Federal Court of Australia

AJQ24 v Commonwealth of Australia (No 2) [2026] FCA 1323

ORDERS

THE COURT ORDERS THAT:

1.    The interim injunction granted by order 1 of the orders made on 21 August 2026, and extended by order 1 of the orders made on 31 August 2026, be discharged with effect from 11 September 2026 at 5.00pm (AEST).

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

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1    In this proceeding, the applicant, AJQ24, sues the respondent, the Commonwealth of Australia (Commonwealth), for damages for false imprisonment in respect of a period during which AJQ24 was held in immigration detention, from 13 April 2018 to 10 or 11 November 2023. Following the delivery of the High Court’s judgment in Abdel-Hady v Commonwealth (2026) 100 ALJR 742; [2026] HCA 17 (Abdel-Hady), the Commonwealth accepted that AJQ24 had been falsely imprisoned for the period from 25 May 2021 to 8 November 2023, and consented to judgment being entered against it in respect of that period, with damages to be assessed. Described broadly, the issues that remain for final determination in the proceeding include:

(a)    the assessment of damages in respect of the period of false imprisonment that is now admitted by the Commonwealth;

(b)    AJQ24’s claim that he was falsely imprisoned by the Commonwealth throughout the remainder of the period for which he was held in immigration detention, from 13 April 2018 to 25 May 2021;

(c)    AJQ24’s claim that he was falsely imprisoned by the Commonwealth in the period following his release from immigration detention in November 2023 on the basis that the purported imposition of certain conditions on the visa granted to him amounted to detention;

(d)    AJQ24’s claim that the Commonwealth is liable for various alleged assaults perpetrated on him during the period for which he was detained in immigration detention; and

(e)    the Commonwealth’s cross-claim against a Serco Australia Pty Ltd, which was contracted to provide services in connection with the immigration detention of AJQ24.

2    At a case management hearing held on 3 August 2026, the Court made various orders including an order, made with the agreement of the parties, which provided for the conduct a mediation by 30 October 2026, by a mediator agreed upon by the parties or by a registrar of the Court.

3    On 19 August 2026, officers of the Australian Border Force (ABF) arranged to meet with AJQ24. They provided him with some documents. He was then detained in immigration detention under s 189 of the Migration Act 1958 (Cth) and taken to Villawood Immigration Detention Centre. On 20 August 2026, AJQ24 was given a notice which advised him that he was “liable for removal from Australia under s 198 of the Migration Act 1958” (Notice of Removal) and stated (among other things):

Arrangements have been made for your removal. It is anticipated that you will be removed from Australia on or after 27/08/2026. The Department will monitor these arrangements until your departure to ensure your removal can be affected as intended, including confirming that valid travel documentation is available, that you are medically fit to travel and that you do not have any outstanding legal matters impacting on your removal.

(Emphasis in original.)

4    On 21 August 2026, AJQ24 filed an interlocutory application in the proceeding, seeking an interlocutory injunction restraining the Commonwealth from removing him from Australia in accordance with its stated intention, and a writ of habeas corpus (or an order in the nature of habeas corpus), commanding his release from immigration detention. The interlocutory application also seeks orders:

(a)    permitting AJQ24 to amend his originating application in the present proceeding to include (among other things) claims for a declaration that AJQ24 has been unlawfully detained in immigration detention since 19 August 2026, an order releasing him from immigration detention, and damages for false imprisonment in immigration detention since 19 August 2026; and

(b)    requiring that the Commonwealth make discovery of various classes of documents that are arguably relevant to the questions of the lawfulness of AJQ24’s intended removal from Australia and of his current detention.

5    At the case management hearing on 21 August 2026, at which the interlocutory application was mentioned, the Commonwealth informed the Court that it was proposed that AJQ24 would be removed to the Republic of Naoero. (The official name of that country was changed from “Nauru” to “Naoero” in May 2026. In these reasons, it will be convenient to refer to the country consistently as “Naoero”, even though some of the events described occurred before the change of name.) The evidence now before the Court suggests that AJQ24 was told that he was to be taken to Naoero on 19 August 2026, although he may not have relayed that information to his legal representatives.

6    During the case management hearing, counsel for the Commonwealth was able to obtain further instructions, and informed the Court that, despite the terms of the Notice of Removal handed to AJQ24 on 20 August 2026, the Commonwealth now did not expect or intend to remove AJQ24 from Australia to Naoero before 1 September 2026. Both parties consented to the question of whether the interim injunction should be extended being determined on the basis of written submissions.

7    At the case management hearing, I made an interim injunction restraining the Commonwealth from removing AJQ24 from Australia until 1 September 2026 or until further order, and orders to enable the parties to advance evidence and submissions on the question of whether that interim injunction should be extended. I considered it appropriate to make the interim injunction because it appeared to me that, even though the Commonwealth had indicated that it had no intention to remove AJQ24 before 1 September 2026, for so long as AJQ24 remains in detention on the basis that officers believe him to be an unlawful non-citizen, they may remain under a statutory duty to remove him if it is “reasonably practicable” to do so, and the Commonwealth had not offered an undertaking that its officers would not remove AJQ24 from Australia. (I make no criticism of the failure to offer such an undertaking; it is not obvious to me that it would have been appropriate to have done so where the Commonwealth maintains that, at least in the absence of an injunction issued by a court, its officers are under a duty to remove AJQ24 under s 198 of the Migration Act as soon as reasonably practicable.) The making of the interim injunction was intended to ensure that the position was, and would remain, clear – that AJQ24 would not be removed from Australia – until the parties had had an opportunity to provide evidence and submissions in relation to the question of whether the interim injunction should be further extended.

8    The parties each subsequently sought to file further evidence and submissions in response to issues raised by the other party which they had not anticipated. By 31 August 2026, it had become apparent that I would not be in a position to make a decision regarding the extension of the interim injunction before 1 September 2026, so I made a further order extending the interim injunction until further order. Late in the evening of 1 September 2026, the Commonwealth advised the Court that it now intended to remove AJQ24 from Australia to Naoero on 3 September 2026, and lodged for filing a further submission in response to further submissions that had been filed by AJQ24 on 31 August 2026 (outside the time fixed by the order permitting the filing of those submissions and not limited to submissions in reply, as ordered). In the interests of justice, I have considered it appropriate to have regard to all of the evidence and submissions filed by both parties, even though this has expanded the issues and extended the time taken to deliver this judgment, and even though I am conscious it has resulted in officers being unable to remove AJQ24 to Naoero on 3 September 2026 in accordance with the Commonwealth’s stated intention.

9    The most immediate and pressing issue is whether the Commonwealth and its officers should continue to be restrained from removing AJQ24 from Australia on an interim or interlocutory basis, pending the hearing and determination of the other issues raised by AJQ24’s interlocutory application. The basis on which AJQ24 claims that his current detention in immigration detention (since 19 August 2026) is unlawful, to the extent that that issue is distinct from the question of his removal from Australia, has not been the focus of the evidence and submissions of the parties.

10    Accordingly, this judgment deals with the question of whether the interim injunction which is currently in force should be extended pending the determination of the remaining issues arising on AJQ24’s interlocutory application and (subject to possible further argument) the final determination of the questions raised by AJQ24 which bear on whether he is now an unlawful non-citizen, and on the lawfulness of his continuing detention.

11    I recognise that AJQ24’s detention and, assuming it proceeds, his impending removal from Australia, are likely to have an immediate and profound effect on his life. It is not for this Court to express any view about the policy of the Commonwealth or the manner of its implementation, except insofar as questions arise in relation to the lawfulness of past or proposed decisions or action which bear on the question of whether AJQ24’s removal from Australia to Naoero should continue to be restrained.

12    For the reasons that follow, I have come to the view that AJQ24 has not established a serious question to be tried in relation to the validity of the decisions leading up to his detention on 19 August 2026, or the lawfulness of his proposed removal to Naoero. I am also not satisfied that it is necessary or appropriate to extend the operation of the interim injunction in order to prevent the conduct of the present proceeding from being frustrated or otherwise to protect the processes of the Court in connection with the mediation, hearing and determination of the present proceeding in which AJQ24 seeks damages against the Commonwealth for false imprisonment and assault.

13    It follows that the interim injunction should be discharged. AJQ24’s solicitors have indicated that, in that event, they have instructions to seek leave to appeal against an adverse decision or to approach the High Court for relief. Given the extreme seriousness of the consequences of this decision for AJQ24, and balancing that against the public interest in the proper administration of the Migration Act, I consider it appropriate to continue the interim injunction in force for a short further period, on the basis of AJQ24’s offer to provide the usual undertaking as to damages. This will enable AJQ24 to apply for leave to appeal or other relief and to seek interlocutory injunctive relief from another judge or court, and ensure that his rights in that regard are not frustrated should my decision be wrong.

Background

14    AJQ24 arrived in Australia on about 17 January 2012, as an unlawful maritime arrival. He applied for a protection visa on the basis that he was stateless and that he feared persecution in his country of former habitual residence, Iran. On 4 July 2012, AJQ24 was granted a protection visa. In the course of making the decision to grant AJQ24 a protection visa, a delegate of the Minister for Immigration and Citizenship (Minister) made a finding that AJQ24 satisfied the criterion set out in s 36(2)(a) of the Migration Act; that is, that he is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because he is a refugee.

15    On 12 March 2018, another delegate made a decision under s 109 of the Migration Act to cancel AJQ24’s protection visa on the basis that he had provided incorrect answers to questions in his visa application form, and so had not complied with s 101(b) of the Migration Act. The answers which the delegate found to be incorrect included AJQ24’s claims that he was stateless and that he would be harmed if he returned to Iran. The delegate found that he was, in fact, a citizen of Iran and was not stateless as he had claimed.

16    On 10 November 2023, following the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137; [2023] HCA 37 (NZYQ), AJQ24 was granted a Class WR (Bridging R (Removal Pending)) (subclass 070) visa (BVR). He was subsequently granted further BVRs on 18 November 2023 (twice), 30 January 2024, and 12 March 2024.

17    AJQ24 can be described as a member of the “NZYQ cohort” in the sense that he was among the non-citizens who were released from detention immediately following the decision in NZYQ, because he was a person for whom removal from Australia was not, at that time, reasonably practicable in the reasonably foreseeable future. However, his circumstances differ in some respects from the circumstances of the applicant in NZYQ itself and from those of many other persons in the NZYQ cohort. In particular, there is no suggestion that AJQ24 has been convicted of any serious criminal offence, and what led to his being held in immigration detention was the cancellation of a visa under s 109 of the Migration Act rather than refusal of a visa application or cancellation of a visa on character grounds in accordance with s 501 (or related provisions) of the Migration Act.

