Federal Court of Australia

Kepu v Minister for Immigration and Multicultural Affairs [2026] FCA 123

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application of Mr Kepu dated 17 February 2026 be dismissed.

2.    The applicant pay the costs of the respondent of and incidental to the interlocutory application, such costs to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

BACKGROUND

1    Late yesterday evening the applicant, Mr Kepu, provided to the Migration Duty Registrar of this Court an interlocutory application dated 17 February 2026, with a supporting affidavit of the same date. In summary, Mr Kepu is a citizen of Papua New Guinea, who is currently in detention pending a hearing of an originating application for review of a migration decision of the Minister for Immigration and Multicultural Affairs (respondent). Mr Kepu’s originating application was accepted for filing in this proceeding QUD249/2025 on 2 May 2025.

2    Mr Kepu is represented by pro bono lawyers and Counsel. The substantive originating application is on the docket of Meagher J, however I understand that it has not yet been heard pending hearing and determination by the Full Court of the Federal Court of Australia of the appeal in VID805/2025. The proceeding in VID805/2025 is not related to Mr Kepu’s application, however principles of law relevant to this case are expected to be considered and determined by the Full Court in that case.

3    Mr Kepu in his affidavit provided with his interlocutory application deposed, in summary, as follows:

    on 17 February 2026 he was located at the Brisbane Immigration Detention Centre at Pinkenba in Brisbane (Brisbane Detention Centre);

    he was informed some time on 17 February 2026 that he was to be removed from the Brisbane Detention Centre at around 7.00am on 18 February 2026;

    at around 4.30pm on 17 February 2026 he wrote an urgent request to the management of the Brisbane Detention Centre to review the removal process concerning him; and

    at around 9.00pm on 17 February 2026 he was informed that he was to be ready by 4.00am on 18 February 2026 to be removed from the Brisbane Detention Centre.

4    Material before me indicates that it was expected that Mr Kepu was to be removed from Brisbane to the Yongah Hill Immigration Detention Centre at Burlong approximately 90 kilometres north-east of Perth in Western Australia.

5    In his interlocutory application Mr Kepu sought the following orders:

1. That the Applicant not be removed, relocated or transfer either inter-state or removed from the jurisdiction of the Honourable Court until and unless the final determination of these proceedings as according to law and procedure.

2. That the Respondent, its agents, it's employees and third-party contractors be restrained not to remove the Applicant from the jurisdiction of the Honourable Court until and unless the final determination of these proceedings as according to both law and procedure.

3. That the Respondent is exercising extra-judicial process to weaken the Applicant's pending matters before the Honourable Court by removing, relocating or transferring him either inter-state or out of Australia in breach of the International obligations to provide such protections to the Applicant.

4. That the balance of the convenience which is to placed in favour of the stay and not to relocate, transfer or remove the Applicant to any detention centre in Australia as the Applicant's counsel is based in Brisbane, Queensland and that the pending matter has not been resolved or determined by the Honourable Court as according to law and procedure and the Honourable Judge Meagher has been allocated with the docket of the matter and the Honourable Judge is also based in Brisbane, Queensland.

5. That by the demonstrated actions and the projected behaviour of the Respondent, its agents, employees and third-party contractors is an abuse of the court process and such steps taken by the Respondent, it's agents, employees and third-party contractors are in breach of such conventional requirements that the Applicant is required to prepare his arguments and have a continuous access to his counsel for the preparation of his matter before the Honourable Court.

6. That the pending matters have not been fully determined as according to both law and procedure and that there is a prospect of success before the Honourable Court and the said actions and demonstrated behaviour of the Respondent, it's agents, employees and third-party contractors are in breach of any nature justice that could be afforded to the Applicant.

7. That the said demonstrated actions and projected behaviour of the Respondent, it's agents, employees and third-party contractors will cause such irreparable harm to the pending case of the Applicant and having access to a lawyer/counsel of his choice.

8. That the Respondent, it's agents, employees and third-party contractors be restrained from transferring, re-locating or removing the Applicant from the jurisdiction of the Honourable Court until and unless the final determination of the pending matters before the said Honourable Court as according to Law and Procedure.

(errors in original)

6    I note that at the hearing before me Mr Black for the applicant sought to refine order 1 to be an order where the Court restrained the respondent from moving the applicant from the Brisbane Detention Centre pending the determination of the substantive proceedings before Meagher J.

