minister), or an officer of the Department do the thing by exercising statutory power under a provision of the Act.

B.3    Third country reception arrangement with Nauru

20    Negotiations with Nauru (Sep 2024-): Ms Jones states in her affidavit that the Australian Government and the Government of Nauru have been negotiating a third country reception arrangement for the potential resettlement to Nauru of members of the cohort of people with BVRs.

21    Interim arrangement (Feb 2025): On 12 February 2025, Australia and Nauru entered into an interim third country reception arrangement.

22    Australia-Nauru MOU (Aug 2025): On 29 August 2025, the Australian Government entered into a memorandum of understanding (MOU) with Nauru relating to the resettlement of a broader cohort of non-citizens residing in Australia who cannot be returned to their home country. In outline:

    Australia and Nauru commit to upholding the intent and spirit of the MOU to ensure that support is provided for all persons accepted by Nauru under the MOU to fully settle and integrate as part of the Nauruan population during their residence on Nauru (cl 5.1.1).

    Australia and Nauru acknowledge, accept and commit to the Residence Framework in Sch 1 of the MOU (cl 5.1.2).

23    The Residence Framework in Sch 1 of the MOU deals with general settlement process (cl 2), legal framework for Settled Persons (cl 3), support for Settled Persons (cl 4), and ceasing to be a “Proposed Person” or “Settled Person” (cl 5).

    Under the general settlement process, Australia will notify Nauru that a person is a “Proposed Person”. Nauru will accept the Proposed Person identified by Australia without any reservation in age, past offences, health conditions or other characteristics; except in exceptional circumstances where the Proposed Person may pose a serious and immediate risk to the public health or national security of Nauru. Before the Proposed Person arrives in Nauru, and following receipt of an application by an Australian official, Nauru will promptly grant the Proposed Person a Long Stay visa to enter and remain in Nauru (Sch 1 cl 2.1.1(a), (c)-(d) and (g)).

    Under the legal framework for Settled Persons, Nauru commits to maintaining a robust legal framework and conducting all of its operations at a standard which meets or exceeds the conditions set out in cl 3.1.1 of Sch 1 for the treatment of Settled Persons on Nauru. Those conditions include that Settled Persons “will be treated in accordance with Nauru’s international legal obligations, including relevant obligations under international human rights laws” (Sch 1 cl 3.1.1(a)). By cl 3.1.2 of Sch1, Nauru acknowledges and accepts that it will not (among other things):

a.    send or return a Settled Person to another country where the Settled Person has a well-founded fear that his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership [of] a particular group or political opinion

b.    send or return a Settled Person to another country where there is a real risk that the Settled Person will be subjected to torture, cruel, inhumane or degrading treatment or punishment, arbitrary deprivation of life or the imposition of the death penalty

c.    send a Settled Person to another country if there is a real risk of chain refoulement of the Settled Person … .

    Under Support for Settled Persons, Nauru commits to providing support to all Settled Persons to achieve minimum outcomes in line with Nauruan standards of living (Sch 1 cl 4.1.1).

24    Ms Jones states that Australia continues to negotiate with Nauru on the implementation of the MOU, which includes negotiating further agreements on various unresolved issues.

25    Nauruan regulations: On 12 February 2025, Nauru made the Immigration (Long Term Stay Visa) Regulations 2025 (Nauru). Those regulations relevantly provide:

    By reg 4, the Director of Immigration shall grant a “long term stay visa” to (a) a person or group of persons eligible for the visa pursuant to an arrangement entered into by Nauru with any other State for such person or persons to enter and remain in Nauru; and (b) where ordinarily, a visa would not be granted to the person to enter Nauru pursuant to any other classes of visa provided under Nauruan immigration law (reg 4(2)). The visa allows the holder unlimited multiple entry and exit to and from Nauru (reg 4(3)).

    By reg 5, an application for a visa shall be made to the Director and (relevantly) submitted by an official of a State, with which Nauru has an arrangement under reg 4 (reg 5(1)(a)).

    The duration of the visa shall be for a minimum period of 30 years (reg 7(1)).

    By reg 10, the Secretary for Justice and Border Control may at any time cancel a visa, where the visa holder (a) fails to return to Nauru within 12 months of his or her departure; or (b) is deceased.

    By reg 11, a visa application may be declined for an applicant if he or she is suffering from or has a history of contagious disease or any other disease which Nauru may declare that it might cause substantial harm or hardship to the Nauruan community.

26    Department’s assessment process for resettlement to Nauru: Since October 2023, Ms Jones has held the role of Senior Director of the Complex Case Management and Support Programs Branch in the Department. She has direct responsibility (among other things) for case management of the cohort of people on BVRs, and third country reception arrangement case identification and management.