18    On 18 February 2026, an officer in the Department of Home Affairs (Department) completed an application to the government of Naoero for the grant to AJQ24 of a long-term stay visa (Visa Application). In the part of the Visa Application which requested his “Country of Citizenship”, the officer wrote: “IRAN”. Also on 18 February 2026, an officer of the Department created a “Statement of Identity” which was expressed to be “for the purpose of travel between Australia and [Naoero]”. The Statement of Identity declared that the person who appeared in a particular photograph was known to the Department as AJQ24 (using his name). The Statement of Identity included AJQ24’s (assumed) date of birth, and identified both his place of birth and citizenship as “IRAN”. The Visa Application and the Statement of Identity were evidently provided to the government of Naoero on or after 18 February 2026.

19    On 2 April 2026, the Director of Immigration of Naoero, apparently acting pursuant to the Immigration (Long Term Stay Visa) Regulations 2025 (Nr), granted AJQ24 a Long Term Stay Visa (Naoeroan visa). AJQ24 remained unaware of the fact that the Commonwealth had applied for the Naoeroan visa in his name or that it had been granted.

20    According to the affidavit of AJQ24’s solicitor, Ziaullah Zarifi, on 19 August 2026, AJQ24 was asked to attend a police station for an interview with officers of the ABF. The evidence adduced by the Commonwealth is to the effect that AJQ24 was handed a “Notification of Cessation of Bridging R visa” dated 19 August 2026. This is disputed by AJQ24, and is further addressed at [41]-[55] below. AJQ24 was then detained and taken to Villawood Immigration Detention Centre.

21    In written submissions filed on 27 August 2026, the Commonwealth pointed out that AJQ24 had not (at that stage) proffered an undertaking as to damages. The Commonwealth submitted that this weighed against the continuation of the interim injunction. In submissions in reply, filed late on 31 August 2026, AJQ24 indicated that he is prepared to give the usual undertaking as to damages.

Relevant provisions of the Migration Act

22    Section 198AHB of the Migration Act provides:

198AHB Power to take action etc. in relation to third country reception arrangement

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

Note: The rules of natural justice do not apply to entering into a third country reception arrangement with a foreign country, including anything done preparatory to entering into an arrangement: see subsection 198AHAA(1).

(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.

Note: 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 anything done in relation to the third country reception functions of a foreign country: see subsection 198AHAA(2).

(3)    To avoid doubt, subsection (2) is intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action.

(4)    Nothing in this section limits:

(a)    any other power or duty under this Act; or

(b)    the executive power of the Commonwealth.

(5)    In this section:

action includes action in a foreign country.

arrangement includes an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.

third country reception functions, of a foreign country, means 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.

23    The uncontradicted evidence adduced by the Commonwealth supports the conclusion that Naoero is a foreign country that is a party to a third country reception arrangement, which is evidenced by a Memorandum of Understanding entered into between Australia and Naoero dated 29 August 2025 (MOU).

24    Insofar as it is potentially relevant to the circumstances in which AJQ24 finds himself, s 76AAA of the Migration Act provides:

76AAA Cessation of certain bridging visas—holder has permission to enter and remain in another country

(1)    This section applies in relation to a non‑citizen if:

(a)    the non‑citizen holds a Subclass 070 (Bridging (Removal Pending)) visa; 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 section 198AHB) that is in force; and

(d)    none of the following apply:

(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 subsection 197C(3) if the non‑citizen were an unlawful non‑citizen;

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

Note: The rules of natural justice do not apply in relation to third country reception arrangements: see section 198AHAA.

(2)    The Minister must give the non‑citizen notice that this section applies in relation to the non‑citizen.

(3)    The notice:

(a)    must be given as soon as reasonably practicable after this section starts to apply in relation to the non‑citizen; and

(b)    may be given orally or in writing.

(4)    Despite any other provision of this Act or the regulations, the visa ceases to be in effect immediately after:

(a)    if the notice is given by a method specified in section 494B—the non‑citizen is taken to have received the notice; or

(b)    otherwise—the non‑citizen receives the notice.

Note 1: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.

Note 2: The visa period for the visa ends when it ceases to be in effect under this subsection.

(5)    The rules of natural justice do not apply to the giving of a notice under subsection (2).

(6)    For the purposes of paragraph (1)(b), a permission to enter the foreign country may be unconditional or a permission to enter that is subject to the non‑citizen doing one or more things required by the foreign country that the non‑citizen is capable of doing before entering the country.

…

25    Relevantly to the operation of s 76AAA(4) of the Migration Act, s 494B(2) states that one method by which the Minister may give a document to a person “consists of the Minister (including by way of an authorised officer) handing the document to the recipient”. The evidence advanced by the Commonwealth is to the effect that, on 19 August 2026, a notice under s 76AAA (Notice of Cessation) was handed to AJQ24 by an authorised officer. Section 494C(2) provides that, where a document is given to a person by that method, “the person is taken to have received the document when it is handed to the person”. (I shall consider below whether there is a serious question to be tried as to whether the Notice of Cessation was in fact received by AJQ24.)

26    Section 189(1) of the Migration Act provides that, “[i]f an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non‑citizen, the officer must detain the person”. AJQ24 was apparently detained on 19 August 2026 on the basis that an officer knew or reasonably suspected that he had been given a valid notice under s 76AAA(2), that his BVR had consequently ceased to be in effect by operation of s 76AAA(4), and that he was therefore an unlawful non-citizen.

27    Section 196 of the Migration Act relevantly provides:

196 Duration of detention

(1)    An unlawful non‑citizen detained under section 189 must be kept in immigration detention until:

(a)    he or she is removed from Australia under section 198 or 199; or

(aa)    an officer begins to deal with the non‑citizen under subsection 198AD(3); or

(b)    he or she is deported under section 200; or

(c)    he or she is granted a visa.

…

(3)    To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non‑citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non‑citizen has been granted a visa.

…

28    Section 198 of the Migration Act, entitled “Removal from Australia of unlawful non‑citizens”, imposes duties on “an officer” to remove an unlawful non-citizen from Australia if certain conditions are satisfied in relation to that person. The particular provision which, according to the Commonwealth, applies to AJQ24 is s 198(5), which states:

(5)    An officer must remove as soon as reasonably practicable an unlawful non‑citizen if the non‑citizen:

(a)    is a detainee; and

(b)    neither applied for a substantive visa in accordance with subsection 195(1) nor applied under section 137K for revocation of the cancellation of a substantive visa;

regardless of whether the non‑citizen has made a valid application for a bridging visa.

29    The duty imposed by s 198(5) is engaged only in respect of a person who is, in fact, an “unlawful non-citizen” – that is, a non-citizen who does not hold a visa that is in effect. It follows that s 198(5) would not apply to require AJQ24’s removal if, as he contends is the case, his BVR did not validly cease to be in effect by operation of s 76AAA(4).

30    If the true position is (as AJQ24 claims) that he remains the holder of a valid BVR, and thus a lawful non-citizen, then his removal from Australia, as proposed by the Commonwealth, would not be authorised or required by s 198(5) of the Migration Act. On the other hand, if the true position is (as the Commonwealth maintains) that AJQ24’s BVR ceased to be in force on 19 August 2026, by operation of s 76AAA(4) of the Migration Act, then s 198(5) would (subject any continuing interlocutory injunction) require his removal.

31    The duty to detain a person under s 189 applies if an officer reasonably suspects that the person is an unlawful non-citizen. It follows that it is possible for a person to be lawfully detained under s 189, even though it later turns out that the person was actually a lawful non-citizen (eg, because the apparent cancellation or cessation of their visa was not legally effective). However, it is difficult to see how an officer of the Commonwealth could continue to hold a reasonable suspicion that the person was an unlawful non-citizen after a court had made a final determination which had the effect that they continued to hold a valid visa. It follows that, if the Court in this proceeding were to finally determine that s 76AAA(4) had not operated to cause AJQ24’s BVR to cease to be in effect, he would then be entitled to be released from detention. It does not seem to me to follow that an officer could not possibly have reasonably suspected that his BVR had ceased to be in effect, or that his detention up until that point would necessarily have been unlawful.

32    In the course of deciding his application for a protection visa in July 2012, a delegate of the predecessor to the Minister made a determination that AJQ24 was stateless and had a well-founded fear of persecution in Iran. One of the arguments advanced by AJQ24 relies on the fact that he is a person to whom a “protection finding” was made with respect to Iran. He argues that the circumstance described in s 76AAA(1)(d)(ii) applies to him and that, consequently, he is not a non-citizen to whom s 76AAA applies, as described in s 76AAA(1). If that argument is correct, it would follow that s 76AAA(2) did not authorise or require the Minister to give AJQ24 a notice under that section, and the provision of a purported notice was not effective to cause his BVR to cease to be in effect.

33    Section 197C of the Migration Act provides, in relevant part:

197C Relevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198

(1)    For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.

(2)    An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.

(3)    Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:

(a)    the non‑citizen has made a valid application for a protection visa that has been finally determined; and

(b)    in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and

(c)    none of the following apply:

(i)    the decision in which the protection finding was made has been quashed or set aside;

(ii)    a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);

(iii)    the non‑citizen has asked the Minister, in writing, to be removed to the country.

…

(5)    A protection finding is also made for a non‑citizen with respect to a country if the Minister was satisfied of any of the following (however expressed and including impliedly):

(a)    the non‑citizen satisfied the criterion in paragraph 36(2)(a) with respect to the country and also satisfied the criterion in subsection 36(1C);

…

(7A)    For the purposes of subsection (3), if an unlawful non‑citizen has made more than one valid application for a protection visa that has been finally determined, that subsection applies only in relation to the last such application.

(8)    For the purposes of subsection (5), it is irrelevant whether or not the non‑citizen satisfied any other criteria for the grant of a protection visa.

…

34    Another of the arguments relied upon by AJQ24 makes reference to a contention that his proposed removal would amount in substance to a circumvention of the power in s 197D(2) of the Migration Act. Section 197D(2) provides:

(2)    If the Minister is satisfied that the non‑citizen is no longer a person in respect of whom any protection finding within the meaning of subsection 197C(4), (5), (6) or (7) would be made, the Minister may make a decision to that effect.

