Federal Court of Australia

SXHR v Minister for Immigration and Citizenship [2026] FCA 904

ORDERS

THE COURT ORDERS THAT:

1.    The Commonwealth of Australia be joined as the third respondent in this proceeding.

2.    The first and third respondents including by their officers, servants and delegates be restrained from removing the applicant from Australia until determination of this proceeding or until further order.

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

4.    There be liberty to apply.

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

REASONS FOR JUDGMENT

STELLIOS J:

Introduction

The applications to this Court

1    These reasons address an interlocutory application filed by the applicant on 26 June 2026 to restrain the first respondent (the Minister) from removing the applicant from Australia until determination of the originating application for the review of a migration decision. The interlocutory application came before me as duty judge on 8 July 2026.

2    The originating application seeks to review a decision of the Administrative Review Tribunal to affirm a decision of a delegate of the Minister to refuse to grant the applicant a Class EW Bridging E visa (BVE). The delegate was not satisfied that the applicant passed the character test and, accordingly, refused to grant the BVE pursuant to s 501(1) of the Migration Act 1958 (Cth).

Background facts

3    The applicant is a citizen of Sri Lanka who arrived by boat in Australia on 17 September 2012 as an Unauthorised Maritime Arrival. On around 14 September 2021, the applicant applied for a Safe Haven Enterprise (subclass 790) visa. A delegate of the Minister refused that application on 30 November 2023 and, on 14 May 2024, the Immigration Assessment Authority affirmed that decision. A judicial review application filed in the Federal Circuit and Family Court of Australia (Division 2) was dismissed on 8 September 2025. There was no appeal from that decision.

4    In the meantime, the applicant applied for a BVE on 21 November 2024. A BVE is a temporary visa granted for the purpose of permitting the visa holder to stay in Australia whilst making arrangements to leave, finalising their immigration matter or waiting for an immigration decision. The BVE application was refused on 26 November 2024, but that refusal was set aside by the Tribunal on 5 December 2024. The relevant decision, to refuse a BVE, giving rise to the Tribunal decision that is the subject of the review proceeding in this Court was made on 10 April 2025. On 4 July 2025, the Tribunal affirmed the refusal of the BVE application, only to be set aside by consent in this Court for jurisdictional error on 3 November 2025. The Tribunal decision challenged in this Court, to affirm the delegate’s refusal decision, was made on 3 June 2026.

5    On 24 June 2026, the Minister emailed a letter to the applicant’s legal representative advising that the applicant’s removal from Australia was scheduled for 10 July 2026. The following day, the applicant was provided by hand a Notice of Intention to Remove pursuant to s 198 of the Migration Act. It was common ground between the parties that the relevant power of removal in this case is s 198(5) of the Migration Act. The applicant is presently in detention.

6    It will also become relevant that, on 1 April 2026, the applicant requested Ministerial intervention under ss 46A(2) and 48B(1) of the Migration Act. Those requests are yet to be considered by the Minister who is under no duty to do so: ss 46A(7), 48B(6).

7    Ahead of the hearing, the parties filed written submissions and supporting affidavit evidence. The applicant relied on the following affidavit evidence:

(1)    An affidavit of Zoe Anastassiades affirmed on 19 June 2026;

(2)    An affidavit of Zoe Anastassiades affirmed on 26 June 2026;

(3)    An affidavit of the applicant sworn on 1 July 2026; and

(4)    An affidavit of Zoe Anastassiades affirmed on 1 July 2026, reading the body of the affidavit, as well as pages 7–19, 663–6, 671–3, 688–91, 923–47, 956–9, 1011–29, 1211–2, and annexures 7, 8 and 9, comprised of pages 1287–306.