27    Ms Jones states in her affidavit that, although the MOU enables a broad cohort of people to be considered for third country reception in Nauru, the Department has prioritised the holders (or future holders) of BVRs for consideration for removal to Nauru.

28    Ms Jones states that, within the BVR cohort, a triage process is conducted by the Director of BVR Case Management to assess the BVR cohort and identify BVR holders who are suitable for referral for consideration for removal to Nauru pursuant to the third party reception arrangement. This assessment also involves recommending that certain persons be “sidelined”. A person who is “sidelined” is not referred for consideration for removal to Nauru, and therefore is not under active consideration for removal. Ms Jones states that the assessment process takes account of a number of factors. A person is sidelined if they do not presently meet the factors for removal.

29    Applicants have been sidelined from consideration for removal: Ms Jones states in her affidavit that both of the Applicants have been assessed by the Director of BVR Case Management, and have been sidelined from consideration for removal to Nauru. Ms Jones has endorsed this recommendation. Ms Jones states that the effect of this decision is that the Applicants will remain on BVRs at this point in time, residing in the community. At the hearing, the Respondents produced (pursuant to a notice to produce) a document evidencing the Department’s decision.

30    Ms Jones states that cases are open to ongoing consideration, and cases may be re-assessed if circumstances change. However, based on the Applicants’ present circumstances, Ms Jones considers that it is not realistic that the assessments sidelining the Applicants would change for them in the reasonably foreseeable future.

31    Ms Jones states that, if the Applicants were to be re-assessed in the future, the Director of BVR Case Management would follow the assessment process summarised above. If the Director were to recommend that either or both of the Applicants be referred for consideration for removal to Nauru, and Ms Jones were to agree with that recommendation, then the matter would be referred for final endorsement. Only after final endorsement would an application for an entry permit to Nauru be progressed. A “Pre-Removal Clearance” would be undertaken before removing a person, which would assess (among other things) whether the person’s circumstances attract Australia’s international obligations.

C.    consideration

C.1    Jurisdictional issues

32    The Applicants initially sought relief directly in this Court, in proceedings VID1474/2025 and VID1476/2025. The Court only has jurisdiction in relation to a “migration decision” to the extent provided by s 476A of the Act. Relevantly to this case, a “migration decision” is a decision or purported decision of an administrative character made or proposed to be made under the Act (see definition of “migration decision” in s 5, read with the definitions of “privative clause decision” in s 474(2) and “purported privative clause decision” in s 5E).

33    Application for Nauruan visa is “migration decision”: For the following reasons, a decision or proposed decision by a Commonwealth officer to apply for permission from Nauru for a non-citizen to enter and remain that country (ie a Nauruan visa) is a “migration decision”.

    This decision or proposed decision is plainly of an administrative nature. The issue then is whether that decision or proposed decision is made “under” the Act.

    Although there is no express power to apply for a Nauruan visa, the act of applying for a Nauruan visa comes within s 198AHB(2)(a) of the Act because this is an action “in relation to” a third country reception arrangement. The MOU specifically contemplates that this action will be taken (Sch 1 cl 2.1.1(g)). This reflects the common position in TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540 at [142] (Moshinsky J) (noting that an appeal from this judgment has been removed into the High Court).

    It is true that the notes to s 198AHAA(2) refer separately to doing things mentioned in s 198AHB(2), and an officer applying for a Nauruan visa for the purposes of s 76AAA (as though the latter does not come within the former). However, this note (contained in a later-enacted provision) cannot alter the plain meaning of s 198AHB(2). Nothing in the purpose of s 198AHB (or s 198AHAA) suggests that s 198AHAA was intended somehow to narrow the scope of s 198AHB(2).

34    This decision or proposed decision therefore involves the exercise of a statutory power. That conclusion means it is not necessary to say anything about the availability of judicial review for the exercise of non-statutory executive powers, in relation to which the Commonwealth filed a notice of constitutional matter.

35    Section 476A does not confer direct jurisdiction on this Court with respect to this migration decision. It follows that proceedings VID1474/2025 and VID1476/2025 must be dismissed for want of jurisdiction.

36    Proceedings transferred from FCFCOA (s 476A(1)(a)): This Court does have jurisdiction in relation to a migration decision if the Federal Circuit and Family Court of Australia (FCFCOA) (Div 2) transfers a proceeding in relation to the decision to this Court, and this Court confirms the transfer (see Act s 476A(1)(a)). Here, proceedings MLG4352/2025 and MLG4353/2025 in respect of FZRM and KVO25, respectively, were transferred from the FCFCOA (Div 2), and that transfer was confirmed by this Court on 5 December 2025 (in proceedings VID1601/2025 and VID1602/2025, respectively).