35    There is no suggestion that the Minister has made a determination pursuant to s 197D(2) in relation to AJQ24. Even though AJQ24’s protection visa was subsequently cancelled, for the purposes of s 197C(3), he remains a person for whom a protection finding was made with respect to Iran – as the express terms of s 197C(3)(b) make clear. Consequently, the effect of s 197C(3) is that s 198 of the Migration Act does not authorise or require AJQ24’s removal to Iran. As I understand the argument on which AJQ24 seeks to rely, it is that the proposal to remove him to Naoero would circumvent that requirement, because a likely consequence of removal to Naoero is that he may subsequently be refouled to Iran. I shall consider this contention below.

The bases on which AJQ24 claims to be entitled to interlocutory relief

36    AJQ24 relies on two distinct bases in support of his position that the interim injunction restraining his removal from Australia should be continued.

37    The first basis is that one or more of the decisions leading to his detention is invalid or legally ineffective, or that his removal from Australia by an officer of the Commonwealth would be unlawful. For the interim injunction to be extended on this basis, AJQ24 must establish that there is a serious question to be tried as to whether he is entitled to final relief which would establish that he still holds a visa that is in effect, or which would otherwise prevent his removal from Australia, and that the balance of convenience favours the continuation of the interim injunction.

38    AJQ24 submits that there is a serious question to be tried in relation to each of the following contentions:

(1)    A precondition for his removal from Australia is not satisfied because a notice under s 76AAA of the Migration Act was not given to him.

(2)    The Commonwealth and its officers failed to give AJQ24 the Notice of Cessation “as soon as reasonably practicable” after Naoero granted him permission to enter and remain in Naoero, as required by s 76AAA(3)(a) of the Migration Act.

(3)    The removal of AJQ24 to Naoero is not “reasonably practicable”, within the meaning of s 198 of the Migration Act, because he would only have “a temporary right of abode” in Naoero and “could not leave”.

(4)    The “permission” granted by Naoero for AJQ24 to enter that country is void under Australian law, and is not “permission” within the meaning of s 76AAA of the Migration Act, because it was obtained by an officer of the Commonwealth:

(a)    on the basis that AJQ24 is a citizen of Iran, when in fact (as AJQ24 maintains) he is stateless, which is said to have been in contravention of s 19 of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) (Foreign Passports Act); and/or

(b)    “so as to achieve by other means a purpose that would be prohibited under the Migration Act”, meaning, it seems, a purpose of refouling AJQ24 to Iran.

(5)    It is “beyond the legislative power of the Commonwealth to confer power on an officer to give effect to the arrangement so as to send [AJQ24] to [Naoero] because it would in its effect be a punishment” and, for that reason, contrary to Ch III of the Constitution.

(6)    Sections 76AAA and 198AHB of the Migration Act are constitutionally invalid because they authorise arbitrary detention and are, for that reason, contrary to Ch III of the Constitution.

39    The second basis on which AJQ24 contends that the interim injunction should be continued is that his removal from Australia would interfere with the process of this Court in connection with the conduct of the present proceeding, including in relation to his participation in the forthcoming mediation and at the trial. He claims that the injunction should be extended to protect the integrity of the processes of the Court which he has set in motion by prosecuting the present proceeding.

Has AJQ24 established that there is a serious question to be tried?

40    I shall consider each of the bases on which AJQ24 contends there is a serious question to be tried as to whether one or more aspects of the arrangements for his removal and the decisions leading up to his detention and intended removal are unlawful. In assessing the submissions advanced by AJQ24, I have had regard to the relatively limited time that has been available to him and his legal representatives to develop them.

Contention that no notice under s 76AAA of the Migration Act was given to AJQ24

41    If AJQ24 were able to establish that the Notice of Cessation was not handed to him on 19 August 2026, the consequence would be that s 76AAA(4) of the Migration Act did not operate at that time to cause his BVR to cease to be in effect. In that case, unless the visa had ceased to be in effect for some other reason (including because he later received, or was taken to have received, the Notice of Cessation), he would remain a lawful non-citizen. According to its terms, the duty to remove in s 198(5) of the Migration Act only applies in relation to an “unlawful non-citizen”. If AJQ24 still holds a visa that is in effect, then s 198(5) does not authorise or require his removal from Australia as soon as practicable.

42    The evidence initially filed by AJQ24 consisted of an affidavit of Mr Zarifi, dated 25 August 2026. That affidavit stated that, at about 12.39pm on 20 August 2026, Mr Zarifi had spoken to AJQ24 on the telephone and advised him to ask the ABF for “any documents relating to his detention”. At 1.53pm, Mr Zarifi received (presumably from AJQ24) “photographs of several documents that had been provided to [AJQ24] by the ABF”. Those documents are annexed to Mr Zarifi’s affidavit. They include (a) a Notice of Intention to Remove from Australia; (b) a copy of the Federal Court’s Duty (Urgent) Applications Interim Practice Note during 3 Region Trial (GPN-DUTY); (c) a “Very Important Notice” providing “Information about your detention” in English and Farsi (“Form 1423 FAR”); (d) “Privacy notices” in English and Farsi (“Form 1442i” and “Form 1442i FAR”); (e) a “VIDC Induction Briefing” providing information about Villawood Immigration Detention Centre; (f) a form to enable a request to be made for a “Certification of Immigration Status” (“Form 1194”). The documents provided to Mr Zarifi by AJQ24 did not include a copy of the Notice of Cessation.

43    Mr Zarifi also deposes to the fact that, in the afternoon of 20 August 2026 and the morning of 21 August 2026, he sent emails to the solicitor for the Commonwealth in this proceeding, Laura Armstrong of the Australian Government Solicitor, requesting that he be provided with copies of all documents provided to AJQ24 in connection with his detention and proposed removal. In the evening of 21 August 2026, Ms Armstrong responded to those requests, stating that, because the documents sought were by then the subject of an interlocutory application for discovery, and no orders for discovery had been made, the Commonwealth was “not presently in a position to provide the documents requested”. The refusal of the Commonwealth to provide those obviously potentially relevant documents to AJQ24’s solicitor has not otherwise been explained.

44    The evidence initially filed by the Commonwealth included an affidavit of Paul Gordon dated 25 August 2026. In that affidavit, Mr Gordon asserts:

On 19 August 2026, officers of the Australian Border Force (ABF) handed a Notice of Cessation pursuant to s 76AAA of the [Migration Act] to [AJQ24]. [AJQ24] became an unlawful non-citizen.

45    Mr Gordon’s affidavit annexes a copy of the Notice of Cessation. The affidavit contains no further detail as to the persons involved, the circumstances in which the Notice of Cessation is said to have been handed to AJQ24, or the basis for Mr Gordon’s assertion.

46    AJQ24 filed a further affidavit of Mr Zarifi, dated 26 August 2026, which relevantly states as follows:

At or about 2:00 pm (AEST) on 26 August 2026, I sent a text message to [AJQ24] attaching screenshots of two pages of the Notification of Cessation of Bridging R Visa dated 19 August 2026, found at pages 22 and 23 of Mr Paul William Gordon’s affidavit dated 25 August 2026 filed in this matter. I asked [AJQ24] whether, when he was detained, he had been provided with a copy of that document.

On instructions from [AJQ24], I am informed that he was not provided with a copy of the Notification [of Cessation] at the time of his detention.

47    In response to this evidence, the Commonwealth filed a further affidavit of Marina Yanada dated 27 August 2026, a Senior Border Force Officer in Field Operations and Sponsor Monitoring. Ms Yanada deposes to the fact that she was involved in the execution, though not the planning, of “the operation to notify [AJQ24] of the cessation of his visa by way of a s 76AAA notice under the [Migration Act]”. She says that, on 19 August 2026, she “volunteered to deliver the Notice [of Cessation] to [AJQ24]” at Redfern Police Station. She then describes what occurred, as follows:

Based on my recollection and the records of the Signal chat from 19 August 2026, [AJQ24] arrived at Redfern Police Station at 2:29pm. I handed [AJQ24] the Notice [of Cessation] at 2:32pm that day. After I handed the document to [AJQ24], he said words to the effect of:

“I can’t read this, can you read it to me.”

…

I then read the Notice [of Cessation] to [AJQ24].

48    Ms Yanada’s affidavit explains that, in relation to each operation, the team includes a notetaker who takes notes by way of a group chat using the Signal messaging app. Ms Yanada annexes to her affidavit a screenshot of messages in the Signal group chat from the afternoon of 19 August 2026, which show the date and time of the messages. In relation to the time when Ms Yanada claims to have handed AJQ24 the Notice of Cessation, the Signal group chat records the following:

Wed, 19 Aug

…

2.29pm

[AJQ24] has arrived with his poodle

JP greeted [AJQ24] and introduced himself

[AJQ24] seated and very compliant. MY has started conversing with him

Edited 2.31pm

[AJQ24] has stated “whatever happens happens”

MY handed copy of s76AAA paperwork to [AJQ24]. [AJQ24] has advised he is unable to read it and has asked MY to read out the notification

Edited 2.32pm

MY reading out s76AAA notice and advising [AJQ24] that his BVR has ceased as he is being notified of the decision by hand

[AJQ24] has asked where Nauru is

[AJQ24] starting to get emotional and crying with his head down

14:34 MY detained [AJQ24] under s189(1)

2:35pm

…

49    Ms Yanada goes on to state her recollection of what subsequently happened, as follows:

After I had handed [AJQ24] the Notice [of Cessation], he was having an adverse reaction to receiving it. I placed the Notice [of Cessation] on a table. [AJQ24] was then patted down by an officer, and his belongings were put together on a chair.

At 2:47pm I read a script that explains why the s76AAA notice was given. …

The script that I read to [AJQ24] includes a space for the detained person to sign. [AJQ24] refused to sign. …

…

I put the Notice [of Cessation] with [AJQ24’s] other belongings on the chair. I understood they were then to be taken with him to Villawood Immigration Detention Centre.

50    Ms Yanada also annexes to her affidavit a photograph of her printed script with a space for AJQ24’s signature and a handwritten annotation to the effect that he refused to sign at 2.53pm on 19 August 2026.

51    AJQ24 submits that I should ignore Ms Yanada’s evidence because it was not filed at the time when the Commonwealth was originally required to file its evidence, because Ms Yanada does not identify the officer who created the messages in the Signal group chat, because they were edited, and because Ms Yanada’s recollection was informed by the messages. Given that the evidence originally filed by AJQ24 did not clearly state that he had not received a notice of cessation, and it was not clear that it was his case that he had not received such a notice at the time when the Commonwealth filed its evidence, and the fact that Ms Yanada was the officer who claimed to have directly handed AJQ24 the notice, only about a week before she made her affidavit, I consider it appropriate to receive and have regard to Ms Yanada’s affidavit evidence. I made orders permitting AJQ24 to file any further written submissions and affidavit evidence in response. He filed further submissions, but no further evidence.