8    The Minister relied on an affidavit of Kerrie Pieri affirmed on 7 July 2026.

9    For the reasons that follow, I am satisfied that the injunction sought by the applicant should be ordered.

PRINCIPLES

10    The Court has jurisdiction to hear and determine the proceeding under s 476A(1)(b) of the Migration Act. Section 23 of the Federal Court of Australia Act 1976 (Cth) provides that the Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds as the Court thinks appropriate, including interlocutory orders. While s 198 of the Migration Act imposes an enforceable duty of removal, as Kennett J said in BKN25 v Commonwealth of Australia [2026] FCA 350 at [14]:

… the High Court affirmed in Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5; 99 ALJR 486 (MZAPC) that the provisions of s 198 which call for removal must be construed so as to accommodate the grant of an interlocutory injunction by this Court (at [33]-[47] (Gageler CJ, Gordon, Gleeson and Jagot JJ), [77] (Steward J), [125]-[126] (Beech-Jones J)).

11    The Minister did not dispute that position in this proceeding, and more generally accepted that this Court can issue an injunction in circumstances where s 198(5) of the Migration Act is the relevant source of authority of removal.

12    The parties were in general agreement that the applicant must establish that (a) there is a serious question to be tried or a prima facie case, and (b) the balance of convenience is in favour of the injunction being ordered: see Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65]–[72] (Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed at [19]). For there to be a prima facie case, it is sufficient that the applicant can demonstrate “a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial”: O’Neill [65] (Gummow and Hayne JJ).

13    As a Full Court said in Samsung Electronics Co Limited v Apple Inc [2011] FCAFC 156; 217 FCR 238 at [67] (Dowsett, Foster and Yates JJ), “[t]he question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience. The apparent strength of the parties’ substantive cases will often be an important consideration to be weighed in the balance”.

14    In Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5; 99 ALJR 486 at [23], [25], Gageler CJ, Gordon, Gleeson and Jagot JJ said the following about the general principles underpinning the remedy and their application to the removal context (footnotes mostly omitted):

… the primary purpose of an interlocutory injunction remains “to keep matters in statu quo until the rights of the parties can be determined at the hearing of the suit” [Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [9]]. 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” [Lenah Game Meats at [11]], 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 [Lenah Game Meats at [13]].

…

The principle apposite to the present case is the power of a court to protect the integrity of its own processes by ensuring its capacity to effectively exercise its jurisdiction invoked in a proceeding pending before it. Applied to the present case, the power of the Federal Court to protect the integrity of its own processes in a proceeding pending before it of the kind brought by the respondent is not confined to an interlocutory injunction preventing the removal of an unlawful non-citizen from Australia only where the final relief sought is an order that the person cannot be lawfully removed from Australia. As an incident of its statutory power to make such interlocutory orders as are judicially considered to be appropriate, the power of the Federal Court to “protect the integrity” of the processes before it “once set in motion” includes the vindication of its own authority to ensure it can determine the proceeding before it and grant final relief of utility.

(emphasis in original)

15    The Minister relied on what was said by Colvin and Jackson JJ in the Full Court decision affirmed by the High Court: Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC [2024] FCAFC 34; 302 FCR 159. Addressing the question of injunctive relief to restrain removal in performance of the duty imposed by s 198(6), Colvin and Jackson JJ there said that (at [127], emphasis added):

… in the face of such a statutory duty, the Court must recognise the seriousness of restraining the enforcement of a valid law in considering the balance of convenience (including by requiring a strong case in order to justify the balance supporting the grant of relief).

16    However, when considering a similar argument by the Minister in Takarua v Minister for Immigration and Citizenship [2025] FCA 1419, Colvin J noted (at [26], emphasis added):

As to the test to be applied in deciding whether to continue the injunctive relief, the Minister contends that the grant of an injunction that interfered with the performance of the statutory duty to remove unlawful non-citizens from Australia as soon as practicable was exceptional and required there to be a strong case for the making of the order. However, no such qualification is evident from the reasoning of Gageler CJ, Gordon, Gleeson and Jagot JJ in Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5, where the reasoning in Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63; (2001) 208 CLR 199 was applied in a case where such relief was sought: see especially MZAPC at [23] citing Lenah Game Meats at [11], [13] (Gleeson CJ).

17    With respect, I agree with those observations and, accordingly, will apply the traditionally formulated test as described by the High Court in MZAPC in a way that achieves the purpose of protecting the integrity of the Court’s processes and that vindicates the Court’s authority to ensure it can determine the proceeding before it and grant final relief of utility, albeit recognising that there must be a sufficient likelihood of success to justify an injunction in circumstances involving the restraint of a public duty on the Minister.