37    The Court has jurisdiction under s 476A(1)(a) of the Act to determine proceedings VID1601/2025 and VID1602/2025, which raise the same arguments as the initial proceedings. To overcome any procedural difficulties, I made orders that documents filed and orders made in the initial proceedings VID1476/2025 and VID1474/2025 be treated as filed and made in VID1601/2025 and VID1602/2025, respectively.

38    Prior non-statutory decision? The Applicants contend in their reply submissions that the MOU reveals that there is a separate, non-statutory decision that occurs before the Commonwealth applies for a Nauruan visa; namely, that the Commonwealth notifies Nauru that a person is a “Proposed Person” (see MOU Sch 1 cl 2.1.1(a)).

39    The only significance of this point is whether this decision would come within the exclusion of procedural fairness in s 198AHAA(2). The Court already has jurisdiction to determine the substantive issues between the parties (by reason of the transferred proceedings), and the arguments against this decision to notify Nauru that a person is a “Proposed Person” would be the same as the arguments against a decision to apply for a Nauruan visa. The Applicants contend that it is arguable that the taking of this step is not caught by s 198AHAA(2), and therefore is subject to the usual requirements of procedural fairness.

40    In my view, there is no viable argument that the taking of this step would fall outside s 198AHAA(2). That provision applies to the doing of a thing “in relation to a third country reception arrangement”, and it does not matter whether a thing is done in the exercise of non-statutory executive power, or statutory power (see s 198AHAA(3)). To take a step specifically contemplated by the MOU (that is, notifying Nauru that a person is a “Proposed Person”) is plainly to do an action in relation to the arrangement with Nauru. For the same reason, this step is an exercise of statutory power, under s 198AHB(2)(a) of the Act, and therefore a “migration decision”.

41    Contrary to the Applicants’ submissions, there is no analogy between this step, and prior steps taken by Departmental officers to inform the Minister in the exercise of the Minister’s personal powers, which are non-statutory in nature (as considered in cases like Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213; (2021) 288 FCR 23 and GMS24 v Commonwealth [2025] FCAFC 170). In those cases, the relevant provisions conferred power on the Minister personally, so that prior steps by Departmental officers could not be sourced in that power. Here, by contrast, s 198AHB(2) confers power on “the Commonwealth” to take actions in relation to a third country reception arrangement – there is no reason to attempt to narrow this power by reference to whether the step is “purely domestic” in its operation.

C.2    Should an interlocutory injunction be granted?

42    The substantive issue (to be considered in proceedings VID1601/2025 and VID1602/2025) is whether this Court should grant an interlocutory injunction to prevent Commonwealth officers from applying for a Nauruan visa for KVO25 or FZRM.

43    Interlocutory injunction – general principles: To obtain an interlocutory injunction, the Applicants are required to demonstrate: (a) they have a prima facie case or have raised a serious question to be tried in relation to the relief sought in the proceeding, to justify the grant of interlocutory relief pending the hearing and determination of the proceeding; and (b) the balance of convenience favours the grant of the interlocutory relief sought: see MCVN v Minister for Immigration and Citizenship [2025] FCA 1271 at [20] (Horan J), citing Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [19] (Gleeson CJ and Crennan J), [65] (Gummow and Hayne JJ). These two requirements involve related inquiries, and each should not be considered in isolation from the other: Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [67] (the Court).

44    Here, an injunction is sought to restrain a threatened infringement on the Applicants’ rights. The Applicants must therefore demonstrate (among other things) that what the Commonwealth is threatening to do “will cause imminent and substantial damage” to the Applicants, meaning that an injunction must not be granted prematurely: Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483; (2016) 243 FCR 17 at [479] (Bromberg J) (emphasis added), citing Apotex Pty Ltd v Les Laboratoires Servier (No 2) [2012] FCA 748; (2012) 293 ALR 272 at [46] (Bennett J). It is true (as the Applicants submit) that they do not have to show that an adverse decision will necessarily be made. However, it must be shown that there is some likelihood that the conduct will occur, sufficient to justify the Court’s intervention: Apotex at [42], [46] (3rd dot point). The Court will have regard to the degree of probability of apprehended injury, the degree of the seriousness of the injury, and the requirements of justice between the parties: Hurst v Queensland (No 2) [2006] FCAFC 151 at [21] (the Court).