52    On the evidence currently before the Court, there is an apparent factual dispute as to whether the Notice of Cessation was handed to AJQ24 on 19 August 2026. Ms Yanada directly deposes to the fact that she “handed” the Notice of Cessation to him at 2.32pm that day. I am conscious that this evidence has not been tested by way of cross-examination.

53    I regard AJQ24’s contention that no notice under s 76AAA of the Migration Act was given to him on 19 August 2026 with scepticism. The Commonwealth has adduced evidence directly from the officer who says she handed him the Notice of Cessation, and contemporaneous records that support her evidence. On the other hand, AJQ24 has not directly given evidence (which is understandable given the timeframes involved and potential logistical difficulties), and the evidence of his solicitor on which he relies is carefully worded and only addresses, in terms, the question of whether he was given such a notice “at the time of his detention”. Given that the provision of the notice under s 76AAA was evidently the basis on which it was suspected that AJQ24 was an unlawful non-citizen, it seems inherently improbable that AJQ24 was not given the notice when he met with the ABF officers on 19 August 2026. It is also clear from Ms Yanada’s evidence that AJQ24 was upset and it appears that he may not personally have taken the Notice of Cessation with him, even though it was handed to him – which might possibly explain why he later reported not having received it. Considering the evidence as a whole, I do not think AJQ24 has established a serious question to be tried in relation to whether the notice was handed to him on 19 August 2026.

54    In any event, even if AJQ24 was not given the Notice of Cessation before he was detained on 19 August 2026, it is clear that he subsequently received a copy of the notice, and that he did so, at the latest, when it was sent to him by Mr Zarifi. It thus appears that he “received” the Notice of Cessation, and (assuming it was legally effective) became an unlawful non-citizen no later than 26 August 2026. If AJQ24 were to establish that he only received the Notice of Cessation at that time, then his detention before that may potentially have been unlawful, but the failure to give him the Notice of Cessation on 19 August 2026 would not support a conclusion that he remains a lawful non-citizen or that his future removal from Australia pursuant to s 198(5) of the Migration Act would be unlawful.

55    For these reasons, I consider that AJQ24 has not established that there is a serious question to be tried as to whether he received the Notice of Cessation.

Failure to give AJQ24 the Notice of Cessation “as soon as reasonably practicable”

56    The evidence filed by the parties establishes that the government of Naoero granted the Naoeroan visa, which confers on AJQ24 permission to enter Naoero, on 2 April 2026. Naoero being a party to a third country reception arrangement within the meaning of s 198AHB of the Migration Act, the grant of the Naoeroan visa had the consequence that, by operation of s 76AAA(1), s 76AAA started to “appl[y] in relation to” AJQ24 from 2 April 2026.

57    The evidence does not disclose when, precisely, the fact that the Naoeroan visa had been granted became known to officers of the Commonwealth. That is evidence within the exclusive knowledge of the Commonwealth. In the absence of such evidence, and having regard to the fact that it was an officer of the Commonwealth who applied for the Naoeroan visa, I infer, in AJQ24’s favour, that officers of the Commonwealth were notified of, and that the Minister became aware of, the grant of the Naoeroan visa on or very soon after 2 April 2026.

58    There is no evidence that the Minister made any attempt to give AJQ24 a notice under s 76AAA(2) of the Migration Act prior to 19 August 2026. The evidence advanced by the Commonwealth does not disclose any explanation for the lengthy delay between the grant of the Naoeroan visa and the giving of the Notice of Cessation to AJQ24. There is no evidence to suggest that it was not reasonably practicable for the Minister to give AJQ24 a notice of cessation until 19 August 2026. For the purposes of considering this argument, I therefore proceed on the assumption that AJQ24 would establish that the Minister had failed to comply with the requirement, imposed by s 76AAA(3)(a) of the Migration Act, to give AJQ24 notice of the cessation of his BVR, as soon as reasonably practicable after 2 April 2026.

59    The question, then, is whether AJQ24 has established that there is a serious question to be tried as to whether, because the Minister failed to give him the Notice of Cessation as soon as reasonably practicable after s 76AAA started to apply to him, the BVR did not cease to be in effect immediately after AJQ24 received it.

60    The consequence of the Minister’s non-compliance with s 76AAA(3)(a) of the Migration Act is a question of statutory construction, to be determined by reference to the text and purpose of the provision in question. It is clear, in my view, that the text and purpose of s 76AAA do not support the conclusion that non-compliance with s 76AAA(3)(a) results in the subsequent receipt of a notice under s 76AAA not having the effect stated in s 76AAA(4).

61    First, textually, s 76AAA(4) provides that a BVR held by a non-citizen “ceases to be in effect immediately after” the non-citizen receives (or is taken to have received) the notice which s 76AAA(2) requires that they be given. The operation of s 76AAA(4) is expressed to be dependent on the receipt (or deemed receipt) of a notice of the kind referred to in s 76AAA(2), not on compliance with the requirement to give the notice to the non-citizen as soon as reasonably practicable. If anything, this is further reinforced by the introductory words of s 76AAA(4), which make clear that the section operates, according to its terms, to cause a BVR to cease to be in effect despite any other provision of the Migration Act or the Migration Regulations 1994 (Cth).

62    Secondly, the purpose of the scheme provided for by ss 76AAA and 198AHB of the Migration Act would not be advanced by a construction of s 76AAA(4) under which failure of the Minister to comply with the requirement to provide a person with a notice as soon as reasonably practicable had the effect that the later provision of such notice to the person did not result in the cessation of the visa. The evident purpose of the requirement to provide the non-citizen with notice as soon as reasonably practicable is to ensure that, once a foreign country which is a party to a third country reception arrangement grants a non-citizen who holds a BVR permission to enter and remain in that country, the cessation of the non-citizen’s visa, their consequent detention for the purpose of removal, and their removal from Australia will all occur expeditiously.

63    The construction on which AJQ24’s argument depends would frustrate this purpose, by preventing the Minister and officers of the Commonwealth from taking the steps necessary to complete the removal of the non-citizen, even they continued to have permission to enter and remain in a foreign country which was a party to a third country reception arrangement that was in force.

64    This view of the purpose of s 76AAA accords with the explanation in the Revised Explanatory Memorandum for the Bill which became the Migration Amendment Act 2024 (Cth), which inserted ss 76AAA and 198AHB into the Migration Act, and which was summarised by Gageler CJ, Gleeson, Jagot and Beech-Jones JJ in TCXM v Minister for Immigration and Citizenship [2026] HCA 13 (TCXM) at [8], as follows:

The Revised Explanatory Memorandum for the 2024 Amendment Act explained the design of s 76AAA to be that the giving of notice required by s 76AAA(2) will culminate in the cessation of a BVR by force of s 76AAA(4), so as to result in the non-citizen who was the holder of a BVR becoming an unlawful non-citizen, if a foreign country that is a party to a third country reception arrangement within the meaning of s 198AHB grants the non-citizen permission to enter and remain in that country and if the other conditions in s 76AAA(1) are met. The Revised Explanatory Memorandum further explained the legislative intention to be that the grant by the foreign country of permission to enter and remain in that country would, in certain circumstances, give rise to a real prospect of the non-citizen being removed to that country under s 198 in the reasonably foreseeable future. In that event, ss 189 and 196 would validly authorise and require the detention of the non-citizen until removal occurs.

(Footnotes omitted.)

65    If s 76AAA(4) were interpreted as not having its stated effect when a notice under s 76AAA(2) were given outside of the time designated by the expression “as soon as reasonably practicable”, that would tend to detract from the purpose of this scheme because a non-citizen who held a BVR would remain a lawful non-citizen, and could not be removed from Australia, even though they had permission to enter and remain in a third country and the other conditions in s 76AAA(1) were met.

66    A further evident purpose of s 76AAA(4) is to fix, with reasonable certainty, the point in time at which a non-citizen’s BVR ceases to be in effect, by reference to the time at which they receive a notice. Contrary to that purpose, it would create significant uncertainty and inconvenience if the question of whether a BVR had ceased to be in effect depended on a contestable and fact-specific inquiry as to whether the giving of the notice had occurred “as soon as reasonably practicable”. Although it is unrealistic to expect that a person would seek a writ of mandamus to compel the Minister to give them a notice under s 76AAA(2) (not least because, as the facts of TCXM and the present case demonstrate, until they are given a notice, they may well be unaware of the fact that they have permission to enter a third country), it is to be concluded that, if it has become reasonably practicable for the Minister to give a non-citizen a notice in accordance with s 76AAA(2), then the effect is not that the capacity of the Minister to give the non-citizen a notice with the effect contemplated by s 76AAA(4) is “spent” but, rather, that the time for compliance with the duty imposed by s 76AAA(2) has arrived.

67    The evident purpose of s 76AAA would not be frustrated or undermined by a construction in which s 76AAA(4) operates according to its terms even if a notice is given to a non-citizen only after the point in time when it was first “reasonably practicable” to give it. The function of s 76AAA(4) in this scheme will continue to be applicable, and consistent with the purpose of the scheme, for so long as all of the conditions identified in s 76AAA(1) continue to apply in relation to the non-citizen in question (including that the relevant third country reception arrangement remains “in force” and the permission for the non-citizen to enter and remain in the third country continues to exist). If any of those conditions were to cease to apply before a notice was given to the non-citizen, then, by the terms of s 76AAA(1), s 76AAA – including s 76AAA(4) – would no longer apply in relation to the non-citizen, and their receipt of a notice after s 76AAA(4) had ceased to apply in relation to them would not cause their BVR to cease to be in effect.

68    For these reasons, in my view, it is clear that s 76AAA(4) has effect in accordance with its terms in this case, and I am not satisfied that AJQ24’s contention that the Minister’s failure to give him the Notice of Cessation as soon as reasonably practicable presents a serious question to be tried.

Contention that removal to Naoero is not “reasonably practicable”

69    AJQ24 contends that, despite the Commonwealth’s announced intention to remove him to Naoero in the near future, his removal to Naoero is not “reasonably practicable” within the meaning of s 198 of the Migration Act. The submission is advanced in the following terms:

It is not “reasonably practicable” to remove [AJQ24]. He would have only a temporary right of abode. Moreover, he could not leave. To send [AJQ24] to [Naoero] as a Stateless person is to detain him by other means. Despite the Visa prima facie “allowing” [AJQ24] to leave and return [Naoero], this would be prima facie impossible for a Stateless person. As explained by Gordon J [in TCXM at [87]], “it would not be a bona fide fulfilment of the duty to remove … a person to a rock in the Pacific Ocean”.