Serious question to be tried

18    The applicant’s submissions that there are serious questions to be tried were developed in the following way in written and oral submissions.

19    First, the Tribunal determined that there was a real risk of the applicant engaging in further criminal or other serious conduct which could cause serious harm to others (TR [105]). However, for the purposes of applying para 8.1.2(c) of Direction No 110 – Visa refusal and Cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 110), which required the decision-maker, when assessing the risk that may be posed by an applicant to the Australian community, to have regard to whether the risk of harm may be affected by the likely duration of stay, the Tribunal stated that it was “unable to determine the likely duration of the applicant’s intended stay as the duration of the BVE would depend on the outcome of the Ministerial request”: TR [106]. The Tribunal then found “that this consideration weighs in favour of exercising discretion to refuse to grant the visa” and that the “Tribunal gives it considerable weight”: TR [107].

20    Secondly, in relation to the strength, nature and duration of ties in Australia (Direction 110, para 8.3(1)), while (a) generally accepting that the applicant had “strong” and “long-term” ties in Australia, (b) accepting that a decision to refuse the visa would adversely impact the applicant’s minor child and former spouse and have some adverse impact on other family members, and (c) accepting that “this consideration weighs against the exercise of discretion to refuse”, the Tribunal decided “to give this consideration more limited weight in circumstances where the visa in question would only enable the Applicant, at best, a temporary stay in Australia”: TR [124].

21    Thirdly, in relation to the legal consequence of the decision (Direction 110, para 9.1.1(2)), the Tribunal noted that the applicant’s claimed fear of returning to Sri Lanka, if true, “[was] capable of giving rise to non-refoulement obligations”: TR [158]. The Tribunal also accepted that (a) if the BVE was refused, the applicant may be removed from Australia (TR [159]), and (b) even if granted the BVE, the applicant will not be granted permission to remain in Australia indefinitely and his ability to remain in Australia and avoid removal is dependent on the outcome of the Ministerial request [to lift the bar under ss 46A and 48B of the Migration Act] and any future application” (TR [161]).

22    However, the Tribunal stated that it was “unable to comment on the procedures relevant to the Ministerial request, nor speculate as to its outcome”. And, further, that:

(1)    while the applicant’s claims “may give rise to non-refoulement obligations … the Tribunal gives this factor limited weight in favour of visa grant in the circumstances of this case where the grant of the BVE will not enable the Applicant to establish residence in Australia and may not prevent his removal in the future”: TR [162]; and

(2)    “this consideration weighs in favour of the visa grant but [the Tribunal] gives it more limited weight that (sic) it may have done in circumstances where the visa in question was a permanent or at least a substantive visa”: TR [164].

23    Fourthly, in the “Conclusion”, after the Tribunal referred to the impediments to be faced by the applicant if removed, ties to Australia and legal consequences of the decision, all of which weighed in favour of granting the BVE (in the case of the best interests of the child, it was given strong weight), the Tribunal concluded (TR [183]):

The Tribunal gives these factors significant weight against the exercise of discretion, but more limited weight in circumstances where the BVE will not provide the Applicant with the right to reside in Australia permanently. It is not for the Tribunal to speculate as to whether the Minister will intervene and whether the Applicant will be granted another visa and will be able to remain in Australia in the longer term. It is not for this Tribunal to speculate to what extent, if any, the outcome of the present review will affect the Minister’s considerations.

24    It was submitted that the only reasonable and rational explanation for the diminished value placed on the considerations that worked in the applicant’s favour was that the Tribunal had implicitly assumed that the temporary nature of the BVE equated with a short period of time.

25    Having outlined these passages, the applicant submitted that the Tribunal had made a number of errors. It is sufficient for the purposes of the interlocutory application to deal only with one of those alleged errors.