45    No realistic prospect of Commonwealth applying for Nauruan visas for Applicants: A key factual point in these proceedings is that Ms Jones’ evidence is that the Applicants have been sidelined from consideration for removal to Nauru. Although this decision may be re-assessed if circumstances change, Ms Jones considers that, based on the Applicants’ present circumstances, it is not realistic that the assessment sidelining the Applicants would change for them in the reasonably foreseeable future: see [29]-[30] above. Contrary to the Applicants’ submission, this evidence is not inadmissible opinion: Ms Jones is well qualified to express an opinion about the likely course of decision-making, given her current role and her experience. This evidence is sufficiently detailed, and definite, to be satisfied that there is no more than a remote possibility that the Commonwealth would apply for a Nauruan visa on the Applicants’ behalf before the final hearing of this matter.

46    It follows that there is no imminent harm to the Applicants’ rights: to the contrary, the Commonwealth’s evidence is that there is no realistic prospect of the Commonwealth applying for a Nauruan visa for the Applicants in the reasonably foreseeable future. In other words, although the possibility cannot be ruled out absolutely, there is no real prospect at the time of these proceedings of the Applicants’ rights being infringed, certainly not before the final hearing of this matter. Any interlocutory injunction would therefore be premature. For the same reasons, the balance of convenience weighs significantly against granting any injunction.

47    Applicants will not have opportunity to challenge decision to apply? The Applicants contend, however, that a critical factor in assessing the imminence of harm is that any decision to apply for a Nauruan visa will be made without notice, and the Applicants will only be notified once Nauru has granted them a visa: see s 76AAA(2)-(3) and (5) of the Act. Therefore, the Applicants contend, they would be deprived of any effective remedy to challenge the decision to apply for a Nauruan visa, given an Australian court does not have jurisdiction to review any Nauruan decision-making process.

48    These points by the Applicants are well made, but they do not overcome the fact that, on the evidence before the Court, there is no realistic prospect of the Commonwealth applying for Nauruan visas for the Applicants in the reasonably foreseeable future. I would not assume that any challenge to the validity of a decision to apply for a Nauruan visa would necessarily be futile, once that decision is made and a Nauruan visa is granted. That said, there are large, difficult issues about whether any invalidity in the decision to apply for a Nauruan visa would affect the legality of subsequent steps by the Commonwealth; in particular, any decision to remove the Applicants to Nauru. And removal to Nauru would not follow automatically were the Applicants to be granted a Nauruan visa. Ms Jones’ evidence is that the Commonwealth would assess whether the removal of a person is consistent with Australia’s international obligations before removing a person to Nauru. The High Court has recently heard arguments on whether the conditions that prevail in the country of removal form part of whether removal is “practicable” for the purposes of s 198 of the Act: TCXM v Minister for Immigration and Citizenship (High Court S146/2025), argued on 9 December 2025.

49    Prohibition is flexible? In oral argument, the Applicants sought to make something of the fact that an order for prohibition need not restrain conduct indefinitely, but can be made to restrain a decision-maker from exercising jurisdiction until the error is remedied, such as procedural fairness is provided: see Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 595 (Brennan J); see also 581 (Mason CJ, Dawson, Toohey and Gaudron JJ). However, that situation is quite different from the situation here: any order would be to the effect of restraining the Commonwealth from applying for a Nauruan visa for the Applicants unless that application would not be legally unreasonable in the circumstances. Such an order would impermissibly enmesh the Court’s processes with the decision-making of the Executive, and should not be made.

50    Applicants’ case is weak: Separately, the Applicants’ case for restraining any application by the Commonwealth for Nauruan visas for the Applicants is weak.

51    Applicants contend decision would be legally unreasonable: The Applicants contend that any decision to apply for a Nauruan visa for them would be legally unreasonable, for reasons outlined in the VLA letters to the Minister referred to in [8] and [12] above.

    In the case of KVO25, the particular factors said to preclude removal are (a) he has a diagnosed intellectual disability; (b) he is a practising Muslim; and (c) he is at risk of indirect or constructive refoulement to Afghanistan.

    In the case of FZRM, the particular factors said to preclude removal are (a) he is a bisexual man and a practising Muslim; (b) he is at risk of indirect or constructive refoulement to Malaysia; and (c) he suffers from complex and contested health diagnoses, and his health issues may be exacerbated and/or unable to be treated in Nauru.

52    The Applicants’ argument that any decision to apply for a Nauruan visa on their behalf would necessarily be legally unreasonable faces a number of obstacles.

53    Legal unreasonableness is high threshold: The Applicants’ arguments may well provide cogent reasons why the Department should not apply for a Nauruan visa for them; however, that is a long way from establishing that any decision to that effect would meet the high threshold of legal unreasonableness. Some matters raised by the Applicants (in particular, a risk of “chain refoulement”) were rejected in TCXM at [176]-[177], and run counter to the terms of the MOU (see Sch 1 cl 3.1.2). A key matter would be whether any decision to apply for Nauruan visas for the Applicants had an evident and intelligible justification, given the matters raised by the Applicants. That in turn would depend on what facts were relied on by the decision-maker.