(Footnote omitted.)

70    The submission draws on certain observations in TCXM regarding what is meant by removal of an unlawful non-citizen from Australia being “reasonably practicable”, as that expression is used in s 198 of the Migration Act. However, those observations provide inadequate support to conclude that there is a serious question to be tried as to whether removal of AJQ24 to Naoero is not “reasonably practicable” for the purposes of s 198. In TCXM, Gordon J relevantly said (at [86]-[89]):

Second, the concept of reasonable practicability is not confined to “physical possibility”. For example, in Minister for Immigration and Multicultural Affairs v MZAPC [(2025) 99 ALJR 486; [2025] HCA 5 at 498 [35]], a plurality of this Court considered it would not be “reasonably practicable”, from the perspective of an officer, to remove a person from Australia if, by such removal, the officer would be contravening an order of a court and exposing themselves to being found to be in contempt.

The factors that might make removal “reasonably practicable” are also not limited to ensuring that the person is removed beyond the territorial boundaries of Australia. “Removal means removal to a place.” In NATB v Minister for Immigration and Multicultural and Indigenous Affairs [(2003) 133 FCR 506; [2003] FCAFC 292 at 364 [110]], the Full Federal Court observed that it cannot have been Parliament’s intention to oblige or permit an officer to remove an unlawful non-citizen from Australia’s territorial boundaries simply by dumping that person in the sea beyond those boundaries. Similarly, it has been observed that it would not be a bona fide fulfilment of the duty to remove a person to a rock in the Pacific Ocean.

Rather, as explained by Gummow, Hayne, Crennan and Bell JJ in Plaintiff M70/2011 v Minister for Immigration and Citizenship (Malaysian Declaration Case) [(2011) 244 CLR 144; [2011] HCA 32 at 190 [92]], “Australia’s power to remove non‑citizens from its territory is confined by the practical necessity to find a state that will receive the person who is to be removed”. As a result, for removal of an alien from Australia under s 198 to be “reasonably practicable”, “there must first and foremost be identified a country to which that alien might be removed, and removal of that alien to that country must be permissible under the Act”. The concept also encompasses the willingness of another country to allow the person to enter its territorial boundaries.

Third, removal to another country, as a matter of practicability, also requires the non-citizen to have some form of right of abode or authorisation to enter and remain in that country. That right or authorisation cannot merely be transitory. It would not be “reasonably practicable” for the Commonwealth to “remove” a person to a country on the basis that the person has authorisation only in the form of short-term visa-free travel in that country. For removal to another country to be “reasonably practicable” the non‑citizen must have the ability to enter and, moreover, remain in that country.

(Footnotes omitted.)

71    The Naoeroan visa permits AJQ24 to remain and reside in, and (if it is possible to do so) leave and return to, Naoero for a period of 30 years. There is no evidence before the Court as to whether a settled person in AJQ24’s position would be able to apply for and be granted Naoeroan citizenship within that period or whether they would be eligible to apply for or be granted a further visa upon the eventual expiration of their visa. Naoero is a state that is willing to receive AJQ24 within its territorial borders. The removal of AJQ24 to Naoero on the basis of the Naoeroan visa is consistent with the kind of evaluative assessment contemplated by Gordon J, as to “reasonable practicability of removal” in all of the circumstances of the case. It is clear that Naoero is prepared to receive AJQ24 other than on a “merely … transitory” basis, and to provide him with a “right of abode or authorisation to enter and remain in” Naoero. Whatever the limits of the evaluative assessment, the example of “short-term visa-free travel” (while obviously only used as an example, and not intended to be exhaustive) is so far removed from the effect of the Naoeroan visa that it demonstrates that the arrangement applicable to AJQ24 does not present a real issue as to whether it is reasonably practicable to remove him to Naoero. Notably, although TCXM was not argued on the basis that the 30-year term of the relevant visa in that case meant that removal from Australia to Naoero was “reasonably practicable”, there is no suggestion in any of the judgments that the mere fact that the visa had an “end date” decades in the future might raise any doubt in that regard.

72    It is not clear whether AJQ24 argues that his removal to Naoero would amount to removal “to a rock in the Pacific Ocean”. Naoero, although an extremely small country, does not engage the kind of concern underlying the reference to “a rock”. It is plain that the High Court, when it held in TCXM that the appellant in that case had not established that it was not reasonably practicable for him to be removed to Naoero on the basis of his health condition, did not consider that removal to Naoero was not “reasonably practicable” within the meaning of s 198 of the Migration Act by reason of its size or its location, even when taken in combination with the health considerations relevant to the appellant in that case.

Contention that there is no relevant “permission” to enter Naoero because it was procured in contravention of Australian or Naoeroan law

73    AJQ24’s next argument depends on the contention that action taken by an officer of the Commonwealth in connection with the application for the Naoeroan visa was in contravention of s 19 of the Foreign Passports Act, which provides:

19 Giving false or misleading information in relation to foreign travel document applications

(1)    A person commits an offence if:

(a)    the person gives information to another person; and

(b)    the information:

(i)    is false or misleading; or

(ii)    omits any matter or thing without which the information is misleading; and

the information is given in, or in connection with, an application for a foreign travel document.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

(2)    Subsection (1) does not apply:

(a)    as a result of subparagraph (1)(b)(i)—if the information is not false or misleading in a material particular; or

(b)    as a result of subparagraph (1)(b)(ii)—if the information did not omit any matter or thing without which the statement is misleading in a material particular.

Note: The defendant bears an evidential burden in relation to the matters in subsection (2). See subsection 13.3(3) of the Criminal Code.

74    AJQ24 contends that an unidentified officer of the Commonwealth gave information to the government of Naoero, in connection with an application for the Naoeroan visa, and that the information was false or misleading, or omitted matter without which the information was misleading, in that the officer stated, without qualification, that AJQ24 was a citizen of Iran.

75    AJQ24’s position is that he is in fact stateless, and not a national of Iran – a contention that he has pleaded, and maintains, in the present proceeding in connection with his claim for damages for false imprisonment. He thus maintains that it was misleading to provide information that he was a national of Iran when (a) that was (on his case) inaccurate, and/or (b) it was known to the Commonwealth that the proposition that he is a national of Iran is disputed. There is an arguable question as to whether AJQ24 is a national of Iran or is stateless. I therefore proceed on the basis that it is also an arguable issue as to whether the information provided in connection with the application for the Naoeroan visa was false or misleading, or omitted matter without which it was misleading.

76    The Commonwealth argues that AJQ24 has not established that there is a serious question to be tried in relation to a possible contravention of s 19 of the Foreign Passports Act.

77    In s 5 of the Foreign Passports Act, the term “foreign travel document” is defined to mean:

(a)    a foreign passport; or

(b)    a document of identity issued for travel purposes by or on behalf of the government of a foreign country (whether or not also issued for another purpose).

78    The relevant document is the Naoeroan visa. It is not a foreign passport. Nor is it a “document of identity”. It does not serve the purpose of identifying AJQ24 or establishing his identity; rather, it operates as a permission for AJQ24 to enter and remain in Naoero. The only relevant document of identity which is in evidence is a “Statement of Identity”, which the Commonwealth relied on for the purpose of applying for the Naoeroan visa. The Statement of Identity was issued by the Department, and not by the government of a foreign country. While AJQ24 has asserted that the Naoeroan visa is a “foreign travel document”, he has advanced no argument explaining why that is so.

79    It follows that, in my view, s 19 of the Foreign Passports Act has no application in relation to the Naoeroan visa. This seems clear, and I am not satisfied that the contrary view is sufficiently arguable to support a conclusion that AJQ24 has established a serious question to be tried as to whether a Commonwealth officer committed an offence against s 19 of the Foreign Passports Act.

80    In light of this conclusion, it is not necessary to consider whether it is arguable that an officer of the Commonwealth acted with the requisite fault element to commit an offence against s 19 of the Foreign Passports Act. Nor is it necessary to consider the large question of whether the provision of information in contravention of s 19 of the Foreign Passports Act, by a Commonwealth officer in connection with arrangements for removal of a non-citizen, could lead to a conclusion that the non-citizen does not have “permission (however described), granted by a foreign country, to enter and remain in that country”, within the meaning of s 76AAA(1)(b) of the Migration Act, or that s 198 of the Migration Act does not authorise and require removal of a non-citizen pursuant to those arrangements.

81    AJQ24 also raises a further contention that the officer who applied for the Naoeroan visa contravened the law of Naoero; in particular, s 28 of the Immigration Act 2014 (Nr), which provides that:

A person who makes a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in information provided under this Act commits an offence and is liable to a maximum penalty of $10,000.

82    However, AJQ24 has not explained how a contravention of Naoeroan law by officers in connection with an application for a Naoeroan visa would have the consequence that the Naoeroan visa did not constitute “permission (however described), granted by a foreign country, to enter and remain in that country” within the meaning of s 76AAA(1)(b) of the Migration Act. The evidence before the Court demonstrates that Naoero has, in fact, granted such permission. I should perhaps add that there is also no basis in the evidence before the Court to infer that the officer who applied for the visa and who identified AJQ24 as a citizen of Iran did so with a belief that he was not, in fact, a citizen of Iran – although I accept that the question of whether AJQ24 is, in reality, a citizen of Iran or a stateless person is a real issue joined between the parties in the present proceeding.

83    AJQ24 has not advanced any submission that explains the basis on which he contends that the commission of an offence against the law of Naoero (assuming that occurred) otherwise affects the validity of AJQ24’s status as an unlawful non-citizen, or his detention and removal under Australian law.

No relevant “permission” to enter Naoero because it was procured “so as to achieve by other means a purpose that would be prohibited under the Migration Act”

84    AJQ24 contends that:

… the permission actuating s 76AAA is an express statutory condition: s 76AAA(1)(b). [AJQ24] says the [Commonwealth] cannot procure such permission so to achieve by other means a purpose that would be prohibited under the Migration Act. There is nothing in the arrangement with [Naoero] that requires it to recognise [AJQ24]’s extant “protection finding”, nor prohibit [Naoero] from refouling [AJQ24] to Iran. On the contrary, in procuring the Visa on the basis that [AJQ24] is a citizen of Iran the [Commonwealth] has made that prospect likely were the Visa to be revoked or cancelled.

