Federal Court of Australia

Mwambwa v Minister for Immigration and Citizenship [2026] FCA 1217

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent must not, before 11.59 pm AWST on Tuesday 15 September 2026, whether by his officers, delegates, servants or agents, remove the appellant from Australia without the consent of the appellant.

2.    The appellant must, by 4.00 pm AWST on 21 August 2026, file and serve any affidavit evidence on which he seeks to rely in support of the continuation of the above injunction beyond 15 September 2026 (Continuation).

3.    The first respondent must, by 4.00 pm AWST on 28 August 2026, file and serve any affidavit evidence on which he seeks to rely in opposition to the Continuation.

4.    The appellant must, by 4.00 pm AWST on 2 September 2026, file and serve any affidavit evidence in reply to any evidence filed under paragraph 3 above.

5.    The appellant must, by 4.00 pm AWST on 7 September 2026, file and serve an outline of written submissions of no more than 10 pages in length in support of the Continuation.

6.    The first respondent must, by 4.00 pm AWST on 11 September 2026, file and serve an outline of written submissions of no more than 10 pages in length in opposition to the Continuation.

7.    A hearing in relation to the Continuation is listed for 10.15 am on 15 September 2026.

8.    Costs reserved.

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

REASONS FOR JUDGMENT

JACKSON J:

1    These reasons concern an application for an interlocutory injunction by Vincent Mwambwa.

2    Mr Mwambwa is currently in immigration detention, as he is not a citizen of Australia and does not hold a visa. In October 2025 he applied for a Bridging E (Class WE) visa pursuant to s 501(1) of the Migration Act 1958 (Cth) to permit him to stay in Australia on a temporary basis. A delegate of the first respondent (Minister) refused that application, and on 18 March 2025 the Administrative Review Tribunal affirmed the delegate’s decision. On 16 July 2026, in this Court, the primary judge dismissed an application for judicial review of the Tribunal’s decision. This proceeding is an appeal by Mr Mwambwa from that decision.

3    According to Mr Mwambwa, on 5 August 2026, the Australian Border Force notified him that it was anticipated that he would be removed from Australia on or after Monday 17 August 2026. He lodged his notice of appeal on 11 August 2026. Mr Mwambwa requested an undertaking from the Minister not to remove him pending the outcome of the appeal, but the Minister declined to provide that undertaking. On 12 August 2026, he applied for an interlocutory injunction restraining the Minister from removing him from Australia involuntarily until further order.

4    I heard that application on 14 August 2026 as duty judge. At that hearing, I made the orders that appear at the beginning of this judgment. The effect of the orders was that the Department of Home Affairs was restrained from removing Mr Mwambwa from Australia on 17 August. The orders also programmed the matter to a further hearing in one month’s time for the purpose of determining whether to extend the injunction pending the outcome of the appeal.

5    The Minister has requested reasons for the interim orders made on 14 August 2026. It is appropriate for the reasons to be brief, as the parties will have an opportunity to develop their arguments in full at the hearing listed for 15 September 2026.

Principles

6    I considered Mr Mwambwa’s application for the interim injunction on the basis of the well-established principles that the onus was on him as the applicant to show that there was a serious question to be tried, and that it was also necessary to take the balance of convenience into account. Those two factors are interdependent, in the sense that the stronger one of them may be in favour of the grant of an injunction, the less compelling the other may need to be, and vice versa. The Court is not, however, conducting some sort of mechanical calculation. Ultimately, it is assessing which course poses the lesser risk of injustice in all the circumstances. Given the consequences for Mr Mwambwa if the injunction were not to be granted, it went without saying that the third factor often identified as relevant – that damages would not be an adequate remedy – was satisfied here. See generally Frigger v Trenfield [2019] FCA 1746 at [6].

Serious case to be tried

7    On the basis of the materials before me, there appeared to be a serious case to be tried. Given that I will receive fuller submissions at the hearing on 15 September 2026, it is not appropriate that I go into the merits of the appeal in any depth here.

8    There are three grounds in the notice of appeal. For the purposes of these reasons, it is only necessary to mention the first, which concerns the Tribunal’s alleged failure to consider the likely effect that any separation from Mr Mwambwa would have on his four year old daughter (whom I will call W), as required by Ministerial Direction No 110.

9    At the hearing of 14 August 2026, this was advanced as an argument about the wording of the requirement in cl 8.4(4) of Direction No 110 that that matter ‘must be considered’ and the wording of the overall requirement that the Tribunal take the primary consideration of the best interests of minor children in Australia ‘into account’: Direction No 110 cll 6-8. On the authority of Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160; (2024) 306 FCR 372 at [37]-[45], the primary judge held that the difference in wording was a difference in meaning, and that it had not been shown that the Tribunal had failed to consider the effect of separation on Mr Mwambwa’s daughter, W.