54    Do not know factual material or reasons for decision: More fundamentally, legal unreasonableness is a fact-sensitive inquiry, that is assessed at the time of the decision on the basis of the materials before the decision-maker: see DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177 at [21] (Kiefel CJ, Gageler, Gordon and Steward JJ); Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ). I accept the Respondent’s submission that it cannot be assumed that the entire factual universe will be contained in the VLA letters to the Minister, even as supplemented by the second Elmolla and Main affidavits (which refer to a February 2025 interview with the President of Nauru, and two newspaper articles from November 2025).

55    This analysis receives support from two cases in which this Court has refused to grant relief in advance of a decision being made, when the anticipated error was legal unreasonableness.

56    FUD18 (Full Court, 2021): In FUD18 v Minister for Home Affairs [2021] FCAFC 132; (2021) 285 FCR 505, the appellant sought prohibition to restrain the Minister from refusing to grant the appellant a visa under s 501(1), on the basis that it would be unreasonable (it was said) for the Minister to infer from an Interpol notice that the appellant would present a risk to the Australian community or segment of it for the purposes of s 501(6)(h). The Full Court refused to grant relief in the exercise of discretion.

    Relevantly, Lee and Wheelahan JJ held that it was presently unclear what information would be before the Minister at the time when he came to make his decision, and moreover, what that decision would be. The Court could not be satisfied that any decision would be legally unreasonable when the material upon which the decision is to be made could possibly change: FUD18 at [129].

    To similar effect, Wigney J held that it could not be said with any certainty at that stage that the Minister would, in fact, make the decision which the appellant contends would be legally unreasonable. There was no immediate threat, or no strong probability, of any jurisdictional error: FUD18 at [39]. Further, the Minister was not restricted to considering the information within the four corners of the Interpol notice. It was not known exactly what information would be before the Minister: FUD18 at [41], [44].

57    McLeod (2022): In McLeod v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1479; (2022) 181 ALD 257, the applicant sought to prevent the Minister from cancelling his visa under s 501(2) of the Act, contending that it was not open to the Minister, on the material provided with the notice of intention to cancel a visa, to form a reasonable suspicion that the applicant did not pass the character test. Justice Moshinsky refused to grant relief in the exercise of discretion.

    Among other things, Moshinsky J held that the Court would be better placed to deal with the issue of legal unreasonableness or irrationality with the benefit of a statement of reasons, should a decision be made to cancel the applicant’s visa. Otherwise, the Court was being asked to decide the issue somewhat in the abstract: McLeod at [42].

    His Honour accepted that the applicant was likely to spend a considerable time in immigration detention (if his visa were cancelled and he sought to challenge that decision on judicial review), but stated that this was true in many cases before the Court: McLeod at [43].

58    I accept that a difference between these proceedings and FUD18 and McLeod is that, here, the practical utility of any challenge to the validity of an adverse decision, once it is made, is not straightforward: see [47]-[48] above. Even so, FUD18 and McLeod illustrate the difficulties in establishing that an administrative decision that is yet to be made, for reasons not yet known, is legally unreasonable. Those difficulties weaken the Applicants’ case.

59    Conclusions – interlocutory injunctions refused: For these reasons, the applications for interlocutory injunctions are refused. The Applicants’ case is weak, because it would require establishing that a decision that has not yet been made (for reasons that are not yet known) is necessarily legally unreasonable. The matters relied on by the Applicants do not establish that any decision to apply for a Nauruan visa for the Applicants would necessarily and invariably be legally unreasonable; much would depend on the facts before the decision-maker at the time of decision. And the balance of convenience does not favour granting an injunction, because the Commonwealth’s evidence is that the Applicants have been sidelined from consideration for removal to Nauru, and it is not realistic that this decision would change in the reasonably foreseeable future. On the basis of that evidence, there is no imminent harm to the Applicants’ rights.

C.3    Respondent’s application for suppression orders

60    The final issue is the Respondents’ application for suppression orders over certain parts of Ms Jones’ first affidavit and a sentence in the Respondent’s submissions. The material which is sought to be suppressed identifies the relevant factors that are used by Australia to decide whether or not to refer a person for consideration for removal to Nauru. Ms Jones in her first affidavit states:

    these factors remain confidential as they are subject to ongoing negotiations with the Government of Nauru and disclosure would breach an agreement with Nauru that confidentiality would be maintained over the information; and

    these factors are kept confidential for “operational security reasons” to ensure that implementation of the third country reception arrangement cannot be “gamed” or undermined by individuals with knowledge of the relevant factors.

61    This material has been disclosed to the Applicants and their legal representatives, and the Commonwealth does not seek to prevent the use of that material in these proceedings. However, the Commonwealth seeks orders preventing the broader disclosure of that information.