(Emphasis in original.)

85    Insofar as AJQ24’s argument depends on a contention that a “purpose” of the Commonwealth or its officers in making arrangements for his removal to Naoero is to cause him ultimately to be returned to Iran, there is no basis in the evidence to conclude that there is a serious question to be tried in relation to that contention. The Naoeroan visa permits AJQ24 to remain in and return to Naoero for a period of 30 years. The identification, by an officer of the Commonwealth, of Iran as AJQ24’s country of nationality, which reflects a finding made in connection with the decision to cancel his protection visa and the position taken by the Commonwealth in the present proceeding, may be incorrect (as AJQ24 maintains), but it does not realistically suggest that a purpose or object of any officer was to cause him to be returned to Iran. There is no basis in the evidence before me to conclude, even at the relatively undemanding level of a “serious question to be tried”, that the making of arrangements for the removal of non-citizens affected by the decision in NZYQ to be removed to Naoero, and AJQ24 in particular, has been undertaken for a purpose other than to provide for their removal from Australia and their settlement in Naoero.

86    The heading to this part of AJQ24’s submissions is “Non-statutory executive power limited by s 197D(2)”. However, the argument, as advanced, makes no reference to s 197D(2). As has been seen above, s 197D(2) is the provision by which the Minister is empowered to make a decision that a particular non‑citizen “is no longer a person in respect of whom any protection finding within the meaning of subsection 197C(4), (5), (6) or (7) would be made”. The effect of such a decision (when “complete”) is that s 197C(3) no longer prevents the removal of the non-citizen to a country for which they have a protection finding.

87    Section 197C(3) is concerned to prevent removal of a person to a country in respect of which there is a protection finding. The power in s 197D(2) enables the Minister to avoid the operation of s 197C(3) in respect of a particular country where they determine that a non-citizen is no longer a person in respect of whom a protection finding would be made. The removal of AJQ24 to Naoero has not involved any determination that he is not a person in respect of whom a protection finding would be now made. It has no effect or purported effect on the protection finding which was made in the course of determining AJQ24’s protection visa application, which remains in existence, or the effect of s 197C of the Migration Act by reference to that protection finding. Section 197C continues to operate according to its terms, so as to prevent the duty on an officer to remove AJQ24 from Australia from including removal of AJQ24 to Iran.

88    A “protection finding” has the particular effect which s 197C(3) gives to it for the purposes of Australian law, which is to limit what would otherwise be the effect of s 198. Nothing in ss 197C or 198 of the Migration Act requires the Commonwealth to reach arrangements with another country to which a non-citizen may be removed, in accordance with s 198, so as to require that country to recognise a protection finding or treat such a finding as incontrovertible.

89    I acknowledge that it is possible that s 197C(3), when it refers to removal of “an unlawful non‑citizen to a country”, should be understood as extending to certain conduct which would have the indirect effect of removing a non-citizen to that country. So, if the practical consequence of removing a non-citizen from Australia to one country was that they would then be taken to another country in respect of which the conditions in s 197C(3) were engaged, so that removal to the first country would be tantamount to removal to the second, it might be that s 197C(3) should be construed as excluding the operation of s 198 in respect of the first country.

90    However, assuming (without deciding) that that construction of s 197C(3), or a similar construction, is reasonably open and should be adopted, AJQ24 has not, in my view, established a serious question to be tried in relation to the proposition that his removal to Naoero would, or even realistically may, lead to his being taken to Iran in a manner that could amount to removal to Iran within the meaning of s 197C(3), for the following reasons.

(1)    Even AJQ24’s submission only suggests that the prospect of Naoero refouling him to Iran would be “likely” if the Naoeroan visa were to be revoked or cancelled. There is no reason to suppose that that is probable, or even realistically foreseeable.

(2)    There is no reason to suppose that the Naoeroan government would treat the Commonwealth’s identification of AJQ24’s nationality as Iranian as conclusive, or that it would ignore any claim he might make to the effect that he is stateless or should not be removed to Iran because of his fear of persecution.

(3)    If AJQ24 is stateless, as he claims, there is no reason to suppose that his removal to Iran would be pursued by Naoero, or that it would be practicable.

(4)    The MOU entered into between the governments of Australia and Naoero makes provision for protection against the return of settled persons to third countries where they face persecution. I accept that (in accordance with its terms) the MOU does not create legally binding obligations, but it does indicate the basis on which the government of Naoero may be expected to act (and AJQ24 has adduced no evidence to suggest otherwise). Relevant obligations under the MOU include the following:

(a)    by cl 3.1.1 of Sch 1 to the MOU, Naoero commits to “maintaining a robust legal framework and conducting all of its operations at a standard which meets or exceeds” conditions for the treatment of all “Settled Persons” while they reside on Naoero, including that they:

(i)    will be treated in accordance with Naoero’s “international legal obligations, including relevant obligations under international human rights laws”;

(ii)    “have the right to raise new protection claims and have those claims assessed in accordance with any international instruments, conventions, treaties or protocols”; and

(iii)    “will not be subject to arbitrary deprivation of life, application of the death penalty, torture or other cruel, inhuman or degrading treatment or punishment or persecution”; and

(b)    by cl 3.1.2 of Sch 1 to the MOU, Naoero accepts that it will not (among other things):

(i)    “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 or a particular group or political opinion”;

(ii)    “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”;

(iii)    “send a Settled Person to another country if there is a real risk of chain refoulement of the Settled Person”; or

(iv)    “send a Settled Person to another country where there is a risk of the Settled Person being subject to punitive conditions in support of community safety[, or] the working rights or general safety of the Settled Person being denied”.

91    For these reasons, I do not consider that AJQ24 has established a serious question to be tried in connection with his contention that the Naoeroan visa was procured to achieve a purpose, or result, of removing AJQ24 to Iran or to subvert ss 197C and/or 197D of the Migration Act.

Contention that removal of AJQ24 to Naoero amounts to punishment, contrary to Ch III of the Constitution

92    The submissions advanced by AJQ24 in relation to this issue are as expressed follows:

… It is beyond the legislative power of the Commonwealth to confer power on an officer to give effect to the arrangement so as to send the applicant to [Naoero] because it would in its effect be a punishment.

First, to send [AJQ24] to [Naoero] as a Stateless person is to detain him by other means. Despite the Visa prima facie “allowing” the applicant to leave and return [Naoero], this would be prima facie impossible for a Stateless person.

Second, [AJQ24] would have only a temporary right of abode. In any event, that right of abode is conditioned on the continuation of the Visa, which is beyond the control of the Commonwealth. This is a “banishment”, and punishment.

Third, particularly in the context of the proceedings in this Court for false imprisonment the proper inference is that the exercise of the power is retribution or deterrence. As explained, although permission was apparently obtained almost 5 months ago, it was only 2 weeks after recovering judgment that the [Commonwealth] acted upon it.

(Footnotes omitted.)

93    AJQ24’s submissions in relation to this contention do not identify a particular provision of Commonwealth legislation which is said to be invalid. It appears that the contention must be that s 76AAA or s 198(5) of the Migration Act, in their application to AJQ24, is inconsistent with Ch III of the Constitution. The arguments AJQ24 relies on appear to be based on the proposition that his removal from Australia to Naoero would amount to impermissible punishment, having regard to his personal circumstances, the terms of the Naoeroan visa, and the circumstances that will apply to him after he is removed to Naoero.

94    The first proposition advanced by AJQ24 is that to send him to Naoero would be “to detain him by other means”. I do not accept that this is reasonably arguable. The evidence of the arrangements before the Court indicates that AJQ24 is to be at liberty generally in Naoero. By cl 3.1.1 of Sch 1 to the MOU, in addition Naoero to the commitments relevant to refoulement, to which reference has already been made above, Naoero has committed to principles that:

(a)    “Settled Persons will have freedom of movement on [Naoero], with no separation from the [Naoeroan] community solely as a result of an individual’s status as a Settled Person”;

(b)    “Settled Persons will not be subject to detention, except in accordance with generally-applicable [Naoeroan] law”; and

(c)    “Settled Persons will not be subject to arbitrary or punitive conditions in support of community safety”.

95    By cl 4 of Sch 1 to the MOU, Naoero has committed to “providing support to all Settled Persons to achieve minimum outcomes in line with [Naoeroan] standards of living including, as necessary and as tailored to individual needs”.

96    Although Naoero is an extremely small country, both in terms of geographic area and population, being at liberty there, under the conditions contemplated by the MOU, cannot realistically be characterised as the continuation of detention. There is no basis in the evidence to suppose that AJQ24, if removed to Naoero, would not live in conditions that are consistent with the commitments given by Naoero in the MOU. Nor is there other evidence, or even specific allegations, about the actual circumstances that he would face which could support a conclusion that living in those circumstances would amount to detention.

97    It is not self-evident that it will be always impossible for AJQ24, as a stateless person (as he claims), to leave and return to Naoero, and AJQ24 has advanced no evidence in support of that proposition. But, even assuming that he would be practically unable to travel to another country if he were removed to Naoero, I do not accept that it is reasonably arguable that that would mean that his being at liberty on Naoero could amount to “detention”, or to “banishment” in any sense that, for a non-citizen, should be characterised as punishment.

98    Given that the removal of AJQ24 from Australia is (subject to the possible grant of an injunction by a court) required by statute, the character of that removal from Australia falls to be determined by reference to its place in the statutory scheme: cf TCXM at [109] (Gordon J). The purpose of the BVR which was held by AJQ24 was to facilitate his presence in the community, subject to conditions, pending his eventual removal from Australia, should the Commonwealth be able to enter into arrangements such that his removal became practicable. The High Court has held that the cancellation of a visa, even by reference to a non-citizen’s character or past offending, and the deportation or removal of a non-citizen from Australia is an executive function and is not inherently penal or punitive in character: see, eg, Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 32; Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333; [2018] HCA 2 at 347-8 [47]-[48], 348-9 [52], 358 [92]-[93]; see also TCXM at [56]-[59] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ), [111]-[115] (Gordon J). The cessation of AJQ24’s BVR pursuant to s 76AAA was consistent with that purpose.

99    The final submission relied on by AJQ24 in relation to this point is that an inference that is properly open is that the “exercise of the power” to remove him to Naoero is “retribution or deterrence”. AJQ24 relies on the timing of the provision of the notice under s 76AAA of the Migration Act, which occurred relatively shortly after the Commonwealth was forced to agree to the entry of judgment against it in respect of part of AJQ24’s claim for false imprisonment. Although that delay is unexplained, the proposition that an officer of the Commonwealth elected to give AJQ24 a notice under s 76AAA is, factually, highly speculative and improbable.