7    The matter came before me very late last night, commencing via a Microsoft Teams link with Counsel for the applicant and the legal representative for the respondent at around 12.15am this morning.

SUBMISSIONS

8    In summary, Mr Black for the applicant, who appeared at the hearing, submitted as follows:

    The applicant had submitted this interlocutory application without input from his legal advisors.

    The decision in Stretton v Minister for Immigration and Border Protection [2015] FCA 249 favoured the application in respect of ongoing access by the applicant to his lawyers, in that the applicant’s legal team were in Brisbane.

    If the applicant were transferred away from Brisbane he would lose the continuity of medical treatment he had received whilst in Brisbane, including his place in a waiting list to receive medical treatment from a specialist at the Mater Hospital.

    The applicant’s family and support network were in Brisbane.

    The evidence of the respondent annexed to the affidavit of the respondent’s lawyer Mr Orchard (as set out in an email from National Detention Placements to the Superintendent being Annexure CEO-1 to the affidavit of Christopher Orchard dated 18 February 2026 (transfer email)) indicated that the respondent was mistaken in assuming that there were no health issues relevant to the transfer of the applicant.

9    In summary Mr Orchard for the respondent, who also appeared at the hearing, submitted:

    The transfer email relevantly provided:

Family:

NDP has checked Mr KEPU ’s most recent Community Protection Assessment Tool (CPAT). Mr KEPU has the following reported family connections in Australia:

Partner: Cathy Augua – located Brisbane – active DVO

Aunt: Rose James – located in Yeerongpilly

VISITS:3 x Kafaa AL-OBAYDI friend/ Community Group

Best Interest of the child Considerations:

Mr KEPU does not have any known children in Australia to consider.

…

Health and welfare

HCA indicated no concerns with the planned transfer and placement of the detainee at YHIDC. The patient presents with a longstanding, non-occlusive deep vein thrombosis below the right knee, bilateral knee pain requiring physiotherapy, as well as chronic neck and back pain necessitating ongoing physiotherapy.

The detainee has been assessed as FTT at this point exp 27/02/2026. There is note for consideration of DVT prophylaxis prior to flight however.

Primary healthcare services are available at YHIDC and can continue any care required.

Placement and behavioural considerations:

Mr. KEPU is currently accommodated at BIDC. BIDC is near capacity and requires a significant reduction in detainee numbers to ensure adequate safety and security of the centre, staff detainees and others.

Mr. KEPU has been involved in minimal adverse incidents during his time in detention.

Mr KEPU does not have any close and meaningful family in Australia as defined by the Migration ACT to consider for placement. He has been identified for transfer due to his lack of significant family support in Queensland in support of rebalancing activities.

    The Brisbane Detention Centre is near capacity and requires reduction in detainee numbers to ensure the safety and security of detainees and others at the centre.

    Mr Kepu’s family support did not appear to be significant. The decision of Robertson J in Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2019] FCA 1520 was relevant.

    The applicant would be able to access healthcare services in Yongah Hill Detention Centre. A “Fit for Travel Assessment” was completed by registered nurse on 9 January 2026 assessing the applicant as fit to travel, although noting his DVT prophylaxis prior to flight.

CONSIDERATION

10    It was not in dispute that the key issue before the Court was whether an interim restraining order should be granted to prevent the removal of the applicant from the Brisbane Detention Centre and transfer to the Yongah Hill Detention Centre. Relevant principles for consideration where the Court is asked to determine whether to grant such an order were explained by the High Court in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 to include whether there is a serious question to be tried, whether damages is an adequate remedy, and where lies the balance of convenience.

11    Plainly, it appears that – at least initially – the applicant had concerns about whether he was being removed from the jurisdiction of the Federal Court, namely outside of Australia. To the extent that the respondent proposes to move the applicant to a detention centre north-east of Perth, it is clear that he will be remaining in Australia. There is no evidence before the Court that, prior to the hearing before Meagher J, Mr Kepu is going to be removed from Australia or otherwise in some way outside of the jurisdiction of the Federal Court of Australia.

12    Mr Kepu’s key arguments in support of his remaining in Brisbane were that:

    He would not be able to properly access his legal advice from Yongah Hill Detention Centre.

    He would receive less favourable medical treatment if he were removed from Brisbane.