26    The submission, which appears to straddle existing grounds 2 and 3, is that there is an inconsistency between, on the one hand, both the finding at TR [106] that the Tribunal was unable to determine the likely duration of the applicant’s intended stay in the context of assessing the applicant’s risk to the community and the inability to speculate about the process for and outcome of the Ministerial intervention process and, on the other hand, the diminished weight given to the various considerations that were assessed to be in the applicant’s favour on the basis that the applicant’s stay would only be temporary (i.e., short) in duration if the relevant visa were granted. The submission was that this inconsistency constituted legal unreasonableness.

27    While the originating application does not identify this ground as such (the argument is currently set out in ground 2 in terms of the Tribunal taking into account an irrelevant consideration and ground 3 in terms of illogicality), counsel for the applicant suggested that the ground would need to be amended to allege unreasonableness or a misunderstanding of the Tribunal’s statutory task.

28    In response, the Minister submitted that there is no inconsistency at all. That is because the Tribunal’s reasoning can be rationalised without assuming that the Tribunal equated a temporary period with a short period. There is nothing irrational, it was said, about the Tribunal, on the one hand, finding that it cannot assess the risk to the community by reference to a temporary BVE because it is not possible to know how long the applicant will be in Australia and, on the other hand, to take the view that the temporary period of a BVE will necessarily at some stage come to an end and to assess the other considerations that favoured the applicant on that basis. In relation to risk to the community, there can be no sensible quantification of the risk if there is uncertainty about the duration for which the applicant will be in Australia. It was submitted that, once that is accepted as a matter of principle, then the weight to be assigned to the various considerations is a matter within the jurisdiction of the Tribunal.

29    The Minister submitted that, in the context of an interlocutory application, it is not appropriate to delve into the proposed grounds in any depth. The time constraints presented by the interlocutory application would not permit a detailed assessment in any event. At this stage in the proceeding, the evaluation is necessarily limited and impressionistic.

30    With that in mind, I am sufficiently persuaded that the applicant’s reformulated ground based on the differential treatment of the uncertain duration of the BVE raises a serious question to be tried. That differential treatment aligns with the considerations which were, on the one hand, favourable and, on the other hand, unfavourable to the applicant. It is not immediately apparent to me that the uncertainty about the duration of a BVE cannot be factored into the assessment of risk for the purposes of applying para 8.1.2(c) of the Direction 110. That paragraph calls for an assessment of the duration of the relevant applicant’s intended stay, and the type of visa being applied for. It is not obvious to me why the inability to predict the outcome of the Ministerial discretion could not be factored into the assessment of the risk posed by the applicant to the community in an equivalent way to how it was applied to discount the weight of the other considerations that were favourable to the applicant. Or, in other words, why the fact that a BVE has an end date (as the Minister put it) cannot affect the assessment of risk in the same way as it affected the other considerations.

31    The end result of the Tribunal’s analysis was that the allocation of weight to the various considerations was approached on a differential basis. That differential treatment had the result that the weight of the primary considerations in favour of the applicant were discounted in the face of uncertainty, while the primary consideration unfavourable to the applicant was not. As I have said, it is not obvious to me that there was a persuasive justification for that differential treatment. The proper approach to the application of Direction 110 in the circumstances of this case, and a ground of review properly articulated to capture the differential approach to the primary considerations, are serious questions to be tried. If, contrary to what I have concluded above, I were required to state the degree of seriousness, I would not be minded to describe the ground as weak, as the Minister submitted.

Balance of convenience

32    I accept the Minister’s submission that an injunction will cause some prejudice to the Commonwealth.

33    First, the Minister is invested with the duty to enforce s 198 of the Migration Act. There is necessarily an impact on the exercise of that public duty by the Court’s order to grant an injunction. While I am mindful of the seriousness and disruptive impact of such an order on the enforcement of the Minister’s duties (see Mortimer J’s observations (as the Chief Justice then was) in CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [15], [80]–[81]), for the reasons set out above, I do not accept the Minister’s submission that a strong case is needed in order to justify the balance supporting the grant of relief. As I have indicated, and contrary to the Minister’s submissions, I do not consider the applicant’s case on the substantive application to be weak.