100    That an officer of the Department would be motivated to seek retribution against AJQ24 for having benefitted from a concession which the Commonwealth was bound to make by reason of the decision of the High Court in another case (Abdel-Hady) is, as a general starting point, unpromising. But further, the series of events which ultimately gave rise to the Minister’s duty to give AJQ24 a notice under s 76AAA, which has led to his present detention and his impending removal from Australia, was set in train at least as long ago as 18 February 2026, when an officer of the Department prepared the Visa Application. On 16 March 2026, officers of the International and Complex Cases Section of the Department completed a pre-removal clearance and created a report which concluded that AJQ24’s removal to Naoero would not raise concerns relating to Australia’s non-refoulement obligations. The grant of the Naoeroan visa occurred on 2 April 2026. All these steps directed to the removal of AJQ24 from Australia occurred well before the decision in Abdel-Hady or the Commonwealth’s consent to judgment in respect of part of AJQ24’s false imprisonment claim.

101    Another, probably even greater, difficulty for this argument is that, once the Naoeroan visa was granted to AJQ24, the Minister was under a statutory duty to give AJQ24 a notice under s 76AAA. The Minister (or an authorised officer through whom he acted) had no discretion to decide not to give the notice, and continued to be legally required to do so for so long as the relevant conditions which enlivened the duty, identified in s 76AAA(1), continued to exist. The legal duty to give the Notice of Cessation could not be affected by any subjective state of mind which the Minister or any officer held. In those circumstances, it is difficult to see how (and AJQ24 has not attempted to explain how) any subjective state of mind held by the Minister or an officer could affect the duty to remove AJQ24 from Australia in accordance with s 198 of the Migration Act, or how such removal could take its character from the subjective state of mind of the Minister or an officer, so as to amount to punishment.

102    For these reasons, I do not accept that AJQ24 has established that there is a serious question to be tried in relation to the question of whether his removal to Naoero would amount to punishment contrary to Ch III of the Constitution.

103    I am aware that there are other proceedings in this Court which also raise challenges to the constitutional validity of s 76AAA of the Migration Act. At my request, the Commonwealth filed an affidavit which identified those proceedings and the general nature of the arguments relied on in them. It appears that some aspects of the arguments advanced in some of those cases may be similar to some aspects of the arguments based on Ch III of the Constitution which are relied on by AJQ24. Some of the arguments in the other proceedings appear to rely on the fact the non-citizens involved in those proceedings are persons who have engaged in past serious criminal conduct. The arguments appear to be premised on the proposition that ss 76AAA and 198 of the Migration Act do not validly apply in the particular factual circumstances of those cases. The evidence before me does not demonstrate whether the Commonwealth has taken a different attitude to removal of the non-citizens involved in the other proceedings or whether it has a reasonable basis for doing so. In any event, my decision in the present case must be based on my assessment on the arguments that have been advanced before me.

Contention that ss 76AAA and 198AHB of the Migration Act authorise arbitrary detention, contrary to Ch III of the Constitution

104    In written submissions in reply, AJQ24 raised a further basis on which he claims his removal from Australia should be restrained. The submission is to the effect that:

Chapter III does not authorise detention by criteria which are too vague to be capable of objective determination by a court. A criterion under s 76AAA(1)(c) is that “the foreign country is a party to a third country reception arrangement (within the meaning of s 198AHB that is in force”.

(Footnote omitted.)

105    AJQ24 submits that the application of s 198AHB(1) of the Migration Act turns on whether the Commonwealth has entered into an “arrangement … with a country in relation to the removal of non-citizens from Australia and their acceptance, receipt or ongoing presence in the foreign country”. Section 198AHB(5) states that “arrangement” includes “an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding”. AJQ24 submits that, because the definition is “non-exhaustive”, it is “unlimited in its scope”. He submits that this concept of an arrangement is of such breadth that it has “almost no content”, and that there is nothing to distinguish the defined concept from “an opinion that an ‘arrangement’ exists”.

106    In my respectful view, these submissions are untenable. It is not the case that a statutory term which is defined non-exhaustively is “unlimited in its scope”. The meaning of “arrangement”, and its application, by assessing whether particular factual circumstances come within its purview, are to be considered in the same way as any legislative expression. Its scope falls to be ascertained by reference to its statutory context, including the purpose of s 76AAA of the Migration Act. Section 76AAA is evidently intended to provide a mechanism by which a BVR – granted to a non-citizen who would otherwise be detained pending removal from Australia but whose removal has not been reasonably practicable – may cease to be in effect when circumstances change, such that it is likely to become reasonably practicable to remove the person from Australia in the reasonably foreseeable future. The concept of an “arrangement” is informed by that context. While there may remain some uncertainty as to whether some particular factual scenario is properly characterised as an “arrangement”, that does not support a conclusion that any detention that might occur following the giving of a notice under s 76AAA is arbitrary in any sense relevant to Ch III of the Constitution. Even if the meaning of “arrangement” were extremely broad, that would just mean that that particular criterion – one of several cumulative criteria set out in s 76AAA(1) – was not difficult to satisfy.

107    A further point to be made is that s 76AAA of the Migration Act is not itself a provision that authorises detention. The criteria identified in s 76AAA(1) are not criteria by reference to which the lawfulness of detention is to be assessed. The function of the criteria is to enliven a duty on the part of the Minister to give a non-citizen a notice, receipt of which has the effect of causing the non-citizen’s BVR to cease to be in effect.

108    The proper starting point for analysis is that s 189 of the Migration Act authorises and requires an officer to detain a person if the officer reasonably suspects that the person is an unlawful non-citizen. Whether a non-citizen has that status depends on whether the person holds a visa that is in effect: Migration Act, ss 13 and 14. It is s 189 that fixes the criterion for detention. Although the practical factual content of an officer’s suspicion may vary according to the circumstances of particular cases, the criterion for detention is not arbitrary. The ultimate purpose of detention under s 189 is, relevantly, removal of unlawful non-citizens from Australia, and the criterion for detention is knowledge or reasonable suspicion, on the part of an officer, that a person is a member of the class who may be required to be removed from Australia (if they are not granted a visa: see s 196(1)).

109    In the case of a person who is suspected of having become an unlawful non-citizen by reason of the operation of s 76AAA(4) of the Migration Act, an officer who is contemplating detaining the person under s 189 will generally need to consider whether they reasonably suspect that the person held a BVR, that the person received a notice under s 76AAA(4) with the consequence that the person’s BVR ceased to be in effect, and that that the person does not hold any other visa that is in effect. How much, and what kind of, information an officer may require in order to form a reasonable suspicion that a person is an unlawful non-citizen may, of course, vary according to the circumstances of particular cases. Any uncertainty that might exist in relation to the question of whether the circumstances were such as to amount to an “arrangement” within the meaning of s 198AHB(1) would not prevent an officer from forming the relevant state of mind, or render the criterion for detention arbitrary – just as, for example, uncertainty as to the validity of a visa refusal or cancellation decision would not do so.

110    For these reasons, I do not accept that AJQ24’s contention that ss 76AAA and 197AHB authorise arbitrary detention, contrary to Ch III of the Constitution, presents a serious question to be tried.

Balance of convenience

111    In light of my conclusions above, that none of the arguments relied on by AJQ24 establishes a serious question to be tried regarding the lawfulness of his proposed removal to Naoero, it is not necessary to determine where the balance of convenience would lie. However, had I found that AJQ24 had established a serious question to be tried (and even if only a relatively weak case), I would have concluded that the balance of convenience favoured the extension of the injunction. The injustice to AJQ24 if he were removed from Australia to Naoero, and if it were later concluded that his removal was unlawful, would be grave and irreversible. The prejudice to the Commonwealth is relatively minor in comparison. One kind of prejudice would consist of a delay in (and to that extent frustration of) the proper administration of s 198 of the Migration Act, but there is nothing to suggest that such a delay would prevent AJQ24’s eventual removal to Naoero in the event that his challenge to his removal was ultimately successful. Another possible kind of prejudice to the Commonwealth would lie in the additional costs borne by it as a result of the continuing detention of AJQ24 (although whether he continued to be detained might well be within the control of the Minister) or as the result of the cancellation and re-making of arrangements for his removal, but any prejudice of that kind would have been ameliorated by the acceptance of the undertaking as to damages proffered by AJQ24.

Effect of the removal of AJQ24 to Naoero on the Court’s processes in connection with the existing proceeding

112    There is no dispute that there is a serious issue to be tried in relation to AJQ24’s pre-existing claims for damages for false imprisonment and assault. Indeed, as explained above, AJQ24 has already been successful in relation to one significant aspect of his false imprisonment claim and damages remain to be assessed. It is not suggested that AJQ24’s claim for damages against the Commonwealth would lack utility if he were to be removed from Australia. Rather, this aspect of his claim for injunctive relief depends on concerns about his capacity to instruct his legal representatives and participate in the trial of the present proceeding while he is in Naoero.

113    In Minister for Immigration and Multicultural Affairs v MZAPC (2025) 99 ALJR 486; [2025] HCA 5 (MZAPC) at 491 [4], Gageler CJ, Gordon, Gleeson and Jagot JJ held that:

… In the exercise of its incidental and statutory power to protect the integrity of its own processes, including by “preserv[ing] any subject matter ... pending a decision” and by “ensur[ing] the effective exercise of the jurisdiction invoked”, the Federal Court has power to make an interlocutory order which restrains officers from removing an unlawful non-citizen, whether the proceeding challenges the valid application of s 198(6) of the Migration Act to the unlawful non-citizen or not. The power and the duty of an officer to remove an unlawful non-citizen from Australia as soon as reasonably practicable in s 198(6) is to be construed as accommodating to the power of the Federal Court to grant an interlocutory injunction restraining officers from removing an unlawful non‑citizen. To comply with the injunction is not to breach the statutory duty.

(Footnotes omitted.)

114    In that case, the primary judge had found that the respondent’s “ability to represent himself, and, if legally represented, maintain his instructions,” would be significantly impeded if he were removed from Australia to India and that there was “a very real prospect that due to physical harm or medical ailment” he would not be able to continue to prosecute the proceedings from India. His Honour also found that the proceeding before him was “a step along the way to bringing to fruition” the possibility, remote though it may have been, of the respondent’s being granted a visa under s 195A of the Migration Act in the exercise of the Minister’s personal discretionary power, such that “removal from Australia would practically deprive [him] of the subject matter of the proceeding (his interest in remaining in Australia)”: see MZAPC at 492 [12]-[13].