62    Suppression orders (Federal Court Act ss 37AF, 37AG): The Court’s power to make suppression orders derives from ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth).

    By s 37AF(1)(b)(i), the Court may, by making a suppression order or non-publication order on grounds permitted by Pt VAA of the Federal Court Act, prohibit or restrict the publication or other disclosure of information that relates to a proceeding that comprises evidence or information about evidence.

    By s 37AG(1), the Court may make a suppression order or non-publication order on one or more of the grounds set out, which include “the order is necessary to prevent prejudice to the proper administration of justice” (s 37AG(1)(a)), and “the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security” (s 37AG(1)(b)). The Commonwealth relies in its application on s 37AG(1)(a).

63    In Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; (2020) 275 FCR 377, the Full Court set out the following principles in relation to the making of suppression or non-publication orders under ss 37AF and 37AG(1)(a) of the Act (citations omitted):

[8]    Suppression or non-publication orders should only be made in exceptional circumstances: … . That is both because the operative word in s 37AG(1)(a) is “necessary” and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: … . The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle: … .

[9]    The critical question is whether the making of a suppression or non-publication order is “necessary to prevent prejudice to the proper administration of justice”. The word “necessary” in that context is a “strong word”: … . It is nevertheless not to be given an unduly narrow construction: … . The question whether an order is necessary will depend on the particular circumstances of the case. Once the court is satisfied that an order is necessary, it would be an error not to make it: … . There is no exercise of discretion or balancing exercise involved: … .

64    To establish that an order under s 37AF is “necessary to prevent prejudice to the proper administration of justice” within the meaning of s 37AG(1)(a), the party seeking that order must “identify the contended prejudice to the proper administration of justice that would result if the order is not made”, and identify the link “between the contended harm and s 37AG(1)(a)”: Lee v Deputy Commissioner of Taxation [2023] FCAFC 22; (2023) 296 FCR 272 at [90], [93], [95] (the Court).

65    Breach of confidence with Nauru? The Respondent’s first argument in favour of suppression is that the factors that determine whether a person is referred for consideration for removal are still being negotiated with Nauru, and disclosure of these matters would breach an agreement with Nauru that confidentiality would be maintained over this information. This argument applies to most of the material over which the Commonwealth seeks suppression, other than two of the factors listed in Ms Jones’ initial affidavit.

66    Bare fact of confidentiality is not sufficient: The bare fact that information is confidential, and even subject to an obligation of confidentiality, does not establish by itself that a prohibition on disclosure is necessary to prevent prejudice to the proper administration of justice within s 37AG(1)(a).

    In Lee at [99], the Full Court stated that the fact that Div 355 of Sch 1 of the Taxation Administration Act 1953 (Cth) contains a statutory regime aimed at preserving the secrecy of “protected information” does not directly address whether suppression orders should be made under ss 37AF and 37AG(1)(a) of the Federal Court Act. The taxation provisions “operate according to their terms”, and cannot dictate the answer in a separate statutory regime (although these provisions were relevant).

    In EBJ21 v EBO21 [2021] FCA 1406; (2021) 290 FCR 325 at [70], Stewart J accepted that there was a strong public (and in that case private) interest in maintaining the confidentiality of arbitration proceedings. However, that fact alone did not mean that a suppression order was necessary to avoid prejudice to the proper administration of justice: instead, the decisive factor in that case was that a failure to make suppression orders would allow the Court’s processes to be used for no substantial legitimate purpose and would have the effect of eroding or undermining the parties’ agreement to, and the law’s protection of, confidential information in relation to their arbitral proceeding: EBJ21 at [87].

    In the context of commercially sensitive information, the mere fact that information is not in the public domain will rarely be a sufficient basis, by itself, to suppress its publication; rather, obtaining a suppression order generally requires demonstrating that the party seeking suppression would be “seriously compromised or adversely affected if confidentiality was not retained”: Clark v Digital Wallet Pty Ltd [2020] FCA 877 at [23], [26] (Abraham J); see also Australian Competition and Consumer Commission v Oakmoore Pty Ltd (No 2) [2018] FCA 1170 at [37] (Gleeson J).

67    Equally, an assertion that disclosure would damage Australia’s relations with another country is not sufficient to make a suppression order, if the asserted harms are entirely speculative: see Hua Wang Bank Berhad v Commissioner of Taxation (No 7) [2013] FCA 1020; (2013) 217 FCR 1 at [102] (Perram J). The Applicants submit, correctly, that notions of annoying or offending a foreign government do not come within the “administration of justice”.