    He would lose his family and support network if he were not in Brisbane.

Legal advice

13    Section 256 of the Migration Act 1958 (Cth) provides:

256 Person in immigration detention may have access to certain advice, facilities etc.

Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.

(emphasis added)

14    Yongah Hill Detention Centre is a well-known detention centre in Australia. There is no evidence before me that it would not be possible, or would even be difficult, for Mr Kepu to communicate with his legal advisors in Brisbane from Yongah Hill in accordance with s 256 of the Migration Act in respect of the preparation of his litigation before Meagher J. Certainly no evidence to that effect was put on before me last night, and no observations were made to that effect by Mr Black for Mr Kepu. The decision in Stretton on which Mr Kepu relied is distinguishable, in that in the present case I do not have a very real concern as to whether it would be possible for Mr Kepu to effectively give instructions to his legal team in relation to the conduct of his judicial review application were he to be housed at Yongah Hill. I also note that Stretton is a decision made some 11 years ago, and there is reason to assume that communications – including to places such as Yongah Hill from Brisbane – would have improved during that time.

Less favourable medical treatment

15    There is no real evidence before me of whether Mr Kepu would in some way suffer medically were he to be transferred to Yongah Hill Detention Centre, such that the damage to him from transfer was in some way identifiable. Clearly the respondent was aware of Mr Kepu’s medical condition however it appears that this was taken into account in the decision of the respondent to select him for transfer to Yongah Hill Detention Centre. That Mr Kepu apparently had a medical appointment at the Mater Hospital in Brisbane does not, of itself, mean that he would receive less favourable medical treatment in Western Australia.

Family and support network

16    In his affidavit dated 17 February 2026 the applicant deposed that he required the support of his family to maintain his litigation. Exactly how that support would manifest is unclear, other than by moral support.

17    In Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2019] FCA 1520 Robertson J observed:

155.    … There was no evidence that the nature or quality of the applicant’s detention would be different in Yongah Hill IDC to Villawood IDC or of other special circumstances, such as obtained in ID. In my view the applicant’s “residual liberty”, being the separation or removal from him of the ability to have face-to-face contact with his children and his family did not have the consequence that he was entitled to an opportunity to be heard before the transfer decision was made or before it was put into effect…

18    See also Graham v Minister for Immigration and Border Protection [2018] FCA 1012.

19    Mr Kepu referred to having “family here in Brisbane” however the evidence of the respondent is that Mr Kepu’s family in Brisbane consisted of his former partner (who was the beneficiary of a Domestic Violence Order, presumably against Mr Kepu, and whose support of Mr Kepu is, with respect, somewhat uncertain) and an aunt of Mr Kepu. I am not satisfied that Mr Kepu’s family relationships are such that any support his family would or could provide weighs in his favour in respect of the grant of the interlocutory relief he seeks.

Conclusion

20    It is not in dispute that Mr Kepu’s originating application is on the docket of Meagher J. I am unaware of when that hearing is before her Honour, but it does not seem to be in dispute that it will take place in due course. I do not consider that there would be any difficulty with the originating application being heard by Meagher J, notwithstanding that her Honour is in Brisbane and Mr Kepu may be in Western Australia.

21    I note the contention of Mr Kepu that the projected behaviour of the respondent is an abuse of the Court’s process. I do not accept this. I have found there is no reason to doubt that Mr Kepu will have continued access to his legal representatives if he is transferred to Yongah Hill. I further note that Mr Kepu wishes to remain in Brisbane to access medical treatment and to see his lawyers and family members in person. However, I also note the evidence of the respondent of the pressures on the accommodation at the Brisbane Detention Centre, the necessity of ensuring the safety and security of inmates at the detention centre itself, and the related decision to transfer Mr Kepu to another detention centre. The balance of convenience in this respect clearly lies with the respondent.

22    The decision of the respondent to transfer Mr Kepu to Yongah Hill Detention Centre was a management decision of the respondent, made as a value judgment of the respondent, and well within the powers of the Minister: Stretton at [13], Chamoun at [155]. In my view it would not be appropriate, as an exercise of the discretion of the Court, to interfere with that decision in the manner sought now by Mr Kepu.

23    The appropriate order is to dismiss the interlocutory application of the applicant, with costs.

Associate:

Dated:    18 February 2026