Federal Court of Australia

FLLB v Minister for Immigration and Citizenship [2026] FCA 1298

ORDERS

THE COURT ORDERS THAT:

1.    The first and second respondents (by their officers, servants or agents) be restrained from removing, or causing to be removed, the applicant from Australia to the Republic of Naoero pending the final hearing and determination of this proceeding or until further order.

2.    The applicant file and serve his written submissions (not exceeding 10 pages) and any affidavits upon which he wishes to rely in respect of the substantive application by
4.30 pm on the date that is 28 days before the date of the hearing.

3.    The respondents file and serve their written submissions (not exceeding 10 pages) and any affidavits upon which they wish to rely by 4.30 pm on the date that is 14 days before the date of the hearing.

4.    The applicant file and serve his written submissions in reply (not exceeding 3 pages) and any affidavits in reply upon which he wishes to rely by 4.30 pm on the date that is 7 days before the date of the hearing.

5.    The respondents file and serve an application book consisting of the originating application, relevant affidavits and written submissions by 4.30 pm on the date that is 3 days before the date of the hearing.

6.    The parties prepare a joint list of authorities and legislation, including a copy of the relevant legislative provisions, to be filed and served by 4.30 pm on the date that is 3 days before the date of the hearing.

7.    The application book, joint list of authorities and written submissions be provided to the Court in electronic format in accordance with GPN-eBOOKS and must:

(a)    include an index which contains an individual hyperlink to each document included in the index;

(b)    comprise only of PDF documents which:

(i)    are in native format, or where impracticable to be provided in that form, in scanned and searchable format;

(ii)    include appropriate bookmarks;

(iii)    include as the file name the corresponding tab number in the index followed by a sufficient descriptor of the document or authority.

8.    The matter be set down for a hearing on a date to be fixed.

9.    Costs are reserved.

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

REASONS FOR JUDGMENT

(DELIVERED EX TEMPORE AND REVISED)

RANGIAH J:

1    The applicant has been notified of the respondents’ intention to remove him from Australia to the Republic of Naoero (formerly Nauru) on or after 2 September 2026. The applicant has applied for an interim injunction on an urgent basis to restrain his removal to Naoero.

2    The applicant’s Originating Application seeks a declaration that he is not prevented by s 48A of the Migration Act 1958 (Cth) (the Act) from making a second application for a Protection Visa. If the applicant were successful in obtaining such a declaration, he would be entitled to make an application for a Protection Visa based on a claimed fear of persecution in Naoero. And if any second application were then successful, he would not be liable to be removed to Naoero.

3    The applicant is a national of South Sudan. He arrived in Australia as the holder of a Global Special Humanitarian (Subclass 202) Visa in 2007 at the age of 17.

4    On 19 June 2017, the applicant’s visa was cancelled under s 501(3A) of the Act after he was convicted of assault occasioning actual bodily harm and sentenced to 18 months’ imprisonment. On 2 October 2018, the Administrative Appeals Tribunal (the Tribunal) affirmed a decision not to revoke the cancellation of the applicant’s visa.

5    On 6 December 2018, the applicant applied for a Protection Visa (Subclass 866) on the basis of his claim to fear persecution in South Sudan. The Minister found that the applicant satisfied the criteria for a Protection Visa in ss 36(2)(a) and (aa), but refused the grant of the visa on the basis that the applicant did not satisfy ss 36(1C) and (2C) of the Act (danger to the Australian community). The Tribunal affirmed the Minister’s decision on 14 October 2022.

6    In the wake of the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137, the applicant was granted a Bridging (Removal Pending) (Subclass 070) Visa (Bridging Visa R) and released from immigration detention on 12 November 2023.

7    On 17 July 2026, the applicant was granted a Long Term Stay Visa by Naoero. On 11 August 2026, the applicant was notified that his Bridging Visa R was no longer in effect and he was then detained under s 189 of the Act.

8    On 14 August 2026, the applicant was notified that he would be removed from Australia on or after 21 August 2026. His removal is now scheduled to take place not before 2 September 2026.

9    The power of the Court to make an interlocutory order to protect the integrity of its own processes extends to an interlocutory injunction preventing the removal of a person under s 198(6) of the Act: Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5; 99 ALJR 486 (MZAPC) at [29]-[31]. By reason of the qualification “as soon as reasonably practicable”, s 198(6) yields to the grant of an interlocutory injunction to prevent frustration of the proceeding: MZAPC at [39]. While an interlocutory injunction is in force, the occasion for the exercise of the power and discharge of the duty under s 198(6) does not exist: MZAPC at [40]. So construed, an interlocutory injunction cannot, contrary to the respondents’ submission, properly be regarded as interference with the administration of the Act.

10    The applicant must demonstrate a prima facie case, in the sense of a sufficient likelihood of success to justify preservation of the status quo pending a final hearing, and that the balance of convenience favours granting an injunction: Australian Broadcasting Corporation v O’Neil (2006) 227 CLR 57 at [65]. The apparent strength of the applicant’s case is a consideration relevant to the assessment of the balance of convenience: Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at [67].

11    Turning to the apparent strength of the applicant’s case, the final relief he seeks is a declaration to the effect that he is not prevented by s 48A of the Act from making a second Protection Visa application in which he would claim asylum based on feared persecution in Naoero (and South Sudan if refouled from Naoero). He claims to fear a significant and serious risk of harm in Naoero on the basis of his race and criminal history. He claims that his life and liberty would be at risk and that he may be removed to Sudan or South Sudan by Naoeroan authorities.

