Federal Court of Australia

Ratapu v Minister for Immigration and Citizenship [2026] FCA 1330

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application is dismissed.

2.    The Applicant pay the First Respondent’s costs of the interlocutory application, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

HESPE J:

1    This application has come before me in my capacity as general duty judge. The applicant applies for an interlocutory injunction restraining the first respondent, the Minister for Immigration and Citizenship, including his officers, servants, agents, delegates and representatives, from removing him from Australia.

BACKGROUND

2    The applicant arrived in Australia in 1998, and he has a lengthy offending history.

3    On 26 March 2025, he was sentenced by the Brisbane Magistrates Court to 18 months’ imprisonment.

4    On 3 April 2025, a delegate of the Minister mandatorily cancelled the applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth).

5    On 16 February 2026, a delegate of the Minister refused to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Act.

6    On 26 February 2026, the applicant applied for a review of that decision in the Administrative Review Tribunal. On 14 May 2026, the Tribunal affirmed the decision of the delegate: Ratapu and Minister for Immigration and Citizenship [2026] ARTA 933 (TR).

7    On 11 August 2026, the applicant applied to this Court for an extension of time in which to apply for judicial review of the Tribunal’s decision. The application was supported by an affidavit and a draft originating application.

8    On 17 August 2026, the applicant was issued with a notice of intention to remove from Australia. He was notified that his impending removal from Australia would occur on 26 August 2026. The applicant’s removal was scheduled to occur at 8.15 am on that day.

9    The applicant filed an application for interlocutory relief on 20 August 2026.

RELEVANT PRINCIPLES

10    The principles applicable to the grant of an interlocutory injunction are well settled. They were summarised by Wheelahan J in the following terms in Avant Group Pty Ltd v Kiddle [2023] FCA 685; (2023) 325 IR 292 at [5]:

The organising principles for considering whether to grant an interlocutory injunction are well known. “[I]n all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction”: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 (O’Neill) at [19] (Gleeson CJ and Crennan J). The two limbs are inter-related such that the strength of the plaintiff’s case may be relevant to the balance of convenience, and may tip the balance one way or the other.

11    The two considerations of the serious question to be tried and the balance of convenience are inter-related. The ultimate question is whether, in the exercise of its discretion, the Court should make orders in the terms sought. This involves considering both the strength of the claims and defences and, in simple terms, to decide what is best to be done based on the material before it: Avant Group at [9].

CONSIDERATION

Serious Question to be Tried / Prima Facie Case

12    The primary purpose of an interlocutory injunction is to keep matters in status quo until the rights of the parties can be determined at the hearing of the suit. The condition precedent for relief is that a plaintiff seeking an interlocutory injunction must be able to show sufficient colour of right to the final relief in aid of which interlocutory relief is sought. The usual description of the sufficiency of that colour of right is the establishment of a serious question to be tried or a prima facie case: see Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5; (2025) 99 ALJR 486 at [23] (Gageler CJ, Gordon, Gleeson and Jagot JJ).

13    In determining whether there is a serious question to be tried or, to use the expression adopted by Gummow and Hayne JJ in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65], a “prima facie case”, it is necessary for the Court to form a view about whether the applicant has shown that there is a probability that he will be entitled to relief at trial. “Probability” in this context does not mean more than a 50 per cent likelihood of succeeding but means only that if the evidence remains as it is, there is a probability that the applicant will succeed: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 at 622 (Kitto, Taylor, Menzies and Owen JJ). How strong the probability needs to be depends upon the nature of the rights asserted and the practical consequences that flow from the orders sought, but the ultimate issue is whether the applicant enjoys a sufficient prospect of success to justify the preservation of the status quo: O’Neill at [65].

14    Whether there is a serious question to be tried or whether an applicant has made out a prima facie case is to be determined on the basis of the evidence remaining as it is: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 at 153 (Mason ACJ); Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 at [13] (Gleeson CJ).