68    TCXM (HC): In TCXM v Minister for Immigration and Citizenship [2025] HCA Trans 67 (TCXM (HC)), Gageler CJ made suppression orders on the grounds identified in s 77RF(1)(a) and (b) of the Judiciary Act 1903 (Cth) (which correspond to s 37AG(1)(a) and (b) of the Federal Court Act) in respect of information relating to removing non-citizens to Nauru that was suppressed by Moshinsky J in TCXM.

(a)    The Chief Justice was satisfied that disclosure of certain information would be likely to adversely affect Australia’s relationship with the Government of Nauru, and that the disclosure of the other “Sensitive Information” would be likely to be seen by the government of Nauru as a breach of confidentiality in the course of the international negotiations which led to the exchange of letters between the Minister for Home Affairs and the President of Nauru (the interim arrangement referred to in [21] above): at p 7 (254-263). The Chief Justice was further satisfied that the disclosure of the information would risk adversely affecting the level of cooperation and assistance Australia receives from the Republic of Nauru in respect of Australia’s border security arrangements and operations. His Honour was therefore satisfied that the suppression order was necessary to prevent prejudice to the interests of the Commonwealth in relation to national and international security: at p 7 (265-271).

(b)    Further, the Chief Justice was satisfied that adopting a consistent approach to the suppression of this information to that taken by Moshinsky J was required to prevent prejudice to the proper administration of justice: at p 8 (273-279).

69    Evidence (Strugnell affidavit): For this argument, the Commonwealth relies on an affidavit of Shan Strugnell affirmed on 9 December 2025, which has been provided to the Applicants in redacted form. I have considered the unredacted version of this affidavit: see, as to this approach, Person “A” v The Commonwealth [2019] NSWSC 727 at [3]-[6] (Ward CJ in Eq).

70    The open parts of Ms Strugnell’s affidavit state:

    Ms Strugnell has been the lead negotiator on behalf of the Australian Government in the negotiations with Nauru for a third country reception arrangement. Although Australia and Nauru signed an MOU on 29 August 2025, the specifics of the agreement are subject to ongoing negotiations.

    Since the commencement of the negotiations, Nauruan officials have expressly and repeatedly advised that they expect that the content of the negotiations is highly sensitive and should not be disclosed.

    Ms Strugnell states that the clear implication of the sensitive information in the first Jones affidavit is that the Australian Government would be seen as publicly commenting on certain matters. Based on her experience and expertise, Ms Strugnell states that the Nauruan Government would be significantly annoyed and offended by the Australian government being seen to comment publicly on those matters.

    Ms Strugnell’s opinion is that if the sensitive information were disclosed, that would ultimately weaken the relationship between Australian and Nauruan officials. Nauru plays an essential role in Australia achieving the objectives of “Operation Sovereign Borders”. A weakening in the bilateral relationship would adversely affect the level of cooperation and assistance Australia receives from Nauru in respect of Australia’s border security arrangements and operations. That would be likely to have a range of adverse consequences, including in relation to Australia’s border security framework.

71    The Commonwealth’s application seeks suppression orders to remain in force for five years (that is, until 11 December 2030) (see Federal Court Act, s 37AJ(1)). Ms Strugnell states that this timeframe reflects that removals under the third country reception arrangement are in a state of flux, and that (in her opinion) it is essential that Australia maintains a strong bilateral relationship with Nauru throughout that period.

72    Ms Strugnell states that, in her opinion, a non-publication order would not sufficiently address the risk of harm she identifies. First, in her opinion, the risks of harm would result from any disclosure of the sensitive information. Second, she considers that there is a meaningful risk that Nauruan officials would regard an application by the Secretary only to restrict publication but not other disclosures of the sensitive information as Australia permitting disclosure.

73    Conclusions – suppression orders should be made: The Strugnell affidavit (when read with the sensitive information) sets out a cogent reason for making suppression orders over the sensitive information (other than two of the factors listed in the Jones affidavit). Ms Strugnell is amply qualified to express opinions about the likely effect of disclosure of this information on Australia’s relationship with Nauru, and I accept that evidence: see Kamasee v Commonwealth of Australia (No 4) (PII – Sample Foreign Relations Claims) [2016] VSC 492; (2016) 52 VR 368 at [37] (Macaulay J). I also accept Ms Strugnell’s evidence about the need for these orders to remain in force for five years, and for a suppression order (not just a non-publication order) to be made.

74    However, the relevant ground for making these orders, based on this evidence, is s 37AG(1)(b) of the Federal Court Act (national or international security), rather than s 37AG(1)(a). As Gageler CJ held in TCXM (HC), if the disclosure of the information would risk adversely affecting the level of cooperation and assistance Australia receives from Nauru in respect of Australia’s border security arrangements and operations, then the suppression order is necessary to prevent prejudice to the interests of the Commonwealth in relation to national or international security: see [68](a) above.