115    In MZAPC, Gageler CJ, Gordon, Gleeson and Jagot JJ observed (at 497 [31]) that “the finding by the primary judge that if the respondent were removed from Australia there was a ‘very real prospect’ of the respondent being unable to continue to prosecute the proceeding was also an independent factual foundation sufficient to enable the primary judge to grant the interlocutory injunction”. I proceed on the assumption that this basis for granting an interlocutory injunction may also be a sufficient basis in a proceeding where the relief sought is damages against the Commonwealth for past false imprisonment and assault. Moreover, Gageler CJ, Gordon, Gleeson and Jagot JJ in MZAPC held (at 499-500 [39]) that, where an injunction is granted on that basis, the statutory duty imposed by s 198 of the Migration Act, to remove an unlawful non-citizen “as soon as reasonably practicable”, “yields to the fact of the grant of the interlocutory injunction to prevent frustration of the proceeding”.

116    In BKN25 v Commonwealth [2026] FCA 350 (BKN25), as in the present case, the applicant had made a claim for damages for false imprisonment against the Commonwealth in respect of an earlier period in which he was held in immigration detention. The applicant was given a notice pursuant to s 76AAA of the Migration Act, which had the apparent effect of causing his BVR to cease to be in effect, and he was detained pending removal from Australia in accordance with s 198 of the Migration Act. The Commonwealth proposed to remove him to Naoero. The applicant sought an interim injunction to prevent his removal, including on the ground that his ability to conduct his case would adversely affected by his being in Naoero. In BKN25, Kennett J referred to relevant principles in an application such as this at [14]-[15], as follows:

Each of [the potentially relevant provisions of s 198 of the Migration Act imposing duties to remove unlawful non-citizens from Australia] is unqualified in its terms: it requires an officer to remove the applicant “as soon as reasonably practicable”. The proposed injunction would prima facie demand non-compliance with that requirement. However, the High Court affirmed in [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)). The extent of that accommodation was referred to by the majority at [37] as related to “the power of the High Court, the Federal Court and the Federal Circuit and Family Court of Australia (Division 2) to ensure the effective exercise of jurisdiction in a proceeding before them”. The nature of this power had been discussed by their Honours earlier at [23]-[29] and was encapsulated at [25] as “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”. Aspects of protecting the “integrity” of the Court’s processes “once set in motion” include “the vindication of its own authority to ensure it can determine the proceeding before it and grant final relief of utility” (at [25], referring to CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391 and Tait v The Queen (1962) 108 CLR 620 at 623-624).

Whether these observations point to a materially different standard where it is sought to restrain the exercise of a statutory power or performance of what would normally be a duty, as distinct from other kinds of proceedings where an interim injunction is sought to preserve the status quo, does not need to be definitively resolved here. However, MZAPC makes it clear that, in the present context, the appropriateness of an injunction turns on the need to protect the integrity and efficacy of the Court’s processes (that is, the ability to determine issues fairly and grant effective relief) and not the interests or preferences of the parties per se. It should also be kept in mind that courts are well accustomed to hearing and deciding cases in which there are large disparities between the parties’ resources, legal understanding and access to representation (or where one party is physically absent). Such disparities do not in themselves undermine the integrity of the Court’s processes.

117    In the present case, AJQ24 faces the difficulty that he has adduced no evidence to support his contention that removal to Naoero would prevent him from participating in the proceedings, including the mediation which is due to take place in the coming months. However, I accept that an obvious consequence of his removal to Naoero is that he will not be able to participate in a mediation in person in Australia and will not be able to instruct his legal representatives in person in Australia. I proceed on the basis that the conduct of a trial in this matter will be made more complicated, and less convenient, by reason of the incapacity of AJQ24 to be present in person during the final hearing, and that AJQ24’s participation in a mediation will be made more difficult and less convenient if he is unable to attend in person. This does not, by itself, demonstrate that his capacity to prosecute the present proceeding, or to participate effectively in it as a party and witness, would be frustrated to such an extent as to support a conclusion that the Court could not effectively exercise its jurisdiction, or that the integrity of the Court’s processes would be undermined.

118    The Commonwealth relies on an affidavit of Shan Strugnell, who is the Assistant Secretary, Offshore Program Operations and Strategy, within the Department, dated 25 August 2026. She explains her experience across various senior roles in the Department, and states that, in her current position:

(a)    she engages directly with senior officials within the government of Naoero on a regular basis by electronic communications, generally email, text and video-conferencing via Microsoft Teams;

(b)    during high-tempo periods (such as when there is a higher frequency of vessels attempting to carry unauthorised maritime arrivals to Australia), her formal engagement with the government of Naoero can occur on a daily or weekly basis;

(c)    she is the primary point of contact within Australia for the Secretaries of the Departments of Multicultural Affairs, Border and Justice Control, and Internal Affairs within the government of Naoero; and

(d)    she travels to Naoero frequently, including approximately eight times in the last 12 months, with her most recent visit being between 11 and 18 February 2026, and another visit scheduled for 26 August 2026 (ie, the day following the making of her affidavit).

119    AJQ24’s submissions are critical of this evidence, asserting that Ms Strugnell is purporting to give assurances on behalf of Naoero, where there is no basis to conclude that she is authorised to do so. However, I do not understand Ms Strugnell’s evidence to be advanced on that basis. Rather, she deposes to her belief as to facts in relation to the availability of communications facilities in Naoero which could enable AJQ24 to provide instructions to and receive advice from his legal representatives in relation to this proceeding, and to participate in the mediation and hearing of the proceeding, remotely using audiovisual technology. That factual evidence is based on her own experience, and information of which she is aware through her official roles. Some of the salient aspects of this evidence may be summarised as follows:

(1)    There are three main internet service providers in Naoero, all of which provide satellite internet services. The services are subject to occasional disruptions due to weather interference during storms, and connectivity can also be affected by general power outages. Disruptions “generally occur approximately every two weeks”. Interruptions can be mitigated by planning by reference to weather forecasts, and interruptions are generally resolved once relevant weather events pass.

(2)    Ms Strugnell engages in communications with a team in Naoero daily over Microsoft Teams, using each of the three internet service providers. She regularly participates in Teams meetings with the representatives of the government of Naoero, and has found the connections to be reliable.

(3)    Construction on a submarine cable started in 2023 and was connected to Naoero in August 2025. The cable is not fully operational but is expected to be so in the near future. Once it is operational, it is expected to provide faster, higher quality and more reliable internet on Naoero and other Pacific island countries. Weather conditions are unlikely to disrupt internet services provided by the cable when it is operational.

(4)    Settled persons are provided with a prepaid SIM card by the government of Naoero, which can be used for personal devices. Settled persons are also provided with a living allowance and have work rights, and are able to purchase access other internet and mobile services if they wish to do so.

(5)    A Naoeroan postal service and an international courier service, through DHL Express, are also available.

(6)    The “third country reception arrangements” made for settled persons are outlined to some extent in the MOU between Australia and Naoero.

(7)    Ms Strugnell has been informed that the government of Naoero provides free access to settled persons to a language and interpreting service which is “available 24 hours a day through immediate and pre-booked phone interpreting, video remote interpreting and translating of written text”.

120    Ms Strugnell also provides evidence about what she has been told by government and court officials in Naoero as to the kinds of facilities that would be made available to support “settled persons” to enable them to participate in proceedings in Australian courts. I have not treated this as an assurance, whether from the government of Naoero or from Ms Strugnell, but as her evidence of the facilities which, in her experience and from what she has been told in the course of her interactions with Naoeroan officials due to her official capacity, would likely be available, or capable of being made available, to AJQ24 if he were settled in Naoero.

121    It is not uncommon for parties, including applicants, in proceedings in this Court to participate in hearings remotely using audiovisual technology, including for final hearings and hearings that involve witnesses and interpreters. In the present proceeding, interlocutory hearings to date have regularly been conducted using such technology, with the Court and legal representatives regularly participating from three different states.

122    I accept the Commonwealth’s submission that Ms Strugnell’s evidence indicates that it is likely that there will be “an adequate practical basis” for AJQ24 to communicate with his legal representatives and to participate remotely in the mediation and other steps in the proceeding. The evidence before the Court does not establish that his removal to Naoero would prevent AJQ24 from effectively participating in the proceeding or that an order preventing his removal is necessary to protect the integrity of the Court’s processes or to enable it effectively to exercise jurisdiction in relation to AJQ24’s claims for damages.

123    For these reasons, I am not satisfied that it is necessary or appropriate to extend the interim injunction to restrain the removal of AJQ24 from Australia on the basis that his being in Naoero would undermine or frustrate the integrity of the Court’s processes.

Conclusion

124    For the reasons given above, I am not satisfied that AJQ24 has established a serious question to be tried in relation to the validity of the decisions or actions which have immediately given rise to his current detention, or in relation to the lawfulness of his proposed removal from Australia to Naoero in the near future. Nor am I satisfied that it is appropriate to restrain the exercise of the statutory duty imposed by s 198(5) of the Migration Act in order to protect the processes of the Court in relation to the present action in which AJQ24 seeks damages for false imprisonment and assault. It follows that the interim injunction preventing AJQ24’s removal from Australia should be discharged.

125    I am conscious of the possibility that others might disagree as to whether any of the arguments relied on by AJQ24 should be characterised as giving rise to a serious question to be tried. I am equally conscious that, if AJQ24 is removed from Australia to Naoero, that will have extreme consequences for him that are both immediate and enduring, and likely irreversible. If the interim injunction were to be lifted forthwith and if AJQ24 were to be removed from Australia, his capacity to exercise any right to seek leave to appeal or otherwise challenge my decision would be rendered nugatory or irretrievably frustrated.

126    In the circumstances, notwithstanding the view I have reached about the strength of the arguments on which AJQ24 seeks to rely, I consider that it is appropriate for the interim injunction restraining his removal to remain in force for a further limited period, sufficient to enable AJQ24 to file an application for leave to appeal, or such other application as he considers appropriate, and to seek to persuade another judge or court to grant a further injunction pending consideration and determination of such application. For that reason, I will order that the interim injunction be discharged with effect from a date seven days from the delivery of this judgment. Although AJQ24 offered to give the usual undertaking as to damages in connection with the extension of the interim injunction, I would not require him to give an undertaking as to damages as a condition of the continuation of the injunction for that short additional period.

Associate:

Dated:    4 September 2026