34    Secondly, there will be the financial cost of the cancelled travel plans for removal and the applicant’s continued detention. Contrary to what counsel for the applicant submitted, I do not consider that prejudice to be diminished by the legislative choice that the public purse, rather than the applicant, bears that cost.

35    Thirdly, I am also mindful that the applicant is not in a financial position to give an undertaking as to damages, although that consideration is diminished in circumstances of his ongoing detention.

36    Furthermore, I am prepared to assume (without deciding) in the Minister’s favour that, irrespective of the outcome of this interlocutory application or, indeed, the outcome of the substantive application itself, the duty to remove the applicant under s 198(5) of the Migration Act would remain. I am prepared to assume (again without deciding) that (absent an exercise of discretion by the Minister under ss 46A(2) and 48B(1) to lower the bar) the duty under s 198(5) would remain whether the Tribunal’s decision is found to be invalid by this Court or, if so found, whether the Tribunal on remittal were to decide that a BVE should be granted.

37    However, I would nonetheless conclude that the balance of convenience favours the granting of an injunction in the circumstances of this case. That is so for two independent reasons, both of which are informed by the purpose of an injunction to protect the integrity of the Court’s processes.

38    First, I accept the evidence that the applicant would face substantial difficulties if removed in prosecuting the serious question to be tried. The uncontested evidence of Ms Anastassiades is that the Legal Aid Commission would not be in a position to represent the applicant if he is removed. The applicant would be left to prosecute his claims without the Commission’s assistance. This is not simply the unfortunate case of a litigant-in-person unable to navigate the complexities of the law and the legal process to vindicate his legal interest in reviewing an exercise of public power by the Tribunal. It is a case whereby, on the uncontested facts, an order of this Court to refuse an injunction will result in the litigant’s disempowerment, through the loss of existing legal representation, to vindicate his claim. That is not a matter that the Court should take lightly.

39    Nor, it follows, is this simply a case where the applicant would suffer difficulties in effective communication with their legal representatives, either through geographical or technological limitations or language barriers, if removed: cf BKN25 at [24] and [27(a)] (Kennett J).

40    Secondly, it was common ground between the parties that the applicant would not be entitled to a BVE if removed, given he would no longer be in Australia. That seems to follow from cl 050.411 of Migration Regulations 1994 (Cth) Sch 2. The consequence is that, if the applicant were to be successful with the substantive application, and the matter were remitted to the Tribunal to determine the question according to law, that determination would be made according to the facts that prevail at the time of decision – including that the applicant is no longer within Australia. The effect of a decision to refuse the injunction would affect the substantive outcome before the Tribunal in the event that the applicant were successful in the substantive proceeding. While the final relief might not lack utility, given that it will determine the validity of the Tribunal’s decision, the substantive outcome before the Tribunal on remittal, according to the Court’s final orders (if the applicant were to be successful), would be affected by a refusal to grant the injunction such that the practical utility of the orders for the applicant would be frustrated. An injunction would maintain the status quo before the Tribunal in the event that the applicant is successful in the substantive proceeding: see, by analogy, MZAPC at [31]-[32] (Gageler CJ, Gordon, Gleeson and Jagot JJ).

41    It follows in this respect that I do not accept the Minister’s argument that the granting of an injunction would lack utility or that the applicant would suffer no prejudice because the applicant would remain liable for removal.

42    While neither of these matters alone is determinative, when considered alongside the serious question to be tried, I consider that the balance of convenience favours the grant of the injunction. At least in relation to the ground dealt with earlier in these reasons, there is a sufficient likelihood of success to justify an injunction being ordered in the circumstances of this case.

CONCLUSION

43    For the foregoing reasons, I am satisfied that an injunction should issue to prevent the applicant’s removal until the substantive application is determined by the Court or until further order of the Court. To facilitate the injunction, I also will make an order for the Commonwealth of Australia to be added as third respondent.

44    I see no reason why costs should not follow the event in circumstances where (a) the Minister was put on notice that costs would be sought by the applicant if the interlocutory application were contested, and (b) the Minister sought an award of costs in the event that the interlocutory application failed.

Associate:

Dated:    10 July 2026