15    In the present case, the applicant must demonstrate a prima facie case that there is a probability that he will succeed in being granted an extension of time to file his proposed originating application. The Court will grant an extension of time if it is in the interests of the administration of justice to do so: s 477A of the Act. In considering whether it is in the interests of justice to grant an extension, the Court looks at a range of circumstances, including the length and reason for the delay, prejudice to the respondent (or in the case of the statutory body, the interests of the public) and the merits of the underlying application: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

16    The applicant’s review period expired on 18 June 2026. He is a self-represented litigant who was, at the time of the Tribunal’s decision, incarcerated. The applicant’s evidence is that he did not receive a complete copy of the Tribunal’s reasons before 17 July 2026. The Minister disputes that evidence. There is some evidence that the applicant sought to challenge the Tribunal’s decision within time, but by a process unrecognised by the law, by sending a letter to the Tribunal on 11 June 2026. At that time, the Tribunal informed the applicant that he needed to seek judicial review in the Court. The applicant was confused by the entire process.

17    This is an interlocutory hearing with the evidence untested. Taking the applicant’s evidence at its highest, although perhaps not entirely satisfactory, there is an explanation for the delay. The issue of an extension of time in these circumstances is largely to be determined by having regard to the merits of the underlying application.

18    It appears to the Court that the applicant’s proposed originating application (and his submissions) were generated by artificial intelligence. The originating application is a confused combination of submissions and grounds. As best as can be discerned, the applicant’s proposed grounds of review are:

(1)    Denial of procedural fairness, being inadequate notice and opportunity concerning witness evidence. It is contended that during the hearing, the Tribunal asked where the applicant’s witnesses were, that the applicant had not understood that the absence of “live witnesses” would be adverse to his case and that the procedure had deprived the applicant of a fair opportunity to present his evidence on “rehabilitation, family support, accommodation, risk, community ties and the practical arrangements available upon release”. The applicant contends that the Tribunal treated the absence of oral witnesses as materially adverse, without giving the applicant reasonable advance notice that oral corroboration was an issue on which the Tribunal contemplated deciding the issue adversely.

(2)    Denial of procedural fairness, being a so-called failure to accommodate the practical constraints of incarceration. It is alleged the Tribunal did not grant an adjournment after the Tribunal raised a previously unidentified evidentiary deficiency.

(3)    Failure to consider, or legally unreasonable treatment, of relevant evidence.

(4)    Misunderstanding of the applicant’s case.

Ground 1 (inadequate notice and opportunity concerning witness evidence)

19    In relation to the first ground, it bears no relationship at all to the Tribunal’s reasons. The Tribunal accepted the evidence of the applicant’s supporting witnesses in the form of their supporting written statements: TR [65]–[67], [70]–[71], [74]–[81]. The Tribunal made no finding or drew any adverse inference that was based on, or made any comment about an absence of oral evidence. There is nothing in the Tribunal’s reasons that suggests that the weight attached to that evidence was in any way affected by the fact that those witnesses were not called to give oral testimony. There is simply nothing in the Tribunal’s reasons that suggests that the Tribunal regarded an absence of oral testimony from supporting witnesses as in any way relevant to its consideration of the written statements.

20    Even accepting the applicant’s evidence that the Tribunal did ask where the applicant’s witnesses were, there is no evidence of the context of the statement. Records show that the Tribunal in fact had informed the applicant in writing prior to the hearing (in the form of a direction made on 11 March 2026) that “a witness [would] not be called to give oral evidence before the Tribunal unless the [r]espondent require[d] the witness for cross-examination or the Tribunal itself wishe[d] to question the witness”.

21    There is simply no basis to ground 1.

Ground 2 (failure to accommodate the practical constraints of incarceration)

22    Ground 2 is a confused complaint about the Tribunal failing to take account of the applicant’s lack of legal representation and the fact that at the time of hearing, he was incarcerated. It appears to be alleged that “once the Tribunal raised a previously unidentified evidentiary deficiency which the [a]pplicant could not practicably remedy during the hearing, procedural fairness required a meaningful opportunity to deal with that”.