10    However at the hearing, counsel for Mr Mwambwa sought to put the argument on the basis of a detailed consideration of the text of Direction No 110 as a whole, noting the various ways in which the Direction refers to requirements to ‘take account of’, ‘have regard to’ or ‘consider’ a matter. It did not appear to me that an argument of that kind had been advanced to the primary judge or, for that matter, to the Full Court in Nguyen. Counsel for Mr Mwambwa described it as ‘a substantial refinement of what was put to the primary judge’ (ts 7). The textual intricacy of Direction No 110 seemed to me to leave it open to make the argument.

11    I was also conscious that the Tribunal’s express treatment of the subject of the interests of W was brief and did not expressly advert to the effect of separation on her. That is in circumstances where there is evidence that W has developmental delays, which the Tribunal accepted, and which I will briefly describe below in connection with the balance of convenience.

12    It therefore appeared to me that there was a serious question to be considered on appeal as to whether, on a proper construction of its reasons, the Tribunal did not give that matter the attention required by Direction No 110 (however that requirement is expressed).

13    While the primary judge was bound to apply Nguyen, it will be open to Mr Mwambwa to submit to a Full Court on appeal that that case was wrongly decided. To the extent that the matters described above were not articulated before the primary judge, it will be open to Mr Mwambwa to seek leave to put them to the Full Court. None of this encourages such steps and much less, of course, indicates what view a Full Court might take of them. It is just an acknowledgement that they are steps that are open to Mr Mwambwa to take.

14    What has been said is sufficient to explain why I considered that there is a serious case to be tried on appeal, albeit that the case did not appear to be strong. It is not necessary or appropriate to say more about ground 1 or to comment on the other two grounds. It is a view I reached at a very early stage of the matter on the basis of necessarily limited submissions and evidence, all advanced in circumstances of some urgency. The parties will be free to develop further, or different, submissions on 15 September 2026 which may or may not lead me to reach a different view about the existence of a serious case to be tried.

Balance of convenience

15    The Minister properly accepted that removing Mr Mwambwa would undermine the subject-matter of the appeal proceeding because he cannot be granted a Bridging E (Class WE) visa if he is not in Australia: Migration Regulations 1994 (Cth) Sch 2, cl 050.411.

16    It is clear that removing Mr Mwambwa to Zambia will have a drastic and potentially irreversible effect on his life and the lives of his partner and daughter. There was considerable debate at the hearing on 14 August 2026 about whether success on the appeal has any prospect of averting that consequence anyway, a matter to which I will return. But putting that to one side for now, the interests of Mr Mwambwa’s daughter W were a matter on which I put considerable weight. As mentioned, there is evidence that she has developmental delays. An affidavit of her mother, Paradis Brya Knezovich, annexed a speech pathology assessment summary dated 24 March 2025 and what appeared to be a speech pathology assessment report dated 20 October 2025. There is no need to go into detail about the assessments at this stage: they indicate that W demonstrated skills across a range of ‘language precursors’ (in the words of the first assessment), including body language and gesture, but that her ability to use and to understand verbal communications is limited. The second report describes this as ‘a severe expressive and receptive language delay’ and expresses the opinion that W’s ‘language difficulties are impacting on her ability to communicate and interact with her family and peers’.

17    The Tribunal accepted that W has ‘a developmental delay’ and that she requires assistance from Mr Mwambwa ‘in order to be able to financially access the necessary supports and therapists identified in the speech pathology assessment summary and to support her through this process’ (Tribunal decision para 122). The Tribunal also accepted that Mr Mwambwa intended to resume his parenting responsibilities for W if released from immigration detention. Notwithstanding that Mr Mwambwa was found to have engaged in family violence, there is a case to be made that his presence will still be of important assistance in bringing up W, and helping to deal with her developmental delays. While the evidence is not entirely clear, it appears that both W and Ms Knezovich are Australian citizens. I put considerable weight on their interests in favour of the balance of convenience as supporting the grant of an interlocutory injunction. I also put weight on the fact that the injunction I granted would only operate for a relatively short period of time.