75    The Applicants contend that a certain level of embarrassment for litigants is a necessary part of open justice: see Porter v Australian Broadcasting Corporation [2021] FCA 863 at [51](2) (Jagot J). However, the point identified by Gageler CJ raises a different issue: a suppression order is necessary if the Court is satisfied that disclosure would damage Australia’s international relations with another country, and thereby prejudice the Commonwealth’s interests in national or international security. If cogent evidence given by qualified witnesses establishes that disclosure would cause a sufficient risk of damage to Australia’s international relations, it is not to the point whether the reaction by the foreign country causing this damage to international relations is considered by the Court to be objectively reasonable: see, in the freedom of information context, Secretary, Department of Prime Minister and Cabinet and Summers (Freedom of Information) [2019] AATA 5537 at [34] (Perry J).

76    “Operational security reasons”? The Respondent’s second argument for suppression is for “operational security reasons”, because (it is said) disclosure could lead to persons undermining the implementation of the third country reception arrangement. This argument applies to all of the factors listed in Ms Jones initial affidavit, including the two that are not covered by the international relations argument above.

77    EBJ21 indicates that this Court will not permit its proceedings to be used to undermine a statutory scheme (here, the scheme for entering into and carrying out third country reception arrangements), if there is no substantial legitimate purpose in disclosing the information in question. At the same time, the Court must be satisfied that the order is “necessary” to prevent prejudice to the proper administration of justice.

78    Evidence (2nd Jones affidavit): For this argument, the Commonwealth relies on a second, confidential affidavit of Ms Jones affirmed on 9 December 2025. Again, this has been provided to the Applicants in a redacted form, and I have considered the unredacted version. Briefly, the open parts of this affidavit state:

    Ms Jones states that, in her opinion, disclosure of the sensitive information would be likely to prejudice the Department’s ability to implement the third country reception arrangement, resulting in individuals in the BVR cohort who might otherwise have been suitable for removal to Nauru remaining in the Australian community. She considers that members of the BVR cohort would be motivated to take steps to try to avoid being removed to Nauru.

    Ms Jones states that, while it might be possible for the public to guess certain matters, she considers that disclosure of those matters in an authoritative affidavit is likely to be given substantial weight by the public, and result in the harms described.

79    Conclusions – not necessary to decide this argument: This argument is much less clear cut. As Ms Jones appears to acknowledge, members of the public may be able make an informed guess about the nature of the sensitive information. It is also not clear to me, despite Ms Jones’ evidence, the extent to which members of the BVR cohort could realistically take steps to prevent them from being available for removal to Nauru.

80    However, given my conclusions that the Strugnell affidavit supported the making of orders over all of the sensitive material (apart from two of the factors mentioned in the first Jones affidavit), the Commonwealth chose not to read that part of the sentence in the Jones affidavit which mentioned those remaining two factors. The Commonwealth was given leave to re-file the first Jones affidavit with the words no longer relied on redacted.

81    I note that the Court returned the confidential, unredacted versions of the Strugnell affidavit and the second Jones affidavit to the Respondents’ legal representatives at the end of the interlocutory hearing, on them giving an undertaking that these affidavits would be made available as required by the Court: see, as to this approach, R v Al Batat (No 27); NSW Commissioner of Police v Al Batat [2020] NSWSC 1399 at [12] (Order 4); see also Donnelly (A Pseudonym) v The King [2022] SASCA 125 at [97].

D.    Conclusions

82    In summary, I have reached the following conclusions:

    Proceedings VID1474/2025 and VID1476/2025 should be dismissed for want of jurisdiction.

    In proceedings VID1601/2025 and VID1602/2025, the application for interlocutory injunctions should be dismissed.

    In all proceedings, suppression orders should be made on the ground in s 37AG(1)(b) of the Federal Court Act over the sensitive information identified in the Commonwealth’s interlocutory application, other than two of the factors listed in Ms Jones’ initial affidavit (being material on which the Commonwealth no longer relies).

83    Costs: As to costs, the first issue is the costs of proceedings that have been dismissed for want of jurisdiction (VID1474/2025 and VID1476/2025). There is specific power to award costs when a matter is dismissed for want of jurisdiction: Federal Court Act, s 43(1). It is appropriate for the costs of these proceedings to be dealt with together with the costs of the related, transferred proceedings (that is, VID1602/2025 and VID1601/2025, respectively), given the close connection between these proceedings.

84    In proceedings VID1601/2025 and VID1602/2025, there does not seem to be any reason why the usual position should not apply; namely, that the Applicants pay the Respondents’ costs of and in relation to the interlocutory application.

Associate:

Dated:    12 December 2025