23    There is nothing in the Tribunal’s reasons that suggests that the Tribunal perceived or identified any such “evidentiary” deficiency in the witness evidence. The Tribunal accepted the written statements provided by the supporting witnesses. Nor is there anything in the Tribunal’s reasons that suggest it drew any inference, or made any findings based on an inability of the applicant to answer questions. There is no evidence that the applicant sought an adjournment from the Tribunal in response to some perceived difficulty with the form of the witness evidence.

24    As it best can be understood, the complaint appears to be no more than the applicant may have been able to present his case better had he had legal representation. There is no right to legal representation and its absence does not of itself create unfairness. The obligation of the Tribunal is to accord a reasonable opportunity for an applicant to present their case. It does not have to provide a perfect opportunity. As Rares, Bromwich and Raper JJ explained in Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 159; (2023) 300 FCR 106 at [31], the opportunity to present a case is required to be “a reasonable one, not necessarily an optimal one”. Furthermore, the bare fact that the applicant was in prison at the time of the Tribunal hearing is not a basis for establishing jurisdictional error. This is an issue faced by those held in immigration detention and by all prisoners incarcerated on remand: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [53] (Perram, Derrington and Stewart JJ).

25    The originating application includes, in ground 2, allegations that the applicant was questioned directly and rapidly. The allegation is entirely unparticularised and no examples were given by the applicant. The mere fact that the Tribunal may have asked questions of the applicant shows no more than the Tribunal carrying out its investigative task. It is part of a Tribunal’s task to inquire as to the facts. The Tribunal must investigate the facts for itself, unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The Tribunal, which has to reach a state of satisfaction, may want to test and probe a recounted history. It may have particular matters troubling it for resolution which require questioning and expressions of doubt, all of which are entirely appropriate: NADH v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [19] (Moore, Tamberlin and Allsop JJ).

26    The proposed originating application also includes, within ground 2, an alleged failure to consider relevant evidence or treat relevant evidence in a manner that was legally unreasonable. The ground is unparticularised and is unsupported by the record of the Tribunal’s reasons. There was no failure by the Tribunal to consider family references, the fact that the applicant had completed rehabilitation programs, his period of sobriety, or his treatment. The Tribunal accepted the statements from family members. The Tribunal accepted that the applicant had completed a program through drug court and had obtained treatment and counselling. The Tribunal also had regard to periods of sobriety from drugs and alcohol. The Tribunal did not decide the matter based on an absence of meaningful evidence of rehabilitation or community support, nor was there any rejection of corroborative material.

27    Ground 2 is simply divorced from the reasons actually given by the Tribunal and is without substance.

Ground 3 (failure to consider, or legally unreasonable treatment, of relevant evidence)

28    Ground 3 alleges the Tribunal overlooked, misunderstood or dismissed family references because the witnesses did not attend the hearing. This ground is not supported by the Tribunal’s reasons. The Tribunal engaged with and accepted the written statements from family members.

29    Ground 3 as it appears in the proposed originating application is drafted as:

Ground 3 - Failure to consider, or legally unreasonable treatment of, relevant evidence [TO BE CHECKED AGAINST THE ART REASONS]

30    Ground 3 is untethered to the Tribunal’s reasoning in this case. It is without merit.

Ground 4 (misunderstanding of the applicant’s case)

31    Ground 4 in the draft originating application is in the following terms:

Ground 4 – Apprehended jurisdictional error arising from misunderstanding of the [a]pplicant’s case [Only retain if supported by reasons or transcripts]

32    This ground is supported by particulars, relevantly including:

If the Tribunal proceeded on the basis that no supporting evidence existed, merely because witnesses were not physically or electronically present, it misunderstood the case actually advanced and failed to consider the written evidence according to law.