18    I also put weight, as opposing considerations, on the interests of the Minister in seeing that the statutory scheme under the Migration Act is not frustrated (see CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [80] (Mortimer J)) and the fact that to cancel the imminent removal of Mr Mwambwa will no doubt cause inconvenience and cost to the Department (although the Minister had not put on any evidence of that). Mr Mwambwa’s ongoing detention will also cause the Commonwealth to incur ongoing costs. But there was no evidence of what those costs were, and the Minister did not take any point about the absence of an undertaking as to damages in this case. These matters did not outweigh the pressing human consequences I have outlined above. Nor did the Minister submit that the nature of the proceeding as an appeal from judgment at first instance made any difference.

19    The Minister relied on observations about the strength of the case required to restrain performance of the statutory duty of removal found in s 198(5) of the Migration Act in the judgment of Colvin J and myself in Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC [2024] FCAFC 34; (2024) 302 FCR 159. On its face, s 198(5) requires officers of the Department to remove Mr Mwambwa from Australia as soon as reasonably practicable, and that duty is expressly stated to apply regardless of whether the non-citizen has made a valid application for a bridging visa. Our observations in MZAPC were, however, encapsulated in the following sentence from [130]: ‘In considering the balance of convenience [the Court] will have due regard to the statutory duty and will require a strong case or serious consequences or both in order to justify relief.’ I was satisfied that the serious consequences for Mr Mwambwa, his partner and their daughter were such as to justify the interim relief I granted on 14 August 2026. That counterbalanced the quality of the serious question to be tried, as less than strong.

20    As has been said, the real question as to the balance of convenience concerned whether success on the appeal would have the effect of averting, or at least delaying, those consequences. A submission that the Minister made in writing about Mr Mwambwa’s eligibility to apply for the Bridging E (Class WE) visa was met by a submission made orally that led the Minister, properly, not to rely on the written submission. But counsel for the Minister submitted orally that even if the appeal is successful, Mr Mwambwa would remain susceptible to the operation of s 198(5) of the Migration Act which, as has been said, appears to require his removal even if he has applied for a bridging visa. Once the appeal is over, the power of the Court to preserve the integrity of its own processes (Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5 at [25]) will be exhausted. It appeared to be common ground that Mr Mwambwa previously unsuccessfully applied for a protection visa, which means that he is no longer eligible to apply for a visa of that kind: Migration Act s 48A. Being in detention, he cannot apply for any other visa (other than a bridging visa): s 195(2). So, counsel submitted, the appeal would effectively be futile, because Mr Mwambwa would be likely to be removed before his application for review was determined and any bridging visa granted (assuming success on review).

21    In response to this in his oral reply submissions, counsel for Mr Mwambwa submitted that the Minister was essentially submitting that he would frustrate the purpose of the proceeding, by removing Mr Mwambwa from Australia at the first opportunity. I was not satisfied, however, that this was the effect of the Minister’s submission. If the appeal is allowed, and the decision of the Tribunal is found to lack one or more conditions required for it to be legally effective, the matter would be sent back to the Tribunal for reconsideration. That would not represent any endorsement by this Court as to the desirability or lawfulness of Mr Mwambwa remaining in Australia thereafter.

22    Of more concern to me was the possibility raised by counsel for Mr Mwambwa that the Tribunal hearing might be expedited and, as he submitted, that a bridging visa might be issued very quickly if the Tribunal were to reverse the decision of the delegate to refuse it. I am conscious that, as the Minister submitted, he has prepared for Mr Mwambwa’s imminent removal on two occasions now, with the proceedings in this Court effectively precluding that. But by the same token, Mr Mwambwa was able to prosecute the earlier Tribunal proceeding to its conclusion without being removed, and it is not immediately obvious why that could not happen again.

23    In short, counsel on both sides were making submissions about what was likely to happen on the basis of assertions of fact and speculation addressed from the bar table. I mean no criticism by this; it was an inevitable outcome of the very short period of time within which the hearing of 14 August 2026 came on. It was that very urgency that left me concerned that if the Court were to decide that Mr Mwambwa is likely to be removed before any further review ran its course, it would be making that decision on the basis of speculation rather than evidence. Conversely, if the Court were to have granted an interlocutory injunction effective until the end of the appeal, that would be on the basis of similar speculation about the feasibility of expedition or some other measure that might see the review concluded before he was removed.

Conclusion

24    For those reasons, I considered that the course that presented the lower risk of injustice would be to restrain Mr Mwambwa’s removal from Australia for a relatively short period of time to give the parties the opportunity to present better evidence as to the above particular aspect of the balance of convenience, and generally to develop their respective cases in a more orderly way than had been possible in the short period of time between the filing of the application for an interlocutory injunction and the hearing of 14 August 2026.

Associate:

Dated:    25 August 2026