12    Section 48A(1) of the Act provides, relevantly:

48A    No further applications for protection visa after refusal or cancellation

(1)    Subject to section 48B, a non-citizen who, while in the migration zone, has made:

(a)    an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined)…

…

may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone.

13    The applicant argues that the expression “further” means “going beyond what exists or has been dealt with”, citing SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 at [36]. The applicant argues that s 48A(1) only operates to preclude an application that has a sufficient nexus with the previous application for a Protection Visa. He argues that since his proposed second application for a Protection Visa is to be based on different grounds and a different country, his proposed application is not precluded by s 48A(1).

14    In response, the respondents submit that s 48A(1C) makes it clear that the proposed second application cannot be made. That section provides:

(1C)    Subsections (1) and (1B) apply in relation to a non-citizen regardless of any of the following:

(a)    the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy;

(b)    whether the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy existed earlier;

(c)    the grounds on which an earlier application was made or the criteria which the non-citizen earlier claimed to satisfy;

(d)    the grounds on which a cancelled protection visa was granted or the criteria the non-citizen satisfied for the grant of that visa.

15    The respondents submit that the expression “further application” in s 48A(1) refers to any subsequent application for a Protection Visa. They also submit that the applicant’s submission is contrary to Minister for Immigration and Border Protection v CTW17 [2019] FCAFC 156; 271 FCR 173 (CTW17) at [32], where the Full Court held that s 48A(1C) is directed to clarifying and reinforcing the operation of s 48A as a bar upon the making of a subsequent Protection Visa application, irrespective of whether the subsequent application is based on different criteria to those which formed the basis for the previous application, or a criterion or ground that did not exist earlier. They also rely upon AZABF v Minister for Immigration and Border Protection [2015] FCAFC 174; 235 FCR 150 (AZABF) where the Full Court held that s 48A(1) prevented an applicant from applying for another Protection Visa based on a claim for complementary protection even though s 36(2)(aa) of the Act had not been enacted at the time of his original application.

16    The applicant argues that CTW17 and AZABF were wrongly decided, or are distinguishable because of statutory amendments made since those cases were decided.

17    The applicant argues, first, that the ordinary meaning of “further” is consistent with a construction of s 48A(1) as only operating as a bar to a second application that has a sufficient connection to the previous application.

18    Second, the applicant argues that the purpose of s 48A(1) is to ensure that Protection Visa applicants do not make repeated claims to prolong the resolution of their status in Australia, whereas an application of the kind proposed by the applicant is not in that category.

19    Third, the applicant argues that the language of s 48A(1C) is not apt to exclude the making of a second Protection Visa application in respect of a different country.

20    Fourth, the applicant argues the passages from the Explanatory Memorandum cited in CTW17 were only given by way of explanation of the intended operation of the new s 48A(2)(aa) and not the operation of s 48A(1).

21    Fifth, the applicant argues that a construction in the manner contended for by the applicant is supported by the principle of legality.

22    Sixth, the applicant argues that the enactment subsequent to CTW17 and AZABF of ss 76AAA and 198AHB affect the construction of s 48A(1). Section 198AHB allows the Commonwealth to enter into a third country reception arrangement in relation to the removal of non-citizens from Australia. Section 76AAA facilitates the removal of certain non-citizens to such a country. Section 76AAA(1)(d), which precludes a person from being removed to a third country reception country where the person has an undetermined claim for protection or has a protection finding, is submitted to contemplate a claim for protection in respect of a third country reception country. It is submitted that when s 48A(1) is read in light of ss 76AAA and 198AHB, it cannot be intended to prevent a second Protection Visa application being made in respect of a foreign country with a third country reception arrangement.

23    The respondents’ submissions concerning the proper construction of s 48A(1) make it clear that any second application for a Protection Visa would be refused. The respondents do not submit that the declaration sought by the applicant is merely abstract or theoretical, noting that this Court has recognised that proceedings may be commenced in relation to a future migration decision: SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26; 200 FCR 207; BSX15 v Minister for Immigration and Border Protection [2016] FCA 1432 at [154] (Markovic J).

24    Having regard to the urgency of the present application, it is only possible to make an impressionistic evaluation of the strength of the applicant’s case for the declaration he seeks. Insofar as the applicant seeks to distinguish CTW17 and AZABF on the basis of subsequent legislative changes, he has demonstrated an arguable case, although it cannot be described as strong.

25    As to the balance of convenience, a significant factor is that if an interim injunction is not granted and the applicant is removed to Naoero, there will be no utility in the declaration sought in the substantive proceeding. The applicant could not validly make any application for a Protection Visa once he is removed from Australia because cl 866.411 of Sch 2 of the Migration Regulations 1994 (Cth) requires that an “applicant must be in Australia” at the time of the grant. Accordingly, refusing an interim injunction would effectively determine the substantive proceeding.

26    There is little evidence about the merits of the applicant’s proposed second application for a Protection Visa. However, the respondents have not contended that the proposed application would not be genuinely made. There would be a potential for injustice were the applicant to be removed to a country in respect of which he makes an apparently genuine claim to fear serious and significant harm on the basis of his race and criminal history, without having had the opportunity to prosecute his case that he is entitled to make an application for a Protection Visa. If granted, a Protection Visa would avoid such harm.

27    I am satisfied that the applicant has demonstrated a case of sufficient merit to warrant granting an interim injunction in circumstances where refusal of such an injunction would effectively defeat his substantive proceeding and its ultimate purpose.

Associate:    

Dated:    15 September 2026