33    The Tribunal did not proceed on the basis that no supporting evidence existed. The premise of the ground bears no relationship to the Tribunal’s reasons given in this case. Ground 4 is without merit.

Conclusion

34    None of the grounds raised by the applicant in his draft originating application have any substance. They are the product of use of artificial intelligence. There is no relationship to the reasoning of the Tribunal.

35    At hearing, the Minister referred the Court to the Tribunal’s consideration of the legal consequences of the decision. The Tribunal’s reasons under that heading record:

86.    Legal consequences of the decision to cancel the applicant’s visa not being revoked include that upon release from prison he will remain in immigration detention pending removal from Australia as soon as practicable. He may be subject to indefinite or permanent exclusion and, face prohibition on application for other visas save for protection or a prescribed visa.

87.    Non-refoulment [sic] obligations have not been raised and the circumstances do not suggest a non-refoulment [sic] claim.

88.    The consequences identified, including exclusion from Australia are because of the ordinary and intended consequences of the mandatory cancellation of a visa.

89.    The Tribunal finds that this consideration is neutral.

36    A finding that the legal consequences of the decision under s 501CA weighed neutrally has been held to be unreasonable in some instances: see Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273 at [41] (Rangiah J); Le v Minister for Immigration and Citizenship [2026] FCA 774 at [50]–[52] (Lee J).

37    This is not a ground agitated in the proposed originating application, and sentences from Tribunal reason’s cannot be read in isolation with a keen eye to error. The Tribunal’s reasons in the present case grappled in detail with the human cost that would result from the cancellation of the applicant’s visa. The Tribunal concluded its evaluative task at TR [99]–[101], where the Tribunal said (emphasis added):

99.    The applicant’s offending has been repetitive and ongoing, escalating in seriousness and defiant of court orders or opportunities afforded to him by sentencing courts. His history of offending whether or not he has been using drugs is of particular concern, and the Tribunal has considered there to be a high risk of reoffending. The expectations of the Australian community weigh against revocation.

100.    Balancing against these considerations in particular are the real, deep and heartfelt connection the applicant has to his family, particularly W, his daughters and his grandchildren and that him not being physically present would have significant adverse impacts upon his family and the identified grandchildren. The applicant would face some impediments in reestablishing in New Zealand and suffer psychologically by the separation from family in Australia.

101.    Weighing all of these considerations together, the Tribunal concludes that the protection of the Australian community and expectations of that community outweigh the other primary and other considerations in the applicant’s favour. Accordingly, the Tribunal finds that there is not another reason to revoke the cancellation of the applicant’s visa.

38    In forming its conclusion, the Tribunal weighed the real and significant human consequences to the applicant of a cancellation decision in the applicant’s favour.

39    The applicant has failed to establish that there is a serious question to be tried for final relief and for the associated grant of an extension of time.

Balance of Convenience

40    In terms of the balance of convenience, the Court observes that the applicant’s removal from Australia does not destroy the subject matter of the proceeding although it makes it more practically difficult for the applicant to engage with the Australian court process, particularly given time differences. The applicant is to be removed to New Zealand, a first-world, English-speaking country, in an era where technology readily facilitates remote hearings. The restoration of his cancelled visa would not enable the applicant to return to Australia, it would require him to apply for another visa.

41    The applicant has also sought to rely upon an affidavit annexing hospital pharmacy records relating to his father. In that affidavit, the applicant expressed concern that if removed from Australia, he would not be able to give his father “in-person” support. The applicant is in immigration detention. If interlocutory relief were to be granted, he would remain in immigration detention and be unable to provide “in-person” support.

42    Given the lack of a prima facie case, the balance of convenience does not warrant the grant of an interlocutory injunction in this case.

DISPOSITION

43    The interlocutory application is to be dismissed with costs. Orders will be made accordingly.

Associate:

Dated:    8 September 2026